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Abstract

There is a long history to the debate on the relationship between law and morality. To date, there is no clear consensus over basic questions like the extent that the substantive content of ‘law’ needs to be consistent with the moral requirements for it to be properly law. Whether there is a relationship at all depends very much on what one takes to be ‘law’ and how ‘morality’ should be understood. While it may not be a rewarding exercise to presently rehearse a debate that is well documented in the literature, fresh insights may nevertheless be gained through a more explicitly contextual evaluation. The debate may then be framed in the following manner: ‘What is the relationship (if any) between law and morality in bioethics?’ By this question, bioethics is used contextually to refer to a system of interrelated knowledge and practices that apply to the governance of biomedical research and medicine, as well as policies on these ﬁelds. It is argued that law and morality enjoys a ﬁrm and intricate relationship in bioethics, and they are mutually constitutive. Drawing on Anglo-American jurisprudence, ‘mental capacity’ in relation to mentally disabled or mentally ill persons is discussed as illustration of a phenomenon that is co-produced by law and morality.

Introduction

This entry begins by considering key arguments that developed over time and the conceptual contestation over the meanings of ‘law’ and ‘morality’ in the main jurisprudential schools of thought. In Sub-part (A) of Part II, the central claim in legal positivism that there is at best a contingent relationship between law and morality is evaluated. Even in this school of thought, law is recognized to be an essentially normative enterprise with a minimum moral content. For this reason, a governmental ﬁat need not necessarily be recognized as law. By contrast, traditions in natural law hold ﬁrmly to the view that the content of law should be supported by moral reasons in order for it to have the authority of law in a proper sense. As a minimal requirement, the intrinsic qualities of law must be satisﬁed in order for it to have any authority at all. An overview of the main natural law traditions are discussed in Sub-part (B) of Part II. A richer account of the intrinsic qualities of law may be gained by embedding the evaluation in the context of a democratic society. As discussed in Sub-part (C) of Part II, the rights and responsibilities in such a society arising from these intrinsic legal qualities broadly constitute the public morality of that society. In many aspects of social engagements, and particularly in bioethics, public morality is arguably best understood as an internal coupling of morality and the legal system. The phenomenon of public morality and its relevance to bioethics are considered in Sections III and IV respectively. In the penultimate section, the mutually constitutive and co-productive relationship of law and morality within a bioethical setting is illustrated with regards to the provision of healthcare to mentally disabled or mentally ill persons. In Anglo-American jurisdictions, the duty to respect the autonomy of these persons is entrenched in law. However, actual situations are complicated by the possibility that an unreﬂective action would not only conﬂict with a healthcare professional’s duty to protect such persons from harm, but could also be inconsistent with the spirit of the law. In this setting, it is argued that the comingling of legal and ethical considerations entailed in determining the mental capacity of a person to decide on suggested treatments is illustrative of the mutually constitutive and co-productive relationship between law and morality.

History Of The Debate And Conceptual Contestation

Legal Positivism

In legal positivism, the phenomenon of ‘law’ is essentially taken to mean a set of social facts or standards that are recognized by members of a society (and its ofﬁcials in particular) to be authoritative and are generally observed. In this sense, ‘law’ is to be understood primarily in terms of the structures of governance in a society and the standards posited by these structures, whether by order, as social convention or through customary or traditional belief or practice. The nature or quality of these structures has no direct relation to the question of whether “law” exists. For this reason, morality is at best entirely contingent to the substantive content of law, as the latter need not necessarily be consistent with the former.

Writing in the time of the Georgian and Victorian eras of British history, John Austin and Jeremy Bentham describe law as a system of orders issued by a sovereign, backed by threats of punishment. By this approach, morality has no constitutive role in the substantive content of law, as the sovereign need not issue orders on moral grounds or even be concerned with moral justiﬁcations for the orders made. In addition, the sovereign is not bound by these orders, but would expect others to habitually observe them through coercion of some kind.

A richer account of legal positivism was advanced by Herbert Hart some years after the Second World War. Drawing on English analytical positivism, he criticized the account of his predecessors as reductivist, for failing to provide an adequate analysis of the distinctive structure of a legal system, as well as for being monistic, in representing all laws as having a single form of order backed by threat. Hart (1961) observed that laws are not strictly dependent on the sovereign as they continue to apply even when that sovereign no longer rules and its authority could persist for some time. Disavowing this and other imperatival accounts, Hart argues that the law should be understood as an essentially normative enterprise that is constituted by a set of social rules which are observed by enough people in a society, and especially its ofﬁcials. In other words, law relates to norms rather than orders backed by threats, and its existence and content are made apparent in social facts that are generally recognized to be the social functions of law (such as to discourage socially undesirable behaviour) and to enable socially constructive engagement among members of the society.

