Health Care Analysis, Vol. 11, No.

1, March 2003 ( C 2003)

Constructing Empirical Bioethics: Foucauldian Reections on the Empirical Turn in Bioethics Research
Richard E. Ashcroft1,2

The empirical turn in bioethics has been widely discussed by philosophical medical ethicists and social scientists. The focus of this discussion has been almost exclusively on methodological issues in research, on the admissibility of empirical evidence in rational argument, and on the possible superiority of empirical methods for permitting democratic lay involvement in decision-making. In this paper I consider how the collection of qualitative and quantitative social research evidence plays its part in the construction of social order, and how this creates certain paradoxes for the normative ideal of a public bioethics. The analysis in this paper is based on Foucauldian ideas, and on recent work in the history of the human sciences. The paper closes with some open questions for theoretical work in the sociology and philosophy of bioethics.
KEY WORDS: empirical bioethics; Foucault; modernity; public participation; social research.

INTRODUCTION Empirical methods of research are becoming widespread in contemporary bioethics and medical ethics, as practised by health professionals and philosophers (Haimes, 2002; Hoffmaster, 1992; Holm, 1997; Hope, 1999; Kleinman et al., 1999; Zussman, 2000). The form of these various inquiries varies, but the moral logic is generally the same: theorists seek to frame hypothetical imperatives (on the assumption that p is true, do X) and to supply the empirical, contingent information
1 Leverhulme

2 Correspondence

Senior Lecturer in Medical Ethics, Imperial College of Science, Technology and Medicine, London, United Kingdom. should be directed to Richard E. Ashcroft, M.A., Ph.D., Department of Primary Health Care and General Practice, Reynolds Building, St. Dunstans Road, London W6 8RP, United Kingdom; e-mail: r.ashcroft@imperial.ac.uk. 3
1065-3058/03/0300-0003/0
C

2003 Kluwer Academic Publishers

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(p is true) which will complete the hypothetical imperative, thus specifying what ought to be done. Most obviously, consequentialist reasoning rests on empirical claims about which consequences are associated in a reliable, predictable fashion with the proposed action. Yet this style of moral argument is not unique in this regard. Even the attempt to specify the norms of pure practical reason depends in large part on judgements about matters of empirical fact about human rst or second nature or the world; even if many of these are alleged to be knowable a priori, it usually turns out to be much easier to discover them a posteriori. Empirical bioethics as performed by social scientists tends to be much more indirect in its approach to norm formation, closer in spirit to a hermeneutic strategy of developing imaginative understanding, yet in the last instance there is almost invariably an attempt to translate this understanding into policy relevant advice or practical guidance (Spallone and Wilkie, 2000). To some extent, therefore, the question whether ethics has an empirical moment, and thus whether ethical judgement depends on the invocation or discovery of certain empirical facts, is otiose. We should concentrate on the ne detail of how factual claims are used in ethical argument, in both logical and rhetorical terms. Historians of science have sometimes distinguished between internal and external explanations of scientic change. Internal explanations concentrate on conceptual and logical explanations of how new data change conceptions of the truth of some scientic theory or proposition. External explanations invoke causal or interpretative factors which may include social, ideological, economic or other non-scientic inuences on scientic change (Golinski, 1998; Kusch, 2000). We can make sense of the role of empirical evidence in ethics internally, by concentrating on how categorical, hypothetical and empirical claims are advanced and defended. External analysis is also possible, and would consider the construction of ethical arguments, including the identication of matters as empirical or analytic, as a social or cultural fact to be analysed and explained. Such an approach is part of the sociology of knowledge. Much of what is known as bioethnography contributes to this external analysis of moral argumentation (Hoffmaster, 1992). A slightly dull argument can be had about whether external approaches to moral argument are relativist, and whether this is a bad thing. I do not intend to address this question in this paper.

