Bioethics Discussion Blog has a very nice post on the subject of the relationship between ethics and law. It’s couched in general terms, but is intended to apply specifically to bioethical issues. I think the principle he relates is very insightful; it’s close to the position I have always held and would like to see more widely appreciated. Sadly, in these times, there seems to be little sense of restraint or appropriate boundaries on legal meddling with others’ behavior. Perhaps BDL, and his source, respected bioethicist Dr. Eric Loewy, are on the right track.

BDL quotes Loewy’s endorsement of the previous incarnation of BDL’s blog, and Loewy’s position on the relationship between law and ethics:

The question, of course, is “how do you translate ethics into law?”. As I tell my students: like two porcupines making love: very carefully!!! To translate ethical precepts into laws must, I think, meet at least two conditions. First it should be something about which a wide consensus exists in society (murder might be an example); secondly it should be the doing of which is not only held to be ethically wrong but “threatens the king’s peace” (the origin of law, really: in other words something which seriously impacts the peace of the realm).

Loewy – both an MD and a JD – here cites an ancient precept of common law: that the king is responsible for maintaining the peace in the public way, and the private citizen is responsible for maintaining the peace in his (always his) own home. (This is the literal source of the saying: “A man’s home is his castle” – it means that a citizen has legal dominion inside his home in just the same way that the king has legal dominion outside. It was the basic principle of English Medieval common law.) Thus certain crimes (such as burglary) violate “the freeman’s peace”, while other crimes (like highway robbery) violate “the king’s peace”. Both are actionable, but they stem from different realms of law.

Loewy cites this principle to validate the legal recognition of what classical liberals term the “public/private distinction” – the division between what the law may appropriately regulate and what it may not. Private behavior does not disrupt public order – does not violate “the king’s peace” – and so is beyond reach of the law established to maintain that peace. Public behavior which threatens public order may be regulated as necessary to preserve the king’s peace, but no more so.

I am not certain Loewy has hit the nail exactly on the head. He appears to imply that his two conditions are necessary, but not that they are sufficient, for establishing laws, but he does not say so explicitly. I would like to see this clarified. (It is the difference between saying that any proposition, to be a law, must address a matter of public order, and that any proposition which does address a matter of public order should then be a law. Very different situations.) In addition, though there is something to be said for invoking public consensus as a way of avoiding needless regulation of matters the public would like to see left free, I don’t think there is a way of making consensus either necessary or sufficient in a strict sense that works ethically. (Historical examples of public support for very bad policies make consensus a very poor rule for testing proposed policies, either postively or negatively. Whether consensus commands or merely allows a given proposition, it is no test of that proposition’s rightness.) And, finally, though the requirement of relevance to public order is important for maintaining the public/private distinction, there is no role in this scheme for a requirement that the laws actually make sense, or conform to good morals. (I suspect that was the intention behind the public-consensus requirement, but we see that that does not work.)

So I think some revisions are in order. I am very much in favor of Loewy’s public-order requirement, but this must be understood in a way that prevents abuses of individuals acting in a private capacity. (That is, the law has no business interfering in any valid agreement between a doctor and a patient over a given service the patient wants, but it must provide safeguards that patients cannot be manipulated into agreeing to services they do not want or need.) Also, there must be some requirement that the laws not merely address issues of public order, but actually positively promote order in the face of a real threat, and in keeping with the proper moral resolution to the issue at hand. (Thus, the mere fact that there is disorder over the question of abortion cannot be a reason to prohibit it in an attempt to quell that disorder. That would give violent radicals a veto over any morally permissible medical procedure – all they would have to do would be to create sufficient disruption that the state found it expedient to quash the liberties of the more law-abiding supporters of that procedure, to ameliorate violence by their opponents. Instead, the law must both authorize and enable the morally-correct solution, and also promote order by attending to those who have actually violated the king’s peace.) Nonetheless, Loewy strikes the vital line between the true need of the public for a cohesive social order in which liberty can flourish, and the mere desires of some, or even all, members of the public to dictate other members’ lifestyles.

The content of bioethics – the most central values of people’s lives, and the most basic physical and mental capacities they employ to live out and indulge those values – makes this distinction all the more significant in regard of policies that impinge on people’s liberties to pursue their health-related ends in life. Recent public controversies over health-related values make it all too clear how far the public/private distinction has been eroded in the healthcare context. Reaffirming that basic social and political principle may be a step back toward sanity in health-related lawmaking.