Under Hart’s genetic-analytic method of analysis, law exists as legal systems that comprise a union of primary and secondary rules. Primary rules set out rules of conduct or behaviour, and are thereby rules of permission and obligation. Secondary rules relate to the rules themselves and are concerned with their creation, administration, alteration and adjudication. The most important of these is the rule of recognition, which is a master rule that speciﬁes the properties that all laws must possess in order for them to be legitimate rules of the system. This master rule is a norm, whose existence is evidenced (as a social fact) by a regularity in behaviour of a special social subgroup comprising ofﬁcials of the legal system, including lawmakers, judges, lawyers, law enforcement agents, and the like. The capability of laws in exacting compliance is largely attributable to the view of these ofﬁcials that all members of the society are expected to behave in accordance with these regularities.

Hans Kelsen (1967), a contemporary of Hart, similarly rejects an imperatival analysis of law. Rather than simply a consequence of threats and sanctions, observance of legal obligations has a normative basis. Norms create legal obligations, and they are the rationale for threats and sanctions imposed, rather than the other way around. Unlike Hart however, Kelsen’s account of law is a completely normative one, so that by his pure ‘normative science’ approach, no reference should be made to social facts as they are extra-legal phenomena. For Kelsen, law can be traced to a basic form, which is in essence a conditional order that is directed at ofﬁcials to ensure that its requirements are observed. The law can also be traced through a chain of authority to a basic norm (or grundnorm). For instance, the authority of a regulatory requirement is derived from a statutory provision, which draws upon the powers of the legislature conferred to it by the constitution. Constitutional authority can itself be traced to the original version, which would have been validated by the basic norm. The basic norm is neither a legal norm nor a social fact, and it need not be moral or morally defensible. For this reason, while Kelsen’s methodology may be described as neoKantian, it remains a positivist account of law (Green 2009).

The analyses of Hart and Kelsen are more consistent with the representative democracies of today, where lawmakers are not themselves above the law in a way that Bentham and Austin have considered a sovereign to be. But to the extent that the jurisprudential doctrines of Hart and Kelsen require laws to be prospective, clear, non-contradictory, and relatively stable, these features seem to point to substantive moral contributions. Hart has however maintained his stance that law and morality remains by-and-large separate. He explains that while ofﬁcials of a legal system may consider compliance with rules to be morally required, they may also be motivated exclusively by other non-moral reasons, such as pure selfinterest. Hence compliance with a set of social rules does not provide assurance that the resulting action or behaviour is consistent with substantive morality. An action may well be lawful but yet unjust or immoral, or effected in plain indifference to its basis in morality.

Natural Law

Under the natural law traditions, some kind of relationship is generally taken to exist between law and morality. Most fundamentally, the validity of laws is considered to be dependent to varying degrees on moral principles and arguments. One of the main traditions of natural law is based on the religious writings of Saint Thomas Aquinas (Brody 2004). By this (Thomist) tradition, law operates in four main domains: at the level of an eternal universe (eternal law, which is considered to encompass scientiﬁc laws), for achieving eternal salvation (divine law), from the rational nature of human beings and particularly in the ability to distinguish between good and evil (natural law), and for governing human affairs (human law). Among these, only human laws are promulgated by human beings. According to Aquinas, human laws are valid only if they do not contradict natural law, i.e., that they are an implement of reason and directed at the common good. His position is well summed up in the famous expression that ‘lex iniusta non est lex’ (or unjust law is not law). William Blackstone in An analysis of the laws of England reads this postulation literally, in effectively requiring valid law to be co-eval with morality. Under the Thomist tradition, morality relates to the norms and precepts prescribed by divine law and natural law, as well as human laws to the extent that they are consistent with natural and divine laws.

