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Distinguishing Law and Ethics: A Challenge for the Modern Practitioner

Distinguishing Law and Ethics: A Challenge for the Modern Practitioner

Discussions of psychiatric ethics often devolve into discussions of applicable law. Although ethics is often operationalized by a society's laws, ethics differs dramatically in its foundations, framework and purpose. The distinctions between ethics and law become increasingly important as more and more practitioners encounter the legal system, whether by committing patients, advising guardianship, or participating in other administrative or criminal proceedings. Many practitioners struggle to present material governed by medical ethics to a forum governed by an almost alien paradigm--an ethic of arcane precedents and procedures. Consequently, distinguishing what is legal from what is ethical is not merely an academic exercise but a practical one as well.

Broadly speaking, ethics concerns itself with why and how one ought to act. It is derived from expansive theories of right and wrong. In the most dominant current view, theories give rise to principles that, in turn, give rise to rules of conduct. In Western thought, the earliest philosophers (e.g., the pre-Socratics) developed certain rules of thought, provoked disagreements and gave birth to opposing rules. Constant modifications rooted in multiple cultures addressed the positive obligations of one person to another and set ideals to be met by both commoner and king. This evolution resulted in a body of work rich in influences and models of thought.

Law, particularly American law, may be viewed as more derivative and more structured than its ethical counterpart. American law, derived as it is from codes of English common law, concerns itself primarily with the rules that stabilize social institutions. It is less concerned with promoting social ideals. This is not merely a function of the law's dependence on precedent and the principle of stare decisis (Latin for "let the decision stand"). It is a function of deciding when to act--when to bring the full force of social sanction to bear on individual citizens and their specific acts.

This distinction is often characterized as the difference between moral rules and moral ideals. Legal theorists write frequently on the need to distinguish between a broken rule and an unattained ideal. Most argue that exemplary, supererogatory or otherwise morally extraordinary behaviors should not be enforced by law. Charitable acts and rescues fall into this category, as might manners and dress codes. Law is generally reserved for those rules critical to the maintenance of the social fabric, including safety, contracts and broad conceptualizations of the common good.

Legal scholar H.L.A. Hart (1961) expressed this distinction in a manner well known to the legal tradition . By balancing burdens and benefits to society, he described a limit to the amount of law enforcement society can afford. In this view, the burden on the community may be too great to enforce every moral wrong: there may be great difficulties of proof, overburdening of the courts or hampering of particular social institutions (e.g., commerce).

Hart went further, however, in identifying two particular areas many recognize intuitively as distinctions between law and ethics. The first is described as immunity from deliberate change, a property of ethics but not of law. Law, for example, can be altered by the deliberate act of a legislature and applied at a specific time. This is hardly the case for ethics, which awaits changes in sensibilities, mores and community values.

The Patient Self-Determination Act (PSDA), for example, was passed in 1990 and came into action on a set date in early 1991. However, the moral pressure toward identification of proxy decision-makers (which the PSDA made a legal requirement) had been gaining momentum for some time. It represented more a movement than an event. Patients and physicians had been working to change the moral landscape for a generation before the law changed matters with the stroke of a pen.

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