Medical Law, Morality and Legal Duties - Essay Example

?Medical Law, Morality and Legal Duties Introduction The field of medical law has caused important and taxing questions to arise, particularly in relation to the proposed conflict between moral obligations and legal duties. The debate considers whether legal duties are based on moral obligations or vice versa, and touches on some delicate topics. This paper will examine this issue in light of the law related to abortion and euthanasia. It will ultimately be argued that while the majority of situations convey that morality provides a sturdy basis upon which the law is perched, there exist situations in which the law can be said to derogate from moral principles in the interests of certainty. Main Body Bentham enquired why we obey rules, as he deeply criticised the unpredictability and uncertainty of common law, preferring codified law so that man need but open the book in order to inform himself what…acts it is his duty to perform.1 Bentham assigned rules status by embodying them within a whole body of rules in a manner inseparably connected.2 There is of course no lack of theorists who refute this; Austin merely described law as a rule, backed by sanction and enforced by a sovereign.3 Yet the existence of non-legal moral obligations serves to weaken Austin’s view. Hart on the other hand viewed law as a social phenomenon,4 explainable by reference to human social practices in society. Rules are thus made law by way of the rule of recognition which transforms rules into legal duties according to the common, public standard.5 In closer relation to the subject matter of this paper: does the law on abortion and euthanasia reflect moral obligations of society, or communal outlooks? Hart’s stance on the general issue is evident: he claims that legal duties, in order to be valid, must be effectively accepted as common public standards of official behaviour.6 Although a positivist, there are connotations of morality Hart’s theory, which requires that legal duties correspond to moral obligations in order to have legal effect. If reference is to be made to social norms which provide the basis of validity for legal duties, the proposition coincides rather well.7 Positivists do not deny a connection between law and morality; they argue that legal duties are not affected by moral obligations.8 However, heated public debate on abortion and euthanasia strongly suggest otherwise. Yet, it could be argued that despite the fact that many may disagree with it, the law in the UK prohibits euthanasia. Does this mean that the criminalisation of euthanasia would reflect moral obligations? It can be accurately stated that perhaps the most important moral obligation is to preserve the sanctity of life. In this respect, legal duties have been created by moral obligations. Yet the law on abortion permits what could be termed as the killing of a human being. How can the law allow acts which essentially obliterate the moral obligation to preserve life? The conflicting elements provided by this proposition highlight the complexity of the interplay between legal duties and moral obligations; not every situation is able to be dealt with similarly, despite the fact that it may essentially be based on the same moral or legal basis.9 It is not a simple application of moral obligations to legal duties or vice versa – there is a complex interconnection between conflicting rights and clashing elements. Yet the fact that some may not agree with legal duties in relation to these aspects does not necessarily reduce their validity as law per se. Indeed, Kelsen states that the science of law does not prescribe that one ought to obey the commands of the creator,10 though Hart refers to notions of fairness in order to argue the importance of legal duties.11 If one applies this issue to the courtroom, the attention appears to turn to moral obligations as bases of legal duties. Presented with often vague legislative provisions of law, judges must apply such vague terms to complex, real-life situations. Therefore, a law which prohibits abortion may not take into account the case in which the mother’s life is in danger if she continues with the pregnancy. The stance of UK law on abortion reflects this approach. Yet it fails to recognise equally valid arguments in relation to euthanasia. If a mother can legally decide what happens to her body, why can’t a terminally ill patient who wishes to take their own life? It is proposed that judges can, do, and must make reference to moral obligations when interpreting and applying the law. Yet are these obligations based on legal duties? Not necessarily, and if so, the connection is unclear and vague at best. The terribly tragic case of Re A (Conjoined Twins)12 highlights the difficulties which arise when neither the legal duty nor the moral obligation can provide the answer. Yet such cases highlight the overriding relevance of moral obligations when legal duties are simply not sufficient. Dworkin claims that this is perfectly natural for the diversity suggests that there is no single social rule that validates all relevant reasons…for judicial