With the rise of the secularism from around the sixteenth century, morality became construed in terms of natural rights, or the rights that all human beings intrinsically possess independently of the sovereign or state. Representative works in this tradition include those of Hugo Grotius, Thomas Hobbes, John Locke and Jean-Jacques Rousseau. These scholars argue that natural rights arise from the natural needs of every human being for protection from physical harm, material resources to live, and freedom to pursue life goals. On this basis, law is only legitimate and authoritative if it protects natural rights, and enables human beings to prosper in cooperative social groups. This secular natural law tradition has been given important political expression in the Universal Declaration of Human Rights of the United Nations, as well as in the constitutions of many countries around the world.

The works of more recent natural law scholars have argued for an interpretation of morality that gives emphasis to law as an essentially purposive and socially-embedded enterprise. By this approach, certain fundamental moral requirements must be observed, even if morality does not impose any substantive constraints on the content of law. In a contemporary restatement of classical natural law, John Finnis presents natural law as primarily concerned with the moral justiﬁcations for use of the coercive powers of law, even where an unjust law is legally valid on its face. In the main, Finnis argues that the potency of law will be limited unless it is guided by moral principles and rules (1980, p. 290). These moral principles and rules are derived through practical reason from universal basic values or goods that are worthwhile to pursue independently of any urge. These seven basic values are presented by Finnis as: (1) life, (2) knowledge, (3) play, (4) aesthetic experience, (5) sociability (or friendship), (6) religion (broadly deﬁned), and (7) practicable reasonableness. For Finnis, these values are basic and universal because they are self-evidently good, cannot be reduced to being part of or instrumental to the pursuit of other values (such as pleasure), and each value is the most important in and of itself.

As a purposive social institution, law must facilitate the common good by enabling the pursuit of these basic goods and resolve any coordination problems that may arise (1980, p. 276). Having regard of the common good when determining commitments and actions is also a requirement of practical reasonableness as a basic value. As the ultimate moral test in Finnis’ analytic, the common good is not consequentialist in leading to an outcome that achieves the greatest good for the greatest number when all things are considered. Instead, it is deﬁned by the principle of subsidiarity, which requires the needs of all individuals that constitute a community to be served by the community so formed. In other words, the common good must be determined based on the purposes for which the community exists. It follows that the authority of law must be premised on its furthering of the common good of its community, and the pursuit of basic goods of every member of that community. As Finnis observes: “Human persons are not law’s creatures but its proper [focal] point” (2014, section 2; emphasis added). Finnis’ reformulation of the Thomist postulation may thus be stated in the following manner: An unjust law may still be technically binding, but it is not law in the fullest sense that it could have been if moral reasons that are necessary to justify the exercise of legal authority are provided.

Writing in the aftermath of the Second World War, Lon Fuller highlights the limitations of a static construction (in legal positivism) of law only in terms of its formal or functional features. Social life cannot be meaningfully achieved or enriched simply through the imposition of the will of a sovereign. As an ongoing enterprise, law is also aspirational in striving towards the purpose for which it subsists. Fuller identiﬁes the facilitation of social life through communication, coordination and understanding as the fundamental purpose of law (1969, pp. 185–186). To regard law as nothing more than a ‘one-way projection of power’ is consequently a failure to recognise that law has a meaningful content. Fuller distinguishes the content of law by its substantive provisions, which he regards as the external morality of law, and its intrinsic qualities, or its ‘internal morality.’

The ‘internal morality’ of law arises from the assumption that human beings are responsible agents, and generally consistent with the principle of respect for persons. It is primarily underscored by eight virtues: generality, publicity, prospectively, clarity, consistency, possibility of compliance, constancy and faithful administration of law. Some of these virtues have also been emphasized by legal positivists as features that an effective legal system should have, although Fuller explains that effectiveness does not negate the moral desirability of these virtues. At a system-level, these virtues are practised or implemented to different degrees. For instance, one could always argue that a rule has not been adequately publicized or is not sufﬁciently comprehensible. If so, that legal system will fall short of the virtues of publicity or clarity, although this would not in and of itself imply that the system of law is immoral or ‘bad.’ So long as the legal system sets out and gives effect to fundamental and essential moral duties that are necessary to support meaningful social life, it is still a valid system even if it does not meet the standard that it aspires towards. Fuller deﬁnes this minimum moral content of law to be the morality of duty. A law that falls below this moral standard is arbitrary and not law in a sense that is meaningful. However, a law will still be valid as law if it does not meet moral standards that are aspiration, or what Fuller regards as morality of aspiration. As a purposive enterprise, the internal morality of law (comprising both duty and aspiration) is a procedural morality that must be observed if the rule of law is to exist. Interpreting Fuller in the Thomist postulation, an unjust law may be formally valid, provided that procedural morality (or the ‘internal morality of law’) is observed if the law is to have any moral or binding authority at all.

