Wagging the Watchdog: Law and the Emergence of Bioethical Norms
Gross, Michael L.
Medicine and Law: World Association for Medical Law 2002; 21(4): 687-711
Bioethics offers an ideal vantage point to study how law and ethics affect the emergence of norms. Moral philosophy traditionally places itself in the role of prime mover, the normative force behind social, cultural and legislative change. But some bioethical norms, particularly those associated with emerging right-to-die norms in the mid 1960's and through the late 1980's, did not originate in this way. Instead, legal reasoning and judicial decision-making brought about rapid change in bioethical norms almost excluding moral philosophy in the process. Judicial decision-making has prompted legislation, molded public opinion, guided medical practice and shaped moral thinking. The reasons for this are not difficult to understand. Legal reasoning, usually in the form of risk management, replaces moral reasoning because it is cognitively more comfortable, rational and parsimonious. This process creates undue pressure on the judiciary to undertake tasks for which it may not be well trained, while at the same time offers a challenge to ethicists to advocate interdisciplinary, deliberative and public forums to attenuate the undue influence of the law.