Bioethics and law: A developmental perspective

Bioethics

Volumn 11, Issue 2, 1997, Pages 91-114

  Van Der Burg, Wibren ^a  

^a NONE

Author keywords

[No Author keywords available]

Indexed keywords

ANALYTICAL APPROACH; ARTICLE; BIOETHICS; BIOETHICS AND PROFESSIONAL ETHICS; CULTURAL ANTHROPOLOGY; DOCTOR PATIENT RELATION; ETHICAL THEORY; ETHICIST; ETHICS; EVALUATION; EXPERT WITNESS; FREEDOM; GOVERNMENT REGULATION; HISTORY; HUMAN; HUMAN RIGHTS; INTERDISCIPLINARY COMMUNICATION; INTERNATIONAL COOPERATION; JURISPRUDENCE; LAWYER; LEGAL APPROACH; MEDICAL ETHICS; MEDICINE; MORALITY; MOTIVATION; PATERNALISM; PATIENT ADVOCACY; PATIENT RIGHT; PERSONAL AUTONOMY; PHYSICIAN; POLICY; POLITICAL SYSTEM; POLITICS; PROFESSIONAL PRACTICE; PUBLIC RELATIONS; SOCIAL CHANGE; SOCIAL CONTROL; SOCIAL JUSTICE; SOCIAL PSYCHOLOGY; SOCIAL WELFARE; THEORETICAL MODEL;

ANALYTICAL APPROACH; BIOETHICS AND PROFESSIONAL ETHICS; LEGAL APPROACH;

BIOETHICAL ISSUES; BIOETHICS; CULTURAL DIVERSITY; DEMOCRACY; ETHICAL THEORY; ETHICISTS; ETHICS; ETHICS, MEDICAL; EVALUATION STUDIES; EXPERT TESTIMONY; FREEDOM; GOALS; GOVERNMENT REGULATION; HISTORY; HISTORY, 20TH CENTURY; HUMAN RIGHTS; HUMANS; INTERDISCIPLINARY COMMUNICATION; INTERNATIONAL COOPERATION; INTERNATIONALITY; INTERPROFESSIONAL RELATIONS; JURISPRUDENCE; LAWYERS; MEDICINE; MODELS, THEORETICAL; MORALS; PATERNALISM; PATIENT ADVOCACY; PATIENT RIGHTS; PERSONAL AUTONOMY; PHYSICIAN-PATIENT RELATIONS; PHYSICIANS; POLITICS; PROFESSIONAL AUTONOMY; PUBLIC POLICY; SOCIAL CHANGE; SOCIAL CONTROL, FORMAL; SOCIAL CONTROL, INFORMAL; SOCIAL JUSTICE; SOCIAL VALUES; SOCIAL WELFARE; VIRTUES; WESTERN WORLD;

EID: 85045586534     PISSN: 02699702     EISSN: None     Source Type: Journal    
DOI: 10.1111/1467-8519.00048     Document Type: Article

References (75)