Public Morality

Ronald Dworkin considers that most if not all of the virtues encompassed in Fuller’s internal morality of law may be summed up in the quality of integrity of law. In the socio-political context of Anglo-American legal systems, integrity relates to the internal consistency of the system of rules and principles in past decisions of the courts and other political institutions. These rules and principles form the public morality of a community of people, and from which the rights and responsibilities of its members are derived. These rights and responsibilities constitute the phenomenon of law, not only in the understanding among citizens but also in the behaviour of legislators and judges in particular. Crucially, the quality of integrity requires ﬁdelity to public morality in all activities relating to the creation, administration and adjudication of law. Where adjudication is concerned, Dworkin has famously argued for the judge’s role to be like that of a chain novelist, so that a level of coherence is maintained in a current decision with those of the past. Given that past decisions need not necessarily reﬂect popular morality, public morality with which the law is aligned may differ accordingly (Dworkin 1998, p. 97).

A principled rather than populist sense of public morality is implicit in Jurgen Habermas’s principle of democracy, which he argues establishes not only a procedure for legitimate decision-making, but also steers the production of the legal medium itself. Whereas morality encompasses internally constituted argumentations that are both necessary and sufﬁcient, the democratic principle is chieﬂy concerned with creating a system of rights and a language that enables a community of people to understand themselves as a voluntary association of free and equal consociates under law. In other words, legal norms (as public morality) have an artiﬁcial character in constructing actors within an abstract community and regulating the external relations among them. Hence a legal individual is essentially a question of the capacity of a natural person to occupy the position of a typical member of that legally constituted community, rather than the personal identity that this person has developed over a lifetime. Up to this point, Habermas has applied an essentially Kantian characterization of legal abstraction in legality or juridical form. Unlike Kant however, Habermas does not consider legality as limitations

of morality. He instead suggests that there is a complementary relation between law and morality, particularly from a sociological standpoint, as the constitution of legal form is necessary to offset the weaknesses of morality in postmodernity. With modernisation and the collapse of traditional ethical life, morality that is detached from habit and customary law becomes sublimated into a cultural system and exists primarily as knowledge. Unless a principled morality is internalized, through socialization for instance, it is inoperative and ineffective. In contrast, law is simultaneously a system of knowledge and a system of action. Because values-orientations are interwoven with a system of actions, law is immediately effective. It follows that a legal subject is unburdened by cognitive, motivational and organizational demands in the same ways that the person as a moral subject will be. Within a medical setting, there is some basis for this argument where difﬁcult decisions will have to be made in relation to non-routine situations rendered complex by technical and cognitive uncertainties. Decision making will require the selection, interpretation and application of the norm that is most appropriate to an as complete a description of the situation as can be produced. As Habermas observes, “problems of justiﬁcation and application in complex issues often overtax the individual’s analytical capacity” (Habermas 1998, p. 115). Even after a decision is made, the decision-maker must have the strength of will to act in accordance with his or her moral convictions, and in a manner that meets reasonable expectations.

Law as a system of action suffers less from these problems. Decidability is in a sense assured through the ability of the legislature and the judiciary to determine which norms should count as law. As a system of action and coercive powers, law overcomes the weakness of will and reasonable expectability is secured through the requirement of general obedience to law. Moral principles are in and of themselves likely to ﬁnd limited and inconsistent expression if it relies only on individual conscience and socialisation. When internally coupled with a legal system however, it is not difﬁcult to see that they will affect all spheres of action.

