Shifting Paradigms in Bioethics and Health Law: The Rise of a New Pragmatism

Abstract

Neither bioethics nor health law is old as an established discipline. Modern bioethics dates from the late 1960s or early 1970s. Health law as a domain characterized by its own casebooks, courses, and specialists arguably began somewhat earlier. While each has far older precursors, the two fields have seen a modern resurgence in the last thirty years or so. Yet each in these three decades has been dominated by a certain method or paradigm. In bioethics that has come to be known as “principlism, ” deductive reasoning from a limited set of middle-level ethical principles, albeit with some reciprocal attention to the implications of the case at hand for those principles. No comparable term has emerged in health law, and the field has arguably been less enamored of philosophical abstraction. But the pattern has often been similar: the creation of middle-level rules (on informed consent, surrogate decision-making, advance directives and so on) and then their downward application with insufficient attention to the clinical context, the specific characteristics of the disputants (such as insurance status, race or ethnicity, and gender), and whether the rules will actually work in medical settings.