THE ARCHAEOLOGY OF BIOETHICAL KNOWLEDGE A classical method in the sociology of knowledge is to address the body of knowledge in hand by asking: what makes this discourse salient to this group of people at this time? Within this discourse, how are certain statements in a eld nonc of discourse (e es) possible and identied as valid and meaningful? This approach goes back to Durkheim (and, in philosophical form, to Kant), and its most famous recent exponent is the rst phase Michel Foucault, in his The Archaeology of

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Knowledge (Durkheim 2001; Foucault, 1972; Deleuze, 1988). In highly schematic terms, we conceive part of the intellectual history of medical ethics thus: a phase in which medical ethics was an internal part of the discourse and self-understanding of the medical profession; a phase in which this self-understanding is problematised and made a topic for reection in philosophical terms; and (the most recent) a phase in which analytical methods exhaust themselves and are supplemented by various other truth-producing strategies labelled empirical (Ashcroft, 1999). This intellectual history is an expression of deeper trends in social history and political economy, whereby social transformation destroys the taken for granted character of previously stable moral concepts. Following Adorno and others, I will for simplicity identify this as a phenomenon of modernity (Adorno, 2000; Bernstein, 2001; Pippin, 2001; Larmore, 1996). Hence the reconstruction of medical ethics which I describe here is the modernist reconstruction of medical ethics. This version of the intellectual history of medical ethics posits empirical contributions as supplying the content for an imperative structure which is increasingly posited as merely formal, lacking reexive validity and more than minimal action-guiding features (Priest, 1987; Adorno, 2000). A statement on its own is almost meaningless: it only acquires meaning when related to other statements, in the context of a discourse. Often a statement will be have a tacit element of meaning, which may be quite allusive, and whose full signicance might only become visible (if ever) in the context of the history of the subject and the relationships between speakers and writers who contribute to the subject. Consider a statement such as the following:
68% of patients believe that the information they receive prior to general anaesthesia is sufcient

This could be taken to be rather meaningless on its own, and its meaning and rhetorical and normative force depend on where it ts into the discourse of medical ethics. It may come to imply that there is something we ought to do (for instance, carry on as now, or improve information sheets) (Searle, 1964). We will return to this statement as an example in the next section of this paper. Taking this perspective, the central issues of empirical medical ethics are not those to do with the logic of empirical material in ethical argument, but rather those concerning the socially and culturally warranted conditions of valid utterance in the modernist reconstruction of medical ethics. In what follows, I will concentrate on empirical statements about attitudes, beliefs and values of the public at large (or sections thereof). Most of the literature on empirical ethics and most contributions to this eld concentrate on certain kinds of social inquiry. From a sociology of knowledge perspective our question is not Is this particular study methodologically sound? or Can this hypothetical imperative be completed by this body of factual statements?, but What are the nonc conditions of possibility for this e e? We are in a terrible difculty with this kind of inquiry, however. I can make this clear by borrowing Lyotards conception

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of a language game (Lyotard, 1984, 1988). We are asking something like If this is a valid move in some language game, what can we infer about the rules of the language game of which this is a valid move? The statements conditions of enunciation are hugely underdetermined by the information we have in front of us. However, we have some rules of reconstruction of our own to assist us. We can ask:

r Who are the social subjects addressed (interpellated) by this discourse? r What sort of agencyif anydo they have? (Akrich and Latour, 1992) r Whose utterances are authoritative and when? r What are the dynamics of participation in the discourse?
THE CONDITIONS OF PRODUCTION OF SURVEY DATA To illustrate how this process works, lets take our consent example again. The statement was:
68% of patients believe that the information they receive prior to general anaesthesia is sufcient

(Althusser, 1996)

To make sense of such a statement, we have to infer that a certain social survey was carried out, in which one of the questions was something like Do you think you have (or had) been given enough information to make a decision on whether you will agree to a general anaesthetic? We have to posit a population that was sampled, and make some assumptions about how this sampling was done, and so on. Some of this information is no doubt available to us if we have the protocol before us, or if the statement comes from a published paper. In other words, when we accept such a statement as reliable, we make some assumptions, perhaps very broad brush assumptions, about the scientic validity of the way the statement was produced. Thus, this statement rests on a canon of interpretation founded on a canon of survey methodology. But these canons of methodology and interpretation rest on a certain web of social and linguistic techniques which render the sample (a) stable enough for the statistics of survey analysis to function (e.g., one can derive data from individuals which can be additively combined across individuals) and (b) representative enough to permit generalisation from this sample to other similar samples, and other individuals (in some circumstances), across time and space. In other words, the survey method relies on the construction of a docile social body, which is the subject of reliable quantitative measurement. For the survey method to have validity, we must further assumeor make sure thatthe social body remains docile to the extent that inference from sample S1 at T1 is possible to sample S2 at T2. Broadly speaking, we are assuming that agency on the part of individual members of the social body drops out of the analysis, that numerical properties of the sample are numerical properties of the population (to a certain

