Public bioethical discourse (or public policy discourse) is actually a meeting ground of the diverse moral traditions that make up our society. Some of these moral traditions have religious inspiration, but that does not necessarily disqualify them as contributors to the broader discussion. Their contributions will be appropriate and effective to the extent that they can be articulated in terms with a broad if not universal appeal. In other words, faith language that offers a particular tradition's beliefs about God as the sole warrant for moral conclusions will convince only members of that tradition.
1.17 What we are looking for, therefore, are reasons that can best be described as public reasons16. Public reasons don’t rely on us making metaphysical assumptions about gods, afterlives or any number of other beliefs requiring a significant leap of faith, so to speak. Instead they aim to persuade us by way of arguments that reasonably educated people from different cultural and religious backgrounds or other ideological persuasions can accept (Quong 2013). This approach is much in line with thinking going back to the seventeenth century, drawing a clear line between religion and the secular state. The state by necessity must remain neutral with regard to religious affairs, it cannot privilege one religion over another (Locke 1689). That way the citizens’ right to hold their own religious beliefs is protected. If the state decided to privilege one religious viewpoint over another, inevitably unjust discrimination of the not‐privileged religious point of view would follow. This view is supported by many judgments passed by the highest courts in various countries. For instance, a Canadian Supreme Court judgment notes, ‘the State is in no position to be, nor should it become, the arbiter of religious dogma’ (Syndicat Northcrest v. Amselem 2004).That makes perfect sense; how could judges possibly adjudicate conflicting views between religious dicta or even within a religion? They are not trained to do so. Accordingly, secular societies remain neutral vis a vis religious points of view, and public discourse relies on public reason based arguments. We will do the same in this book.
1.18 Let us turn now to the complex relationship between the law and ethics.
1.2 Law and Ethics
1.19 Although medical lawyers work on bioethical issues, this is not a book about law. Nevertheless it is important briefly to consider the relationship between law and ethics and also the difference between legal and moral rights. Bioethics is a field in which reference is frequently made to ground‐breaking legal cases (e.g. Roe v Wade in the United States), and to relevant legislation such as the Mental Health Act in the United Kingdom. To say of a proposed action ‘That would be unlawful’ is, however, not a knock‐down argument against it.
1.20 Although you might hope that the law is always ethical and/or just, reality quickly proves otherwise. The Nazis had laws discriminating unjustly against a whole range of German citizens at the time. Just think of their 1933 Law for the prevention of Hereditary Diseased Offspring. The Nazis used this law to justify the forcible sterilization of tens of thousands of Germans, even of many who did not suffer from hereditary conditions (Proctor 1988, Chapter 4). Apartheid South Africa had racist laws in place that one would hope will never reoccur on this planet. And before we get too optimistic about the state of laws in democratic societies, the Nazi sterilization laws were at the time widely applauded by eugenicists with direct lines to governments in many democratic countries. In fact, it turned out to be difficult to prosecute certain crimes committed against vulnerable people as war crimes, because similar laws were at the time in effect, for instance in the USA (Proctor 1988, 117).
1.21 In the light of these observations, several questions arise: (1) what exactly is the difference between ethics and law? (2) Should the law enforce morality? (3) How should individuals, especially health professionals, behave when confronted with a law they believe to be unjust?
1 You may see that ethics and law have certain similarities: they are both social devices to make it possible for people to live together in relative harmony and for society to function. They both offer mechanisms for dealing with areas of life where interests conflict. Of course, the sanctions that the law has are much more far‐reaching than those of ethics, including criminal and civil proceedings, punishments and penalties. The sanctions that ethics has, however, are not negligible. While ethics relies on the power of arguments as far as its action guidance and justification are concerned (as opposed to legislation and precedent in the case of law), the power of persuasion can be considerable. Some have suggested that if there is a strong ethical consensus on a particular matter, say that slavery is bad, what likely would enforce this consensus – if there were no law prohibiting slavery – is societal pressure such as peer pressure. Societal disapprobation can be a very powerful instrument in the absence of legally enshrined norms in a particular matter. Arguably these societal norms can be a force for good as well as a force for bad depending on the circumstances – for example disapproval of voluntary childlessness as ‘selfish’ may make it difficult for people to choose that. You will surely be able to think of other possibilities.In addition to sanctions, law and ethics differ in scope. Here is what the American Medical Association has to say on the subject of the difficult relationship between law and ethics: ‘Ethical values and legal principles are usually closely related, but ethical obligations typically exceed legal duties.’ Although there is clearly some overlap where we regard actions as both morally wrong and rightly prohibited by law, such as violence against the person and theft, morality covers a much wider area of our relationships with each other, with other species, and indeed our responsibilities for our own health. There is a question about how far the law should extend into policing the moral sphere. Think of examples such as drug use, sexuality, and smoking.
2 Should the law, then, be designed to enforce morality? A lot of ink has been spilled in response to this question. The American Medical Association probably got it right: in a good society ethical values and the law should be reasonably closely aligned. There is a potential ambiguity here, however. Some people might think it important that the law is attuned to the social values prevailing at the time (which may be discriminatory as in the examples above), rather than to what can be justified by ethical argument. It is the latter that is relevant in the context of the present discussion. It is important to note, however, that the law can play an important role in changing attitudes. Outlawing discrimination, for example, as well as arguing against it from an ethical point of view, can have an influence in changing attitudes in the longer term. So legalizing marriage equality may play a part in decreasing anti‐gay sentiments, for example.Is there a criterion to aid us in deciding where the law should not intervene? A liberal legal philosopher, Joel Feinberg, argued some time ago that what he describes as ‘harmless immoralities’ should not be outlawed (Feinberg 1990). What are harmless immoralities? Basically they are immoralities that affect only the person who, being fully informed and cognizant of the relevant information, voluntarily engages in immoral conduct. This begs the question, of course, whether there can even be such a thing as a ‘harmless immorality’. It is worth noting perhaps that there are some kinds of ethical theories, going broadly under the term ‘consequentialist theories’ that deny that there is such a thing as a ‘harmless immorality’. To their mind only harmful conduct can sensibly constitute something immoral. Calling something a ‘harmless immorality’, on that account, would at best be considered a contradiction in terms.
3 It is always an open question whether the law has got it right on a given issue. This can put people in a difficult situation when they are confronted by a situation where they think the law is wrong. Think of examples of this, such as a doctor who thinks it would be right to prescribe a prohibited substance to bring relief to a patient, or to perform