Ethical (Or Moral) Dimension Of Law In Bioethics

In American bioethics, this allegorical explanation provided by Alex Capron (2004, p. 1369) vividly illustrates the internal coupling of morality with the legal system in the United States: “Bioethics began as, and remains, an interdisciplinary ﬁeld. If developments in biology and medicine have fuelled the bioethics train and philosophy has laid down the tracks on which it has run, then law has been the engineer at the controls of the locomotive and statutes and court decisions have thrown the switches that guided the train through the rail yards.” He proceeds to identify speciﬁc ways in which law had impacted bioethics. These include reinforcing case-based traditions through the use of fact-based inductive method as a counterpoint to the relatively more philosophically oriented analysis in ‘principlism’; emphasis on procedure, particularly where consensus cannot be achieve over substantive moral values in a pluralistic society; increase in rights orientation given the law’s inclination to view relationships in terms of rights; and importation of values that the law gives emphasis to, such as “justice, as opposed to progress or efﬁciency; equality, as opposed to inherent differences or measures of quality; due process, as opposed to scientiﬁc proof; and individual self-determination over one’s life and body, as opposed to beneﬁcence, psychological interdependence, or communal welfare” (Capron 2004, p. 1373).

Courts in many (and especially common law) jurisdictions have had an active role in deciding on moral issues. Those relating to end-of-life where concerns include euthanasia and assisted suicide have posed serious questions on societal values. There is no clear answer to the desirability of this development, as no agreement has been reached as to whether a legal system should enforce particular moral values, even if they are adhered to by most members of that system. Famously, John Stuart Mill has argued against the legal enforcement (through coercion) of moral values unless this was necessary to prevent harm or more generally for the protection of vulnerable populations in society, such as children and individuals who are mentally incapacitated. On this rationale, Mill would challenge the legitimacy of laws that prohibit immoral conducts. In contrast, others have argued that laws should be used to promote and encourage virtue while discouraging vice. Patrick Devlin in particular called for the deployment of law to strengthen the moral code of a community, to the extent that it does not transgress on human rights. In reality, the interactions between law and morality on bioethical concerns have been far more complex – partly because morality should not be unduly simpliﬁed. Morality in the sense that it is understood in bioethics as justiﬁcation of moral views has clearly been impactful on the legislature and the judiciary. As Wibren van der Burg (2009) explains, whether a moral rule or principle is incorporated into law depends on a number of considerations, such as the intended effects and expected side-effects, prevalent norms (e.g., spheres of private morality that resists juridiﬁcation), and the integrity and internal morality of law. As has been considered above, legal tradition and values affects the weight of considerations as to whether certain moral standards should be legally enforced. Where bioethical issues are also societal concerns, public morality cannot be ignored, particularly for its emphasis on respect for diversity of views in a democratic and pluralistic society, as well as respect for life and for persons.

In bioethics, a clear separation between law and morality is theoretically possible but does not correspond well with reality. As a contested space, it has been observed that the value and belief questions with which the ﬁeld has been preoccupied reﬂect the larger normative – both moral and legal – struggles of society (Fox and Swazey 2008). As a critical and reﬂective enterprise, bioethics is just as concerned with codes and guidelines, as it is with deeper understanding of the issues entailed (Kuhse and Singer 2009). In the ethical practice of medicine or biomedical research, moral questions about the value of life is an intricate part of the legal principle of respecting the protection of life from harm. Emphasis on the distinctiveness of law and morality is hence not an especially instructive endeavour in bioethics. From a moral standpoint, the direction and control of medicine and biomedical sciences are not exclusively deﬁned by morality. From a legal standpoint, even the legal positivism of Hart and his followers is grounded in some account of political system, which must adhere to its public morality. The reality for many political systems of today is that rules are often regarded as morally justiﬁed by those who create and administer them. Within a health system in particular, the substantive content of health law is often heavily inﬂuenced by, if not rooted in, moral beliefs and considerations of the ofﬁcials of the system. It is difﬁcult to think of a situation where moral arguments do not play a constitutive role in determining the content of health law. It is sufﬁcient that ofﬁcials have true (even if misguided) moral beliefs and that these beliefs have contributed to the regularity of their behaviour. If this is correct, then the distinction between what the law is and what it morally ought to be cannot be clearly distinguished (Smith 1999).

An Illustration Of Mutual Constitution And Co-Production

Mr X, single with no next of kin in his residential locale, was admitted to the hospital for symptomatic presentation of breathlessness, due to lung cancer. This was diagnosed 3 years ago. Repeated admissions have given rise to a pattern of selfdischarge against medical advice or abscondment with improvement of symptoms. During the last admission, his sixth within the span of 3 years, the oncologist was keen to start a course of palliative treatment which involved radiation. Two psychiatrists on two separate occasions assessed him as lacking in mental capacity to decide on treatment. He lacked insight into his illness and failed to convey understanding, retention and recall of information given to him. However, he requested for a discharge from the hospital, which was acquiesced to by the treating team.