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margin of error) because the population will not experience sudden change due to the agency of its component subjects (Foucault, 2000; Hacking, 1990; Porter, 1996). Survey technique therefore rests on certain social conditions of possibility. Some kinds of survey are weaker than others vis-` a-vis the social body; they lack much generalisability, since the stability condition cannot be assumed, or can only be assumed to hold for a limited time or in a limited population. Other kinds of survey are stronger, inasmuch as the stability condition holds more widely. Yet stability itself is no more of a natural property than the social pseudo-properties measured by the surveys it underwrites. Stability of a population, or a sampling technique, is a social achievement, generally requiring some form of social maintenance. One way surveys can acquire high generalisability across time in a population is through insertion of the techniques of data collection, analysis and feedback into the processes of social constitution themselves (Latour, 1987; Giddens, 1984). The essence of bureaucracy is not the collation and presentation of statistical data, so much as the construction of a social world designed to produce statistical data in the right form, thus creating the conditions of its own measurability (Hacking, 1990; Porter, 1996; Gigerenzer et al., 1989).

FREE SUBJECTS AND DATA SUBJECTS: THE FIRST PARADOX OF EMPIRICAL ETHICS We come to a paradox in empirical ethics. To the extent that ethics concerns individual liberation and the creation of a space for free expression and pursuit of autonomously framed goals, it stands over against a method of inquiry whose conditions of possibility and maintenance involve reconstruction of society in such a way that data collection is possible in an orderly way and that practical inference on the basis of statistical analysis will succeed. Yet to the extent that social order is unknown and unpredictable to agents, on the assumption that all other agents are pursuing autonomously chosen goals and that in the absence of shared traditions these goals are themselves not mutually coherent, such agents increasingly depend on statistical information about the social order in order for courses of action to be available which have reasonably predictable consequences (Baker, 1975; Giddens, 1984). This thesis has some analogies with Ulrich Becks ideas concerning Risk Society (Beck, 1992). On the one hand, social life is becoming more uncertain, because the intermixing of environmental and social change makes us more aware of what is unknown and unpredictable (including the moral operating assumptions of others). On the other hand, we possess ever more extensive techniques for converting these uncertainties into quantiable and measurable risks (probabilities associated with adverse outcomes). In a nutshell: freedom and discipline are co-determined (compare Rose, 1999).

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To summarise: social surveys rest on a certain assemblage of techniques of social manufacture and control which create the meaning and possibility of surveys. As is well known, surveys call certain categories of subjects into existence (Sloane Rangers, Yuppies, Bobos and the rest [York and Jennings, 1996; Brooks, 2001]). To some extent surveys maintain these categories; hence ethnic monitoring forms play a signicant role in constituting identities along ethnic lines, thus permitting ethnic monitoring. A favourite example is Foucaults argument that far from suppressing sexuality, the Victorians more or less invented it by their endless devising of categories of transgression and their relentless monitoring of these categories (Foucault, 1979). Yet, as Foucaults example shows, there is much more to the techniques of constituting the social body than simple domination and routinization. For example, subjects respond to social scientic categories and reexively refashion their meanings. To some extent, and under some conditions, such categories become instrumental in subjects self-identication. This is a highly complex matter, and I can only point it out here, but it is important to note Foucaults thesis that power is productive of society, and underlies and constitutes social life in all its forms, rather than simply being the force possessed by the few to dominate the many. In our consent example, we can imagine a discussion round the meaning of the 68% which turns, essentially, on how far the member of the public faced with this datum identies with the 68% or with the 32%, and how this enters into his or her self-fashioning and hence his or her decision-making. On the other side of the table, we can imagine the professional users of this datum debating whether to say that 68% is enough (so the information policy will apply to all), whether to produce a further information leaet for the dissatised 32% (but only on request, since the rst 68% are happy), or whether to rework the information given and re-survey in the hope that more than 68% will accept the later version. To some extent this involves making sense of the idea that members of the 68% share a characteristic which members of the 32% lack (or vice versa), or deciding that this is meaningless. In his last work Foucault invites us to go further (Foucault, 1979, 2000; Rose, 1999). It is not simply a matter of reconceiving the social conditions of possibility of data in terms of techniques of domination, production and control. We must instead consider the ways in which the conditions of utterance of this sort of social information is actually productive of forms of life which were previously impossible for the speaking subjects in question.