decisions.13 Thus, it is arguable that the determination and application of legal duties often depends a great deal on moral obligations, for the latter allows the former to be applied correctly to each individual situation.14 This gathers much ground in the argument that moral obligations not only form the basis for legal duties, but that they also determine how legal duties are to be enforced (or mitigated) in each set of circumstances. This argument is given even greater strength when one’s attention is drawn to the ever-evolving content and nature of law. This is far beyond legal change as a result of legal sources;15 it is rather the direct influence of moral obligations on legal duties.16 Indeed, Raz claims that the mere existence of legal duties is suggestive of an underlying set of moral obligations,17 yet any connection between the two is not necessarily indicative of just law. It is rather to state that moral obligations serve as a base standard to which the law must correspond in order to enforce its legal duties effectively and justly.18 While debates often conclude that assisted suicide will eventually succumb to legalisation, it has constantly been stressed that legalisation will depend on a variety of factors, particularly public opinion.19 Recent cases such as Pretty20 and Purdy21 have accentuated the need for at least some form of clarity in the stance of legal duties in relation to assisted suicide. While the 1961 act decriminalised suicide, it retained the prohibition of assisted suicide; the conflict here between the two concepts is difficult to reconcile.22 Recent cases have emphasised the need for the law to modernise itself in line with public opinion.23 This again places the balance in favour of moral obligations creating legal duties. The legal meaning of section 2 of the Act has come under much criticism in terms of how it deals with assisted suicide,24 and such criticism strongly suggests that the legal duties it defines are not on a par with moral obligations. The injection of European Human Rights law into UK law has further complicated the issue, and it has been held that the latter is in conflict with the former, especially when attention is turned to the protection of right to private life under section 8 of the European Convention of Human Rights.25 This again suggests that moral obligations form legal duties, for tense moral issues surround how conflicting rights should be dealt with, to which the law must correspond. Section 2’s central purpose is obviously aimed at preventing crime and instances of abuse; this is perhaps the only reason that its conflicts with article 8 have thus far been permitted.26 Indeed, the main cause of refusals to decriminalise euthanasia is based on fears of abuse27 and the presumption that those who are terminally ill would be pressured to agree to an assisted death.28 Yet while the law alone appears lacking in this area, there is evidence of moral obligations gradually coming into play – this is particularly noticeable in the allowance of refusing life-prolonging treatment.29 A great deal of disapproval surrounds the law; fears of abuse appear to have been exaggerated30 and the distinction between refusal of life prolonging treatment and passive assisted suicide is rather dubious.31 This could thus be concluded to mean that, while legal duties can form moral obligations and vice versa, the former is problematic and is not able to overcome problems when it conflicts with basic moral outlooks. Indeed, studies show that public attitudes towards euthanasia are in favour of legalisation;32 there hence appears to be a conflict between current legal duties and moral obligations. While one could list certain legal criteria for legalising euthanasia,33 the current law has not been able to create the moral obligation to preserve life even when one does not wish to live.34 Perhaps one of the most problematic issues surrounding euthanasia is the conflict between the sanctity of life and respect for individual autonomy. While the law generally protects individual autonomy in many circumstances, the decision as to which should prevail when it conflicts with the sanctity of life principle has been left largely untouched by the law.35 This could be interpreted to reflect the difficulty of moral obligations in this respect, the futility of determining when life is more valuable or worthy and whether healthy individuals have a greater right to life than the ill. It is important to recognise that doctors have never been under a duty to preserve life at all costs,36 and the moral minefield of determining when that duty ends has largely proven to be moral rather than legal. Indeed, it could be argued that, if and when moral obligation finally gives birth to the legal duty to allow others to help the terminally ill to end their lives, generally good consequences will emerge.37 History suggests that the tension between moral obligation and (the conflicting) legal duty has not yet reached a point of irreconcilability. Yet, when such tension does become unbearable it is arguable that any change in legal duty will be due to the demands of (conflicting) moral