In Greek mythology Themis was the Titanness of Justice and Good Order. She had many daughters, including the goddesses Dike (Justice) and Eunomia (Good Laws). These anthropomorphic representations show us how the Greeks understood ethics and law as being part of a unified system of norms. The early common law tradition shared many of these ideas, seeing the common law and the constitutional settlements of the 18th century as the part of a unified great chain of being. In these classical and medieval systems, law and ethics were interdependent and law had to maintain an ethical core to both maintain its legitimacy. Law’s primary task was to bring forth excellent behaviours in citizens that enhanced human flourishing.
In this talk I will argue that the law in modern, post-industrial societies like Australia, is no longer tasked with producing ethical and virtuous citizens. Rather, modern law is best understood teleologically as a mechanism for the implementation of particular goals, generated via our political systems. In this mechanistic view, law’s ability generate norms has become limited to commands over what is forbidden, what is required and who is given powers to make certain decisions. Because modern law is limited to these functions, it is much less able to provide guidance on what is best, good and excellent and such decisions are left to those who work in or for bureaucracies (most often state actors but not always). I will argue that law suffers from the problem of being ethically naïve, and this is not only a consequence of legal positivism but a requirement of it. I will examine what this means for the relationship between bioethics and health law and how it might impact on the design of laws and the governance of bioscience in the future.