THE IDEOLOGY OF QUALITATIVE RESEARCH PRACTICE Let us consider a different form of social inquiry, the focus group or in-depth interview. In most research inquiry, considerable attention is paid to nding ways of, on the one hand, eliciting the views and attitudes of respondents to some novel research question while, on the other hand, doing so in such a way as to preserve

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their research-na ve attitudes. However this ignores the ways in which research participation is a social intervention with consequences unknowable a priori. A simple example; asking people on the bus about cloning might have no useful research outcome (or it might be fascinating). But it may well have unexpected social consequences, such as an expectation that they have a right to participate in consultations in future, and a belief that the views expressed has some validity and importance, hitherto unsuspected by the respondent. Research into Ethical, Legal, and Social Issues in the new genetics does not discover these issues so much as create them and with unpredictable effects, as we see in the case of Genetically Modied foods (Bauer and Gaskell, 2002; ONeill, 2002). It is arguable that by consulting about the ethics of such new technologies, the impression is created that the public has a certain decision-making power over the adoption or shaping of the technology, that it has this power more generally (and non-consultation becomes suspicious), and that consultation is somehow preferable to other approaches to decision-formation. Further, much social research in the bioethics area involves stimulating people to think about issues they may never have considered before, or only in an unfocussed way, or have thought of as interesting but not a priority to the individual. Hence attitudes are often made, not found, and may be unstable, or sensitive to framing effects and a variety of contextual factors more associated with the methodology chosen than with any underlying social variables. At a more fundamental level, the increasing focus on using qualitative methods in public consultation, in market testing of policies and interventions, and in impact assessment in Health Technology Assessment risks becoming a novel form of social domination and control (Reuzel, 2001). Precisely because such research methods, in the policy arena, are intended not as decision-making fora for democratic political practice, but as means for knowledge production and the foreclosure of policy debates, the apparent commitment to giving a voice to the voiceless, and hearing the authentic voice of the powerless is mere mystication (Adorno, 1973). Systematic qualitative research focuses on the production of speaking subjects who can respond to semi-structured inquiry (thus taking the researchers discursive repertoire as the original frame of discussion). The recorded nonc speech itself is rendered as data (e es without subjects) to be transformed and routinised, and as such is in direct contrast to the ideological image of qualitative research as empowered participation in political discourse. Further, the routinisation of qualitative research methods encourages the production of reexively self-monitoring bioethical subjects, much as Foucault suggested was becoming the case with the development nineteenth and twentieth century health practices (Foucault, 2000; Rabinow, 1996; Rose, 1999). None of this is to challenge the individual research act in its political authenticity or liberatory potential; rather this challenge questions the invention of qualitative bioethical inquiry as a system of knowledge production, and as a claimed move to more participatory political praxis. The essence of qualitative inquiry is reexive, sensitive attention to the voice of the participants, since the reduction of participants to subjects is

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precisely what qualitative inquiry is intended to resist. Yet this is a delicate and fragile practice, hardly strong enough to resist translation into a systematic social practice of social constitution in the interests of the forces it claims to oppose. Further questions about the relation between voice and text and the relative ethical relationships implied in spoken or textual (communicative participation or data-driven governance) modes of inquiry should also be considered in any deconstruction of the empirical turn in modernist bioethics (Derrida, 1981).