1. My analysis in this article is primarily based on the Dutch and American situations, because I know them best and because they seem to be the two countries in which the liberal model (as sketched below) has gained most support and in which the postliberal tendencies are most clearly to be seen. Yet, the intertwinement of bioethics and health law is a broader phenomenon, which can be found in most of the Anglophone countries and many European countries as well. For the US, see Schneider, C.E. 1994, 'Bioethics in the Language of the Law', Hastings Center Report, July-August 1994, 24, no. 4 p. 16-22.
2. Trappenburg, M., Soorten van gelijk. Medisch-ethische discussies in Nederland (diss. Leiden), Zwolle: W.E.J. Tjeenk Willink, 1993 argued that, in the Netherlands, these two topics are a 'legally structured territory', which means that it has been impossible to introduce other problem definitions and normative notions in the public debate than those dictated by legal doctrine. Cf. also Schneider op. cit.
3. Trappenburg, M., Soorten van gelijk. Medisch-ethische discussies in Nederland (diss. Leiden), Zwolle: W.E.J. Tjeenk Willink, 1993 argued that, in the Netherlands, these two topics are a 'legally structured territory', which means that it has been impossible to introduce other problem definitions and normative notions in the public debate than those dictated by legal doctrine. Cf. also Schneider op. cit.
4. Cf. Burg, W. van der, P. Ippel, et al., 'The care of a good caregiver. Legal and ethical reflections on the good health care professional', Cambridge Quarterly of Health Care Ethics, Vol. 3, nr. 1 Winter 1994, p. 38-48.
5. Cf. the two court decisions mentioned in Davis, D. 1995, 'Legal trends in Bioethics', Journal of Clinical Ethics, 6 1995 p. 187-192, one in the US and one in the Netherlands.
6. For the Dutch situation on euthanasia, see Battin, M. The Least Worst Death: Essays in Bioethics on the End of Life, New York: Oxford University Press, 1994. 130ff. and Griffiths, J. 1995 'Recent Developments in the Netherlands Concerning Euthanasia and other Medical Behavior that Shortens Life', Medical Law International, 1 1995 p. 347-386.
7. For the Dutch situation on euthanasia, see Battin, M. The Least Worst Death: Essays in Bioethics on the End of Life, New York: Oxford University Press, 1994. 130ff. and Griffiths, J. 1995 'Recent Developments in the Netherlands Concerning Euthanasia and other Medical Behavior that Shortens Life', Medical Law International, 1 1995 p. 347-386.
8. In some court cases on euthanasia and other issues, Dutch ethicists have acted as expert witnesses; in many other cases, lawyers and judges have explicitly quoted ethical opinions. For instance, in the Dutch case referred to in note 5 above (the case at the Court in Alkmaar concerning a severely handicapped neonate), a professor in medical ethics, Inez de Beaufort, submitted an elaborate expert opinion on the ethical issues involved. It should be added that, in the Netherlands, expert witnesses are considered to be fully impartial, their expenses being paid by the courts, rather than to be witnesses on behalf of and paid by one of the parties. For a critical reflection on the latter role in the US legal system, see Caplan, A.L. 1991, 'Bioethics on Trial', Hastings Center Report 1991 p. 19-20.
9. For example, most of the case material in Beauchamp, T.L. and J.F. Childress, Principles of Biomedical Ethics New York: Oxford University Press, 1994: 509f. is based on court cases.
10. Cf. Mason, J.K. and R.A. McCall Smith, Law and Medical Ethics, London: Butterworths, 1994.
11. In France, the idea that bioethics should be the subject of a specialised (philosophical or theological) discipline has met strong resistance. In Sweden, both health law and bioethics are still in a premature stage and, partly as a result of its legal positivist tradition, the relation between the two is rather weak.
12. Moreover, the connection exists only in a specific part of health law; the part that is concerned with the bureaucratic organisation of the health care system usually has little connection to ethics.
13. For other examples of how fields of law are connected to morality, see Lee, S. Law and Morals, Oxford University Press, 1986, 18-21.