obligations. There will indeed exist the constant threat of great damage to the sanctity of life if the legal duty to assist others in committing suicide were ever formed.38 Yet the sanctity of life as an absolute, non-derogable moral value should not be quoted in order to prevent such a legal duty from being created.39 The inability of the law to distil every situation down into a simple black and white balance of good and bad gives strength to the argument that moral obligations form legal duties. Morality is indeed much more complex than right or wrong, though this does not preclude the possibility of a rational weighing of good and bad in each individual set of circumstances.40 While the law attempts to be objective, it is evident that subjectivity tends to creep into some decisions and delicate issues – this again serves to suggest that moral obligations create legal duties.41 Abortion serves as another example of the claim that moral obligations form legal duties rather than vice versa. Abortion directly involves the consideration of whether the law should permit individuals to prevent the birth of their unborn child in both usual circumstances and in difficult circumstances such as when the foetus is disabled or the result of rape.42 It is primarily evident that the law has sought to adequately balance the rights of the foetus with the rights of the female. Changes in the law indeed suggest that moral obligations yet again control and depict legal duties. Yet how can we arrive at evidence of moral obligations forming legal duties, as has been argued? Again, the principle of the sanctity of life can be turned to, defined as perhaps one of the fundamental aims of both legal duty and moral obligation.43 It is argued that the changes in attitudes towards the sanctity of life are reflected in legislation; though this stance is not without its critics who argue that no claims can be made on that basis.44 Yet how else could changes in legislation, the legalisation of abortion, and the constant shifts in the specific application of the law be explained? The law’s liberal attitude towards disabled foetuses reflects moral obligations in relation to the value of life that can be expected and the apparent lower duty (and obligation) to preserve lesser quality life.45 It could even be argued that where the legal duty concerns conflicts between individual autonomy and the sanctity of life of the foetus, the moral obligations are indeed the autonomy and the sanctity of life.46 Thus emerges the law’s balancing of morality’s principles. A doctor’s legal duty to preserve life is thus mitigated when the life has less of a right to existence by way of the overriding mother’s autonomy and life.47 While legal duties form images of the individuals that they intend to regulate, the way in which the duties apply to the moral obligations of their subjects is quite another matter.48 The law on abortion could thus be interpreted as an attempt at balancing the negative and positive effects of abortion on both society and individual women. One can thus observe a complex co-operation between moral obligation and legal duty, though it is evident that the former has a control over the latter which requires eventual submission if in conflict. When legal duty conflicts with moral obligation, undesirable effects occur until the former has no other option than to correspond with the latter.49 The moralistic facet of abortion is based on interests and rights and is largely embodied in the law through the understanding that disabled foetuses, for example, do have their best interests served by abortion because they are being saved from a life of suffering.50 This approach has however been taken to the extreme by certain theorists who claim that in certain severe cases of foetal disability, abortion should be obligatory.51 The law has however restricted such extreme positions, and it thus seems that while moral obligations serve as a basis for legal duties, legal duties in turn serve to limit the potential extremities of moral obligations. This is because the notion of rights in relation to abortion and legal duties ensures that the individual is active, free from coercion, and operating within structures that exist to preserve his liberty.52 A common sense approach to moral obligations in line with legal duties invests in the woman the right to decide on issues concerning her body, her life and her autonomy and an individual in possession of rights.53 While pro-life candidates would argue that this approach completely ignores the foetus’s right to life,54 the moral obligation requires that the woman’s rights prevail. Accordingly, legal duty follows because the issue concerning what counts as human life is not certain enough to allow the foetus’s right to life to trump the woman’s right to autonomy.55 Again one can observe legal duties limiting the scope of moral obligations, while at the same time being based on those very moral obligations. Although some seek to segregate the relevance of morality from the content of legislation,56 it is clear that what is morally acceptable in any given society is more often than not embodied