TOWARD A CONSTRUCTIONAL APPROACH TO SOCIAL PROBLEMS: ETHICAL AND CONSTITUTIONAL ISSUES RAISED BY APPLIED BEHAVIOR ANALYSIS

Since constitutionality has been raised as an issue, we shall open our discussion with an examination of the constitution as a guide for a discussion of ethical and legal issues raised by applied behavior analysis. The arguments that will be developed are that its safeguards provide an excellent guide for program development of an effective application of behavior analysis to problems of social concern and that the violation of these rights can be counterproductive to the patient, to the aims of institutional agents whose incentives are therapeutic, and to the therapeutic aims of the society which sponsors the patient-therapist (programmer, teacher, etc.) relation. Such violation may, however, serve other ends which, in our society at least, are not considered consonant with the social contract assumed to underlie its polity.

THE CONSTITUTION As CONTRACT

Behavioral contracting is a proclaimed feature of many programs in behavior modification. The contracting may be explicit, as when a professional and patient agree, in writing, on outcomes. The explicit agreement may be verbal. When the negotiations are between two consenting adults, the rationale is familiar to practitioners of the better-established psychotherapies. The contributions of applied behavior analysis do not simply lie in the explicitness of goals or outcomes (called "targets") and the necessary negotiations, but in the products of the added requirement that the procedures directed toward these also be explicit, in parallel with the procedural requirements of programed instruction. On the other hand, the contracting may be implicit, as when someone buys a programed text in calculus in the hope of being able to apply its concepts and procedures to mathematical problems upon completion. Needless to say, there is no record of successful suit for breach of contract against a publisher if the outcome specified in the title is not attained, nor am I familiar with any in psychotherapy. However, the reader is undoubtedly aware of the controversy over accountability in education. The discussions are being extended to psychotherapy, and explicit societal consequences may in the future be applied to this area as well. At present, however, the psychotherapeutic contract, as the term is variously used in these helping professions, is not legally binding ( for an opinion on the legal and other implications of the contractual relationship between physician and patient, see Fletcher, 1972).7 Accordingly, the term "contract," while lacking the full legal sanctions typical of commercial transactions, does share with these a quid-pro-quo relationship between consenting adults such that, if one party behaves in one way, the other party will behave in another way. The outcome agreed upon by both may thereby be attained-that is, both parties will "work toward" its attainment in recognizable ways.8

The Constitution may be viewed as a statement of governmental organization and powers, or as a contract between a federal government on the one hand and its constituent states and people on the other. So considered, all legislators and judicial and executive officers "both of the United States and of the several States" are specifically required to promise to support the terms of this contract (Article VI). Although there are no specific parallel requirements enumerated for another party to the contract, namely, the people, the historical context of the Constitution suggests their scope. Rousseau's The Social Contract (1762) relates the legitimacy of government to consent of the governed, in contrast to an alternative approach9 of compliance to rules for obedience decreed unilaterally by a higher source. The Declaration of Independence explicitly states that governments "(derive) their just Powers from the Consent of the Governed." Further, "Governments are instituted among Men" in order to "Secure these Rights," namely, "life, liberty, and the pursuit of happiness." Where these are abrogated, it is the people's "Right, it is their Duty, to throw off such Government, and to provide new Guards for their future Security." The converse is that the contractual obligations on the people, when a government is established with their consent, is to support that government in all the ways that are negotiated.