14. The models developed here are ideal-types. Though the essentials can be recognised in reality as characteristic ways of ordering the normative dimensions of health care practice, reality is more nuanced, and usually combines elements of various models.
15. This sketch is partly based on Kuitert, H.M. Mag alles wat kan? Ethiek en medisch handelen, Baarn: ten Have, 1989.
16. The latter addition is essential because in strongly segmented societies like the US or the Netherlands, on some issues no broad, social consensus existed, but only a group consensus within the group of Roman Catholics or within the group of orthodox Protestants.
17. Kuitert, op. cit.: 66 expressed this by saying that, from the profession's point of view, the technically necessary and the morally obligatory are 'interfolded' as it were and often cannot be distinguished.
18. When artificial insemination by donors was introduced, many countries discussed whether this should be regarded as a form of adultery and, hence, as a criminal offence. Cf. Mason and McCall Smith op. cit.: 53.
19. Cf. Kuitert, op. cit.: 64-71.
20. Cf. Dworkin, R. (ed.) The Philosophy of Law, Oxford University Press, 1977. Feinberg, J., The Moral Limits of the Criminal Law New York: Oxford University Press, Vol. I Harm to Others, 1984, Vol. II Offence to Others, 1985, Vol. III Harm to Self, 1986, Vol. IV Harmless Wrongdoing, 1990, and Dworkin, G. (ed.) Morality, Harm, and the Law,Boulder: Westview Press, 1994.
21. Cf. Dworkin, R. (ed.) The Philosophy of Law, Oxford University Press, 1977. Feinberg, J., The Moral Limits of the Criminal Law New York: Oxford University Press, Vol. I Harm to Others, 1984, Vol. II Offence to Others, 1985, Vol. III Harm to Self, 1986, Vol. IV Harmless Wrongdoing, 1990, and Dworkin, G. (ed.) Morality, Harm, and the Law,Boulder: Westview Press, 1994.
22. Cf. Dworkin, R. (ed.) The Philosophy of Law, Oxford University Press, 1977. Feinberg, J., The Moral Limits of the Criminal Law New York: Oxford University Press, Vol. I Harm to Others, 1984, Vol. II Offence to Others, 1985, Vol. III Harm to Self, 1986, Vol. IV Harmless Wrongdoing, 1990, and Dworkin, G. (ed.) Morality, Harm, and the Law,Boulder: Westview Press, 1994.
23. Cf. Dworkin, R. (ed.) The Philosophy of Law, Oxford University Press, 1977. Feinberg, J., The Moral Limits of the Criminal Law New York: Oxford University Press, Vol. I Harm to Others, 1984, Vol. II Offence to Others, 1985, Vol. III Harm to Self, 1986, Vol. IV Harmless Wrongdoing, 1990, and Dworkin, G. (ed.) Morality, Harm, and the Law,Boulder: Westview Press, 1994.
24. Cf. Dworkin, R. (ed.) The Philosophy of Law, Oxford University Press, 1977. Feinberg, J., The Moral Limits of the Criminal Law New York: Oxford University Press, Vol. I Harm to Others, 1984, Vol. II Offence to Others, 1985, Vol. III Harm to Self, 1986, Vol. IV Harmless Wrongdoing, 1990, and Dworkin, G. (ed.) Morality, Harm, and the Law,Boulder: Westview Press, 1994.
25. Cf. Dworkin, R. (ed.) The Philosophy of Law, Oxford University Press, 1977. Feinberg, J., The Moral Limits of the Criminal Law New York: Oxford University Press, Vol. I Harm to Others, 1984, Vol. II Offence to Others, 1985, Vol. III Harm to Self, 1986, Vol. IV Harmless Wrongdoing, 1990, and Dworkin, G. (ed.) Morality, Harm, and the Law,Boulder: Westview Press, 1994.
26. Cf. Dworkin, R. (ed.) The Philosophy of Law, Oxford University Press, 1977. Feinberg, J., The Moral Limits of the Criminal Law New York: Oxford University Press, Vol. I Harm to Others, 1984, Vol. II Offence to Others, 1985, Vol. III Harm to Self, 1986, Vol. IV Harmless Wrongdoing, 1990, and Dworkin, G. (ed.) Morality, Harm, and the Law,Boulder: Westview Press, 1994.
27. Beauchamp and Childress op. cit.: 78 consider the postulates of individual autonomy, rights against the state and neutrality towards conflicting values to be the central elements of liberalism. My conception of liberalism here is both broader and narrower. Neutrality is not essential, but the concept of rights applies also to other institutions than the state and to other individuals, like health care professionals.