In many countries, there are legislative or regulatory provisions concerning the treatment and care of patients without decision-making capacity. The key goal of these provisions is to better secure patient autonomy by allowing a person with decision-making capacity to appoint a surrogate decision-maker or to make decisions on this person’s behalf based as closely as possible on her or his values, preferences : and beliefs when she or he should lose this capacity (and where no surrogate decision-maker has been appointed). In a number of common law countries, such as Australia, Singapore and the United Kingdom, mental capacity is determined based on the ability of the patient to decide on a speciﬁc matter at a particular point in time. In other words, it does not relate to the general decision-making ability of the patient. Instead, mental capacity to make a speciﬁc decision must be assessed at the time the decision has to be made, given that mental incapacity may be permanent (or long-term), temporary or ﬂuctuating.

In these jurisdictions, a patient is ‘unable to make a decision’ when one or more of the following cannot be done at the time when a decision has to be made:

Understand the information that is relevant to the decision, including the nature of the decision and the reasons that it needs to be made, available options and consequence of either making a decision or not;
Remember the information long enough in order to make the decision;
Weigh up the information and apply it to decision-making; and
Communicate the decision, whether verbally or through some other means.

Assessment of mental capacity may be made informally for most day-to-day matters. For more important decisions (such as selling the patient’s home), a formal assessment by an accredited medical practitioner may be necessary. Where acts of care or treatment (i.e., diagnosis and other procedures) are entailed, reasonable steps should be taken to determine if the patient lacks capacity to make the speciﬁc decision needed, and any act that is done should be on reasonable belief that the patient lacks capacity and that such action is in the patient’s best interests (discussed below). Where restraint is to be used, reasonable steps must similarly be taken to determine if the patient lacks decision-making capacity. In addition, there should be reasonable belief that the patient lacks capacity and that the act of restraint to be implemented is necessary to prevent harm to the patient. Such restraining act should also be a proportionate response to the likelihood and seriousness of harm. Although ‘harm’ is not deﬁned in the legislation, use of restraint is inappropriate if it is done only to ease the provision of care or treatment.

It is a general ethical requirement that any decision made on behalf of a mentally incapacitated patient satisﬁes the ‘best interests’ requirement, especially where it relates to life-sustaining treatment or treatment to prevent serious deterioration in the condition of the patient. In a number of countries, this is also a legal requirement. Obviously, any decision made must not be motivated by a desire to bring about the death of the patient, unless under legally sanctioned conditions. In essence, ‘best interests’ assessment is also a matter of ethical evaluation that encompasses a range of considerations including the patient’s past and present wishes and feelings, especially if they are written down when the patient had capacity, and the beliefs and values that are likely to affect the patient’s decision if she or he had capacity. If this determination cannot be made due to unresolved (typically familial) conﬂict over what ‘best interests’ are, an application may be made to the Court.

Returning to consider the case of Mr X, it may seem at ﬁrst blush that treatment should have been imposed as he did not have decision-making capacity. But even in this condition, any decision made on his behalf must be in his best interests. Enrolling Mr X into a course of palliative treatment will serve a moral interest. However, his past and present wishes and feelings consistently points to a refusal of treatment. Imposing treatment on Mr X will also require coercion and possibly restraint, which is morally and ethically difﬁcult to justify. In addition, such a course will negate any putative beneﬁt. It should also be instructive to note that the law does not mandate treatment but is mainly conﬁned to the making of the treatment lawful.

Conclusion

Legal rules and principles shape understanding of moral or ethical norms, just as the former is

subject to criticisms and justiﬁcations in the latter. This relationship has been described as an ‘overlap,’ although one’s perception may also be shaped by whether the phenomena of law and morality are considered in terms of its substantive dimension (i.e., in terms of norms, principles and guidelines), or as a practice (Van der Burg 2009). It is argued that the interplay between law and morality, particularly on issues of bioethics, is mutually constitutive and co-productive. As illustration, it has been considered how ethical and legal principles co-produce an understanding of mental capacity, and more broadly, the ways in which the welfare of mentally incapacitated patients are to be protected as autonomous individuals. While it may be anticipated that the extent to which law and morality interacts will vary overtime, it is difﬁcult to envisage a situation in bioethics where a divergence will lead to a complete and irrevocable separation of law from morality.

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