Human Experimentation Before Nuremberg

In one line

The rules of research ethics are not deductions from a theory; each one is the correction of something that was actually done.

In the wording a student can write in an exam: the framework of research ethics was constructed retrospectively, in response to a documented practice of experimentation on human beings who had not agreed and could not refuse; the participants were characteristically persons already under the control of the institution conducting the research, so that the feature which made them available was the same feature that made their consent impossible; and the resulting instruments are best read as a list of corrections rather than as a body of derived principle.

Why this chapter is here

Because the alternative is a list of rules a student cannot evaluate.

Told as abstract propositions, the ten points of the Nuremberg Code sound obvious to the point of banality. Voluntary consent is essential. The experiment should avoid unnecessary suffering. The subject should be free to end it. A reader who meets them without context assumes they state what any decent person would do anyway, and consequently does not understand why they had to be written, why the first point is the longest, or why they take the form they do.

Told against what happened, every point has an author and an occasion.

The pattern

Four features recur, and they explain the shape of every instrument that followed.

The participants were people under control. Prisoners, detainees, institutionalised patients, orphaned children, conscripted soldiers, and the inmates of asylums. The reason is administrative rather than ideological: research on human beings requires a supply of human beings who will be available, will not withdraw, and will not complain. Every institution that holds people provides that supply.

Consent was absent, and its absence was not concealed. In most of the documented cases nobody asked, because nobody thought it necessary. That is what makes the first point of the Nuremberg Code a correction rather than a restatement.

The researchers were competent and often eminent. The experiments were not conducted by charlatans. They were designed by qualified investigators, some of them distinguished, and published in the ordinary way. That is why the framework does not rely on professional standing as a safeguard.

It was lawful. As set out in [What Ethics Adds to Law], the legal order permitted it. No prosecution was available under the law as it stood.

Three settings, and what each produced

Detention. Where a State holds people, it holds a research population. The consequence, recorded in every subsequent instrument, is the rule that vulnerability arises from circumstance rather than from any characteristic of the person, which is the subject of [Vulnerable Participants and Exploitation]. A prisoner is not less able to understand than anyone else; they are less able to refuse.