REPRESENTATION AND INTERVENTION: THE SECOND PARADOX OF EMPIRICAL BIOETHICS A second paradox of empirical bioethics is this: social research into ethics presents some questions as under-determined by theoretical reection and hence open to determination by the expressed or implied will or cultural heritage of the people, and sets out to discover the content of that will or heritage. But it does so in such a way that the representation of this will is pre-shaped and its reception is prepared by the preconceptions of the researcher (and sponsor). The wish to hand over the determination of ethical content to the public is undermined by the presuppositions of the researcher about how his or her public is dened and what counts as ethical content in what is recorded of the publics utterances. Above I sketched a little theory of the way empirical data from surveys or qualitative inquiry achieves its status as data through a panoply of social techniques, many of which must become invisible or taken-for-granted in order for the survey to be credible. This social technology has implications for the theory that empirical ethics is somehow more democratic or more contextual than sherry-sipping ethics (Bennett and Cribb, 2001). I would claim that these reections apply to more or less any social research methodology, precisely in that these rest on an idea that there is something to be researched, and that there is a cognitive and social asymmetry between researcher and researched. Social research implies a power gradient between the researcher, as the agent with the power to determine which questions are asked, how they are interpreted, and when ndings are to be accepted or rejected, andmost of allthe power to dene and maintain the population as such. Against this thesis we can point out that some populations are dangerous and unco-operative, and that maintaining a research population often requires considerable tact, charm and diplomacy. Additionally, the researcher is often the wrong side of a power balance between the researcher and the sponsor of the research. Nevertheless, I would maintain that while the gradient may be steeper or shallower, it is rarely at. In a democratic society, the bad conscience of the researcher will make him or her pay homage to the power of the researched by representing the research as being in the public interest, or for the greater good. As such, the researcher is presented as the agent of societys own (perhaps inarticulate) intentions. Relatively

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few researchers are prepared to present themselves as practical, in the sense of creating social reality. CONCLUSION In conclusion, let me restate my main theses. Firstly, I argued that empirical ethics arises under a certain social and historical formation, labelled modernity, in which moral or ethical categories appear to be empty of content, and whose content can only be supplied by investigation of socially expressed preferences or values, and by democratic (or quasi-democratic) determination of these values and preferences as normatively binding for us, now. Secondly, I described the way in which one social research method, the survey, rests on a range of social technologies which constitute society in such a way that the survey method can succeed. Thirdly, I described the way in which these social technologies undermine the project of democratic creation of values through the creation of two paradoxes, the rst concerning the relationship between freedom and the creation of social order, and the second concerning the relationship between the researcher as creator of reality, and the researcher as reporter of reality, insofar as this relates to the authentic reporting of the democratic social will. Throughout I underlined the ways in which social researchs contribution to ethical praxis is fatally compromised by the unarticulated role of power relations in constituting the practice of social research and its object. The theory described in this short paper is naturally rather a gloomy one. Social researchers have debated for generations the role of the researcher, particularly in the eldwork context, and have devised a variety of ways to equalise the power relation between researcher and researchedfor instance in giving qualitative research subjects veto over the interpretations proposed of their narratives, or by reexive awareness of the authorial self and its interests in the presentation of research ndings (Touraine, 1984; Woolgar, 1988; Mulkay, 1985; Bourdieu and Wacquant, 1996). However, this merely underscores the deep paradox at the heart of the modernist reconstruction of ethics: how can we nd out how to live ethically, if we do not yet know what ethics requires? The conclusion I draw from this is that while empirical material can and should inform ethics, there is still much to be said about the way ethical material informs what we take to be empirical (Ashcroft, 1995). Some questions remain undiscussed in the empirical ethics literatureand are arguably repressed in the participation literature. Before closing, I mention some for further research. These include:

r What is the political order called into existence by the move toward r What is the social order constituted by a praxis of consultation and
routinised qualitative social inquiry? consultation?

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r What is the utopian moment in such processes of social reconstitution?

What order is desired by such processes? What disorder or misorder is theorised as the rationale for such processes? r What is the moral form of the empirical order of discourse? Is the social effect of this order of discourse relativism or intolerance or something else? r There is clearly no analytical connection between democratic and empirical orders of discourse. So how has it come to be assumed that there is? Empirical bioethics can perhaps best be understood as a sort of politicsa set of ways of arguing and making decisions and representations to maintain a sort of civic stability while changing it in the interests of the competing or co-operating agents making up society. The analysis I have presented here, while no doubt sketchy and provisional, shows that this sort of politics, perhaps as any politics, involves the unstated and tacit as much as what can be stated explicitly, and the exercise of power whether nakedly or in the construction of roles and discourses which shape and guide action is never eliminable. This implies the necessity of a deconstruction of its premises, to show how they work, and how they could work differently. But is also implies the necessity of this same politics to continue the conversation, to seek to elicit other voices, to challenge the tacit assumptions of bioethics by bringing them face to face with other views, equally deeply embedded. To take the questions I have posed in this paper as somehow discrediting the enterprise of empirical (or indeed theoretical) bioethics would be to assume that to question is to discredit, and to identify an insufciency as a fatal aw. All conversation is insufcient: that is the joy of it! REFERENCES
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