James G. Hodge, Jr. and Lawrence O. Gostin
The law plays an important role in the understanding and resolution of problems in medical ethics. In this chapter we explain the relation between the law and philosophical ethics and discuss how the law is used to inform and address ethical issues in medicine in the United States (Zatti 1998). We attempt to do this through an examination of the structure and content of the legal system. Too often scholars examine ethical issues in medicine through a narrow lens that focuses on only one facet of the law, primarily case law, and thus fail to examine the larger structure through which cases are decided (and other laws are passed) in the legal system. We believe it is important to understand the basic structure of the legal system in order to examine how the law relates to medical ethics. As a result, we briefly discuss the structural elements of U.S. law.
In subsequent sections, we analyze and discuss the sorts of legal techniques used to address medical ethics inquiries in legislative, executive, and judicial venues. We critique the appropriateness of legal resolution of issues in medical ethics, including a discussion of the strengths and weaknesses of a legal approach to these issues. Finally, we address the types of legal training that can be helpful in applying a legal method to medical ethics and conclude with a synopsis of the many types of resources that exist to facilitate such applications.
Medical ethics and the law are distinct and yet interdependent. The study and analysis of ethical problems in medicine arises from a moral tradition that serves as a guide to human conduct (Gaare 1989). The moral sphere may be viewed as a preexistent truth or simply as a product of human intelligence (Capron 1979). Medical ethics may be approached broadly by philosophy through consequentialist (e.g., utilitarianism), Kantian, Rawlsian, principlist, or other theories (Finnis 1983; Beauchamp and Childress 1994, 5662). From these analyses flow moral rights that may justify or criticize human conduct in medical settings.
From the law and the legal system flow legal rights and responsibilities that may authorize or prohibit human behavior. A law may be defined broadly as a rule enacted by government. In the United States, this means rules enacted by representative government at the federal, state, and local levels (Black 1979, 795). Laws represent the collection of enforce-