Udo Schüklenk - This Is Bioethics

1.21 In the light of these observations, several questions arise: (1) what exactly is the difference between ethics and law? (2) Should the law enforce morality? (3) How should individuals, especially health professionals, behave when confronted with a law they believe to be unjust?

1 You may see that ethics and law have certain similarities: they are both social devices to make it possible for people to live together in relative harmony and for society to function. They both offer mechanisms for dealing with areas of life where interests conflict. Of course, the sanctions that the law has are much more far‐reaching than those of ethics, including criminal and civil proceedings, punishments and penalties. The sanctions that ethics has, however, are not negligible. While ethics relies on the power of arguments as far as its action guidance and justification are concerned (as opposed to legislation and precedent in the case of law), the power of persuasion can be considerable. Some have suggested that if there is a strong ethical consensus on a particular matter, say that slavery is bad, what likely would enforce this consensus – if there were no law prohibiting slavery – is societal pressure such as peer pressure. Societal disapprobation can be a very powerful instrument in the absence of legally enshrined norms in a particular matter. Arguably these societal norms can be a force for good as well as a force for bad depending on the circumstances – for example disapproval of voluntary childlessness as ‘selfish’ may make it difficult for people to choose that. You will surely be able to think of other possibilities.In addition to sanctions, law and ethics differ in scope. Here is what the American Medical Association has to say on the subject of the difficult relationship between law and ethics: ‘Ethical values and legal principles are usually closely related, but ethical obligations typically exceed legal duties.’ Although there is clearly some overlap where we regard actions as both morally wrong and rightly prohibited by law, such as violence against the person and theft, morality covers a much wider area of our relationships with each other, with other species, and indeed our responsibilities for our own health. There is a question about how far the law should extend into policing the moral sphere. Think of examples such as drug use, sexuality, and smoking.

2 Should the law, then, be designed to enforce morality? A lot of ink has been spilled in response to this question. The American Medical Association probably got it right: in a good society ethical values and the law should be reasonably closely aligned. There is a potential ambiguity here, however. Some people might think it important that the law is attuned to the social values prevailing at the time (which may be discriminatory as in the examples above), rather than to what can be justified by ethical argument. It is the latter that is relevant in the context of the present discussion. It is important to note, however, that the law can play an important role in changing attitudes. Outlawing discrimination, for example, as well as arguing against it from an ethical point of view, can have an influence in changing attitudes in the longer term. So legalizing marriage equality may play a part in decreasing anti‐gay sentiments, for example.Is there a criterion to aid us in deciding where the law should not intervene? A liberal legal philosopher, Joel Feinberg, argued some time ago that what he describes as ‘harmless immoralities’ should not be outlawed (Feinberg 1990). What are harmless immoralities? Basically they are immoralities that affect only the person who, being fully informed and cognizant of the relevant information, voluntarily engages in immoral conduct. This begs the question, of course, whether there can even be such a thing as a ‘harmless immorality’. It is worth noting perhaps that there are some kinds of ethical theories, going broadly under the term ‘consequentialist theories’ that deny that there is such a thing as a ‘harmless immorality’. To their mind only harmful conduct can sensibly constitute something immoral. Calling something a ‘harmless immorality’, on that account, would at best be considered a contradiction in terms.

3 It is always an open question whether the law has got it right on a given issue. This can put people in a difficult situation when they are confronted by a situation where they think the law is wrong. Think of examples of this, such as a doctor who thinks it would be right to prescribe a prohibited substance to bring relief to a patient, or to perform a termination of pregnancy in a society where it is unlawful. Or a doctor being required to participate in a torture program in the context of an oppressive dictatorship. The American Medical Association says:In some cases, the law mandates unethical conduct. In general, when physicians believe a law is unjust, they should work to change the law. In exceptional circumstances of unjust laws, ethical responsibilities should supersede legal obligations.The fact that a physician charged with allegedly legal conduct is acquitted or exonerated in civil or criminal proceedings does not necessarily mean that the physician acted ethically.

1.22 As we know, working to change the law can take a long time, and does not help in immediately pressing cases. In some circumstances, it can require significant personal costs. The arguments for such legal change, as well as the arguments concerning choice of action in difficult circumstances, are the proper subject matter of ethics. The fact that an action is unlawful, or legally required, is clearly an important factor, but not the conclusive one, in considering its ethical justifiability.

1.23 You will find that in many an ethics debate arguments for or against a particular solution are framed in the language of rights. While the topic of rights is enormous and multidimensional, it is worth pausing at this point to reflect on the difference between legal and moral rights. Let’s think of examples. Abortion is an obvious one. Does the (legal) prohibition of abortion by giving (legal) protection to the fetus violate a woman’s (moral) right to control her body? Are our (moral) autonomy rights violated in societies where assisted dying remains criminalized? Almost certainly you will be able to add your own examples here.

1.24 Of course, rights exist in law when they are backed by legislation, contract or precedent. Both legal and moral rights may be described as negative or positive. The negative ones are rights not to be interfered with or prevented from doing something, such as expressing publicly an opinion that might offend others.

1.25 While such a negative right may require social resources to protect it, positive rights are generally more expensive in that they require resources. A positive legal right could be your entitlement to access welfare payments in case you become unemployed. Such a legal right only exists in societies where such a right has been established.

1.26 What do these kinds of positive and negative legal rights have in common? One commonality is that the state or some other clearly identifiable institution is going to back them up. The state will enrol you in its welfare program in case you register with the unemployment benefits program on your becoming unemployed. Similarly, in the free speech case: the state will not only not interfere with your offense causing sermon, it might even have to deploy police to protect your legal right to say what you wish to say. Enforcement then is a crucial feature of legal rights, so is their codification in law .

1.27 When we turn to moral rights, these are not backed up by law, but by argument. Of course, an argument that someone has a moral right to something may be used to argue for a legal right. A context in which the difference between negative and positive rights becomes very clear is in the context of reproduction. Think of the right not to be involuntarily sterilized (negative right) versus the right to assisted reproduction (positive). These can be regarded as moral rights which may also be backed up by law (but historically have not been in all times and places, as we have seen). Moral rights such as these can be the conclusions of moral argument. For example, an argument that there are moral reasons to give you a certain social good, such as access to assisted reproduction, could conclude by using the language of rights, i.e., say that because of x, y and z, you have a right to it. It could, for instance, be argued on consequentialist grounds that it is good for society as a whole if individuals who cannot reproduce without technological have rights to access such assistance. On the other hand, there are certain moral views that take rights as the starting points, rather than the conclusions of moral argument. On such a view, however, it is negative rights that are typically regarded as starting points and prior to positive ones. For example, if we take as a starting point that humans are by nature autonomous beings, and that interference with an individual’s freedom needs to be justified, this might be expressed in terms of individuals having rights, period. It is not that they are given rights in order to promote some social good.