28. Cf. Leenen, H.J.J. 'Vijfentwintig jaar gezondheidsrecht', in: J.H. Hubben and H.D.C. Roscam Abbing (eds.), Gezondheidsrecht in Perspectief, Utrecht: De Tijdstroom, 1993: 21; Clouser, K.D. and Kopelman, L.M. 1990, 'Philosophical Critique of Bioethics: Introduction to the Issue', Journal of Medicine and Philosophy, 15 1990, 2: 121-122.
29. Cf. Leenen, H.J.J. 'Vijfentwintig jaar gezondheidsrecht', in: J.H. Hubben and H.D.C. Roscam Abbing (eds.), Gezondheidsrecht in Perspectief, Utrecht: De Tijdstroom, 1993: 21; Clouser, K.D. and Kopelman, L.M. 1990, 'Philosophical Critique of Bioethics: Introduction to the Issue', Journal of Medicine and Philosophy, 15 1990, 2: 121-122.
30. This approach seems dominant among positivists like Hans Kelsen, but is most obvious in the way many legal textbooks tend to present 'the law' on certain subjects: as a coherent doctrine of norms, based on a collection of legal materials like statutes and case-law.
31. Lon L. Fuller, The Morality of Law, New Haven: Yale University Press, 1969 and Ronald Dworkin (though the latter is sometimes ambiguous in this respect) exemplify this approach. I should add that most philosophical authors try to combine both approaches, but the resulting theories are never fully adequate. The two approaches seem partly incommensurable. Therefore they can, in my view, never be combined in one coherent theory, just as we may regard an electron as particle or as wave, but not as both at the same time.
32. Examples abound, which shows how dominant this way of thinking is (e.g., Rawls, Hare, Gert).
33. MacIntyre, A. After Virtue, Notre Dame: University of Notre Dame Press, 1981 and philosophers of medicine in the hermeneutic tradition are the obvious examples here.
34. Cf. Hart, H.L.A. 'Positivism and the Separation of Law and Morals', in: R. Dworkin (ed.), The Philosophy of Law, Oxford University Press, 1977, pp. 17-65.
35. Cf. Brom, F.W.A., J.M.G. Vorstenbosch and E. Schroten, 'Public Policy and transgenic animals: case-by-case assessment as a moral learning process', in: P. Wheale and R. von Schonberg (ed.), The Social Management of Biotechnology: Workshop Proceedings, Tilburg University, Faculty of Philosophy, 1996 p. 73-86.
36. Cf. Beauchamp and Childress op. cit., and Gillon, R. (ed.) Principles of Health Care Ethics, Chichester: John Wiley and Sons, 1994. Even many critics of 'principlism' still take a product view, like in the theory of moral rules suggested by Clouser, K.D. and Gert, B. 1990, 'A Critique of Principlism,' Journal of Medicine and Philosophy, 15 1990, 2, p. 219-236.
37. Cf. Beauchamp and Childress op. cit., and Gillon, R. (ed.) Principles of Health Care Ethics, Chichester: John Wiley and Sons, 1994. Even many critics of 'principlism' still take a product view, like in the theory of moral rules suggested by Clouser, K.D. and Gert, B. 1990, 'A Critique of Principlism,' Journal of Medicine and Philosophy, 15 1990, 2, p. 219-236.
38. Cf. Beauchamp and Childress op. cit., and Gillon, R. (ed.) Principles of Health Care Ethics, Chichester: John Wiley and Sons, 1994. Even many critics of 'principlism' still take a product view, like in the theory of moral rules suggested by Clouser, K.D. and Gert, B. 1990, 'A Critique of Principlism,' Journal of Medicine and Philosophy, 15 1990, 2, p. 219-236.
39. A simple illustration: Some years ago, I was invited to present an analysis of the ethical aspects of a controversial epidemiological research project of HIV infection. On this occasion I noticed that the analysis by the legal expert was almost identical to mine, with one major exception: his appeal to the authority of law. The basic principles from which we both started - respect for physical integrity and for privacy - are laid down in the Dutch Constitution as constitutional rights. When, on another occasion, I was invited to discuss both the ethical and the legal aspects, it was, therefore, no problem to integrate these into one coherent story.
40. The trend to structure the physician-patient relationship in a contractual form is also a sign of this minimalism. Cf. May, W.F. 'Code and Covenant on Philosophy and Contract?', in: S. Gorowitz et al. (eds.), Moral Problems in Medicine, Englewood Cliffs (New Jersey): Prentice Hall, 1983; Schneider op. cit.: 18.
