TY - CHAP

T1 - Voices carry?

T2 - the voice of bioethics in the courtroom and voice of law in bioethics

AU - Ost, Suzanne

AU - Huxtable, Richard

PY - 2015/5/8

Y1 - 2015/5/8

N2 - This paper explores the interaction between bioethics and law in the theatre of the courtroom, with particular reference to English law. No matter what some judges say, the courtroom has long been a location in which law and bioethics interact, not least in seminal health care law cases such as Re A (Minors) (Conjoined Twins: Separation [2000] and R v Arthur [1981]. Judge-made law has made some positive contributions to the shaping of bioethics as a discipline, providing a real-world testing ground for moral arguments, issuing the judicial ‘products’ with which bioethics engages, and emphasising the importance of observing due process. At the same time, the courtroom is an adversarial arena, not always ideally suited to the resolution of ethical conflict, and its concern with actions that satisfy attainable standards can fall short of the aspirations set in philosophical ethics. Indeed, sometimes the judges misinterpret or wholly neglect the ethical dimensions of the case at hand. So much of what judges do involves orchestrated framing, the manipulation of legal concepts, interpretation (of the facts of the case, the story of legal precedent and of the particular ethical dilemma) and translation (of ethical issues into law's discourse). Whether they like it or not, the judges are interpreting and responding to the voice of bioethics alongside the voice of the law in their attempts to reach the 'right' judgment and in the face of the theatre surrounding cases involving bioethical controversy. The end result may be distorting because bioethical theory is misinterpreted or the voice of bioethics becomes obscured because of the drama of the case. But this is not to claim that bioethics has some access to the ‘right’ or ‘true’ response to the case at hand. Indeed, neither bioethics nor law can necessarily claim superiority or access to the ‘truth’ of the matter. We nevertheless argue that each will be likely to gain greater insight by opening a dialogue with the other, telling and re-telling the story, so that the voices of one forum can carry over into the other.

AB - This paper explores the interaction between bioethics and law in the theatre of the courtroom, with particular reference to English law. No matter what some judges say, the courtroom has long been a location in which law and bioethics interact, not least in seminal health care law cases such as Re A (Minors) (Conjoined Twins: Separation [2000] and R v Arthur [1981]. Judge-made law has made some positive contributions to the shaping of bioethics as a discipline, providing a real-world testing ground for moral arguments, issuing the judicial ‘products’ with which bioethics engages, and emphasising the importance of observing due process. At the same time, the courtroom is an adversarial arena, not always ideally suited to the resolution of ethical conflict, and its concern with actions that satisfy attainable standards can fall short of the aspirations set in philosophical ethics. Indeed, sometimes the judges misinterpret or wholly neglect the ethical dimensions of the case at hand. So much of what judges do involves orchestrated framing, the manipulation of legal concepts, interpretation (of the facts of the case, the story of legal precedent and of the particular ethical dilemma) and translation (of ethical issues into law's discourse). Whether they like it or not, the judges are interpreting and responding to the voice of bioethics alongside the voice of the law in their attempts to reach the 'right' judgment and in the face of the theatre surrounding cases involving bioethical controversy. The end result may be distorting because bioethical theory is misinterpreted or the voice of bioethics becomes obscured because of the drama of the case. But this is not to claim that bioethics has some access to the ‘right’ or ‘true’ response to the case at hand. Indeed, neither bioethics nor law can necessarily claim superiority or access to the ‘truth’ of the matter. We nevertheless argue that each will be likely to gain greater insight by opening a dialogue with the other, telling and re-telling the story, so that the voices of one forum can carry over into the other.

KW - bioethics

KW - medical law

KW - health care law

M3 - Chapter

SN - 9780415737197

T3 - Biomedical Law and Ethics Library

SP - 73

EP - 86

BT - The voices and rooms of European bioethics

A2 - Huxtable, Richard

A2 - Meulen, Ruud ter

PB - Routledge

ER -