in legislation. Conclusion It is therefore submitted that moral obligations form the basis for legal duties, though the two do not always correspond. When such a lack of correspondence exists, tension will increase until the legal duty has no other option than to follow and coincide with moral obligation. The potential extremities of moral obligations due to their largely subjective content are likewise suitably restricted by legal duties which act as a form of pragmatic boundary. While euthanasia currently remains illegal, it is predictable that when the discrepancy between moral obligation and legal duty becomes irreconcilable, the legal duty will change. One would be taxed to find a historical example when legal duty caused moral obligation to change artificially. The concept of rights as possessed by individuals with legitimate interests is at the root of moral obligations; they defend certain widely held moral views.57 How those rights and interests are to be protected and enforced is assigned to legal duty to determine which may differ between societies,58 but which nonetheless applies structurally the same. Attempts to lay claim to the comparatively powerless application of morality to law59 have not as of yet provided convincing arguments which refute the evidence of shifting legal duties to correspond with moral obligations. References Books Bentham, J, Of Laws in General, HLA Hart ed. (Athlone Press 1970). Bentham, J, ‘An Introduction to the Principles of Morals and Legislation’ in JH Burns & HLA Hart eds, The Collected Works on Jeremy Bentham (Athlone Press 1970). Callahan, D & Keown, J, Euthanasia Examined: Ethical, Clinical and Legal Perspectives (Cambridge University Press 1995). 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Keown, J, Euthanasia, Ethics and Public Policy (Cambridge University Press 2002). Laing, JA, ‘Innocence and Consequentialism: Inconsistency, Equivocation and Contradiction in the Philosophy of Peter Singer’ in JA Laing & DS Oderberg eds, Human Lives: Critical Essays on Consequentialist Bioethics (Macmillan 1997). Miller, JA, The Limits of Bodily Integrity: Abortion, Adultery and Rape Legislation in Comparative Perspective (Ashgate 2007). Oderberg, DS, Applied Ethics: A Non-Consequentialist Approach (Blackwell 2000a). Oderberg, DS, Moral Theory: A Non-Consequentialist Approach (Blackwell 2000b). Raz, J, Practical Reason and Norms (Princeton University Press 1990). Reagan, LJ, When Abortion was a Crime: Women, medicine, and Law in the United States, 1867-1973 (University of California Press 1998). Simmonds, N, Central Issues in Jurisprudence: Justice Law and Rights (3rd ed, Sweet & Maxwell 2008). Wacks, R, Understanding Jurisprudence: An Introduction to Legal Theory (Oxford University Press 2005). Waluchow, WJ, Inclusive Legal Positivism (Clarendon Press 1994). Journals Bennion, FAR, ‘Assisted Suicide: A Constitutional Change’ [2009] 173 CL&JW 519-523. Chapple, A, Ziebland, S, McPherson, A & Herxheimer, A, ‘What People Close to Death Say About Euthanasia and Assisted Suicide: A Qualitative Study’ [2006] 32 JME 12. Dahl, E & Levy, N, ‘The Case for Physician-Assisted Suicide: How can it Possibly be Proven?’ [2006] 32 JME 6. Finnis, JM, ‘Bland: Crossing the Rubicon’ [1993] 109 LQR 329. Gertler, GB, ‘Brain Birth; A Proposal for Defining when a Fetus is Entitled to Human Life Status’ [1985-1986] 59 California Law Review 1061. Glover, J, Causing Death and Saving Lives (Penguin 1977) 146. See also: S Sheldon & S Wilkinson, ‘Termination of Pregnancy for Reason of Foetal Disability: Are there Grounds for a Special Exception in Law?’ [2001] 9 Medical Law Review 2. Hart, HLA, ‘Are There Any Natural Rights?’ [1955] 64 Philosophical Review 170. Hursthouse, R, ‘Virtue Theory and Abortion’ [1991] 20 Philosophy and Public Affairs 3. Keown, J, ‘Restoring the Moral and Intellectual Shape to the Law After Bland’ [1997] 113 LQR 481. Marquis, D, ‘Why Abortion is Immoral’ [1989] 86 Journal of Philosophy 4. Minor, HD, ‘The Moral Obligation as a Basis of Liability’ [1923] 9 Virginia Law Review 6. Raz, J, ‘Hart on Moral Rights and Legal Duties’ [1984] 4 Oxford Journal of Legal Studies 1. Seneviratne, M, ‘Pre-Natal Injury and Transferred Malice: The Invented Other’ [1996] 59 MLR 6. Smartt, U, ‘Euthanasia and the Law’ [2009] 173 CL&JW 7. Steinbock, B, ‘The Case for Physician Assisted Suicide: Not (Yet) Proven’ [2005] J Med Ethics 31. Tur, RH, ‘Legislative Technique and Human Rights: The Sad case of Assisted Suicide’ [2003] 5 Crim LR 3. Web Publications British Medical Association, ‘End-of-Life Decisions: Views of the BMA’. BMA Ethics. 1999. Source: www.bma.org.uk/images/endoflifedecisionsaug2009_tcm41- 190116.pdf. Accessed: 8-2-2012. Green, L, ‘Legal Positivism’. Source: http://plato.stanford.edu/entries/legal-positivism/. Accessed: 9-2-2012. Jones, DA, ‘Sleepwalking into Euthanasia’ The Tablet, 8 August 2009. Source: http://www.thetablet.co.uk/pdf/3264. Accessed: 5-2-2012. Cases Re A (Conjoined Twins) [2000] 4 All ER 961, [2001] 1 FLR 1 CA. R v Brown [1993] 2 All ER. R(Pretty) v DPP (Secretary of State for Home Department) [2002] 1 AC 800. R (Purdy) v DPP [2009] UKHL 45. Read More