41. The trend to structure the physician-patient relationship in a contractual form is also a sign of this minimalism. Cf. May, W.F. 'Code and Covenant on Philosophy and Contract?', in: S. Gorowitz et al. (eds.), Moral Problems in Medicine, Englewood Cliffs (New Jersey): Prentice Hall, 1983; Schneider op. cit.: 18.
42. The distinction between the morality of duty and the morality of aspiration is at the core of Fuller op. cit. and also Selznick, P. The Moral Commonwealth: Social Theory and the Promise of Community, Berkeley: University of California Press, 1992. The implications for the health care professional have been elaborated in Van der Burg and Ippel et al., 1994, 'The care of a good caregiver. Legal and ethical reflections on the good health care professional', Cambridge Quarterly of Health Care Ethics, Vol. 3, nr. 1 Winter 1994, p. 38-48.
43. The distinction between the morality of duty and the morality of aspiration is at the core of Fuller op. cit. and also Selznick, P. The Moral Commonwealth: Social Theory and the Promise of Community, Berkeley: University of California Press, 1992. The implications for the health care professional have been elaborated in Van der Burg and Ippel et al., 1994, 'The care of a good caregiver. Legal and ethical reflections on the good health care professional', Cambridge Quarterly of Health Care Ethics, Vol. 3, nr. 1 Winter 1994, p. 38-48.
44. The distinction between the morality of duty and the morality of aspiration is at the core of Fuller op. cit. and also Selznick, P. The Moral Commonwealth: Social Theory and the Promise of Community, Berkeley: University of California Press, 1992. The implications for the health care professional have been elaborated in Van der Burg and Ippel et al., 1994, 'The care of a good caregiver. Legal and ethical reflections on the good health care professional', Cambridge Quarterly of Health Care Ethics, Vol. 3, nr. 1 Winter 1994, p. 38-48.
45. Cf. Ippel, P. 'Gezondheidsrecht en gezondheidsethiek', in: W. van der Burg en P. Ippel (ed.), De Siamese tweeling, Assen: Van Gorcum, 1994; Schneider, op. cit.: 18.
46. Cf. Ippel, P. 'Gezondheidsrecht en gezondheidsethiek', in: W. van der Burg en P. Ippel (ed.), De Siamese tweeling, Assen: Van Gorcum, 1994; Schneider, op. cit.: 18.
47. With respect to abortion, this conclusion only follows once it has been decided that the foetus is not a full person.
48. In some cases, of course, the opposition against (partly) legalising euthanasia is liberal as well; consider, for instance, the argument that it will lead to situations in which the elderly will feel under pressure to ask for euthanasia and for that reason, in order to protect their autonomy, we should not legalise euthanasia. Most objections, however, are non-liberal, like reference to the sanctity of life or protecting the distinct medical ethos that doctors should never kill.
49. Cf. the Patient Self-Determination Act in the US, or the new Constitutional clauses in the Netherlands on privacy and physical integrity. In Leenen et al., op. cit., a broad study of health law in most European countries, it is argued that there has been an 'emergence all over Europe of a social and cultural reassertion of the values of individual freedom and self-determination that sustain the concept of patients' rights' (at vii).
50. Cf. Vandenbroucke, P. 1990, 'Medische ethiek en gezondheidsrecht: hinderpalen voor de verdere toename van kennis in de geneeskunde?', Nederlands Tijdschrift voor Geneeskunde 1990, 5-6.
51. Cf. Shelp, E.E. (e.a.) Virtue and Medicine: Explorations in the Character of Medicine, Dordrecht: Reidel 1985, and the literature inspired by Gilligan, C. 1982, In a Different Voice: Psychological Theory and Women's Development, Cambridge, Mass: Harvard University Press, 1982.
52. Cf. Shelp, E.E. (e.a.) Virtue and Medicine: Explorations in the Character of Medicine, Dordrecht: Reidel 1985, and the literature inspired by Gilligan, C. 1982, In a Different Voice: Psychological Theory and Women's Development, Cambridge, Mass: Harvard University Press, 1982.
53. Cf. Campbell, A.W. 'Ideals, the Four Principles and Practical Ethics', in: R. Gillon, Principles of Health Care Ethics, Chichester: John Wiley and Sons 1994, 241 makes a related point: we cannot fully understand moral principles unless we see that they are connected to more fundamental ideals. Cf. Van der Burg and Ippel et al. op. cit.: 42.
54. Cf. Campbell, A.W. 'Ideals, the Four Principles and Practical Ethics', in: R. Gillon, Principles of Health Care Ethics, Chichester: John Wiley and Sons 1994, 241 makes a related point: we cannot fully understand moral principles unless we see that they are connected to more fundamental ideals. Cf. Van der Burg and Ippel et al. op. cit.: 42.
55. Cf. Rothman, B. Katz The Tentative Pregnancy, New York: Viking, 1986.
56. As suggested by Trappenburg op. cit.
57. Cf. Mason and McCall Smith op. cit.: 14-17; Schneider op. cit.: 21-22.
58. Cf. Mason and McCall Smith op. cit.: 14-17; Schneider op. cit.: 21-22.
59. For similar criticism, see Holm, S. 1994, 'American Bioethics at the Crossroads: A critical Appraisal', European Philosophy of Medicine and Health Care, 2:2, 1994, p. 6-31.
60. This example has been elaborated in Van der Burg, W. and H. Oevermans 'Grondrechten in het gezondheidsrecht', in: W. van der Burg and P. Ippel (ed.), De Siamese tweeling, Assen: Van Gorcum, 1994: 187-203.
61. This critical reappraisal of the rights orientation is what is now happening, indeed, in Dutch health law. Its 'founding father', H.J.J. Leenen, has gradually retreated from his earlier stance that these rights are the 'pillars' of health law; compare the first (1978) and third (1994) editions of his Handbook Gezondheidsrecht.
62. Cf. Schneider op. cit.
63. Cf. Legemaate, J. Recht en realiteit: Juridische normering en het therapeutisch proces (oratie Rotterdam), Houten: Bohn Stafleu Van Loghum, 1994: 23.
64. Cf. Mason and McCall Smith op. cit.: 16-17.
65. According to Mason and McCall Smith op. cit.: 70, in the Anglophone world, almost no legal system has criminalised the procedure as such - Queensland being the exception.
66. Mason and McCall Smith op. cit.: 16 seem to suggest that in the English courts this self-restraint is now, indeed, being practiced, whereas they had expressed their fears as to the contrary in a previous edition.
67. There is a growing recognition of the need for a plurality of methodological and normative-ethical approaches; see, e.g., Gustafson, J.M. 1990, 'Moral Discourse About Medicine: A Variety of Forms', Journal of Medicine and Philosophy, 15 1990 p. 125-142, and even Beauchamp and Childress op. cit.: 111. See also Van der Burg, Ippel, et al., op. cit.
68. There is a growing recognition of the need for a plurality of methodological and normative-ethical approaches; see, e.g., Gustafson, J.M. 1990, 'Moral Discourse About Medicine: A Variety of Forms', Journal of Medicine and Philosophy, 15 1990 p. 125-142, and even Beauchamp and Childress op. cit.: 111. See also Van der Burg, Ippel, et al., op. cit.
69. There is a growing recognition of the need for a plurality of methodological and normative-ethical approaches; see, e.g., Gustafson, J.M. 1990, 'Moral Discourse About Medicine: A Variety of Forms', Journal of Medicine and Philosophy, 15 1990 p. 125-142, and even Beauchamp and Childress op. cit.: 111. See also Van der Burg, Ippel, et al., op. cit.
70. Even in legal philosophy, however, the liberal rights orientation will not always be adequate, as R. Dworkin's Life's Dominion, New York: Alfred A. Knopf, 1993, shows. The most ardent supporter of rights theories had to switch to value theories in order to present an adequate analysis of legal issues connected to bioethics.
71. Cf. Van der Burg and Ippel et al. op. cit: 40.
72. Schneider op. cit. makes a similar point.
73. Schneider op. cit.: 21 gives a similar example: the question whether we have a moral obligation to donate blood tends to be restructured as the question whether there should be a legal obligation.
74. C. Van der Burg, W. 1996, 'Legislation on Human Embryos: From Status Theories to Value Theories', Archiv für Rechts-und Sozialphilosophie, 82: 1 1996, 73.
75. Cf. Nonet, P. and Selznick, P. Law and Society in Transition: Toward Responsive Law, New York: Harper and Row, 1978: 115.