Populations, Public Health, and the Law

2. Public Health and American Law

C H A P T E R 2 Public Health and American Law For the rational study of the law the black-letter man may be the man of the present, but the man of the future is the man of statistics and the master of economics. —Oliver Wendell Holmes Jr., The Path of the Law I t has been more than 100 years since Oliver Wendell Holmes Jr. declared that the future of the law lay not in legal doctrine but in the insights and understandings garnered by other disciplines. Since that time, lawyers, jurists, and legal scholars have become acquainted with, embraced, and sometimes abandoned a broad array of nonlegal disciplines . The teachings of sociology, psychology, literary theory, critical theory , and most frequently economics have all been applied, with varying degrees of influence and success, to criticize and augment American jurisprudence. One perspective now largely absent from this interdisciplinary buffet is public health. This absence from legal consciousness is surprising because until relatively recently public health played a pivotal role in the development of several fields of law. But the deficit is also problematic because issues relating to the health of populations are pervasive throughout the law. Lawyers, legislators, and judges continually confront questions with profound implications for the health of a community. Hence, lawyers must understand the teachings of public health not only because the law 28 public health and american law 29 profoundly affects the health of populations, but also because an understanding of the field is necessary to appreciate the roots and nuances of multiple legal doctrines. This chapter explores the critical and reciprocal relationship between law and public health in the United States, saving for a later chapter the discussion of this relationship on a global level.1 The chapter begins by examining the differences between the perspectives of law and public health and then explores the ways in which law can affect population health. The chapter concludes by discussing public health’s impact on American legal doctrine. The Meaning of Law What is law?2 Despite the ubiquity of the term, philosophers, jurists, scholars , and advocates have debated and expounded on the meaning of the word law for thousands of years. There is no easy answer. Still, it is clear that law, like public health, has numerous common meanings. Most narrowly, the early positivists viewed it as the rules or commands that are enforceable by the state or sovereign. Since H. L. A. Hart, positivists have described law more broadly to include norms that garner legitimacy under an authoritative ‘‘rule of recognition.’’3 These norms may include not only the statutes and regulations that purport to govern a matter, but also case law, constitutions, treaties, and other sources of authority so long as they are recognized as law pursuant to a valid rule of recognition. But, in contrast to natural law theorists, positivists deny that the commands of morality standing alone, regardless of their provenance , constitute law or that rules of a state that depart from moral norms are not in fact law merely because of that departure.4 For our purposes, it is not critical to enter the jurisprudential debate between positivists, natural law theorists, and scholars from other jurisprudential schools. It is enough to observe that in common parlance law is a broad concept, subject to multiple meanings and that it includes, at the very least, most rules that are enforceable by the state.5 In addition, at least in the U.S. legal system, these commands come in multiple, explicit, and not-so-explicit forms. Thus, as Ronald Dworkin has argued, deeply held principles not only influence the law, in some circumstances they can be 30 chapter 2 considered law.6 In addition, practicing lawyers as well as legal scholars often apply the term law to the modes of analysis and argumentation, or ways of reasoning, that are used to decide which rules or principles are applicable to a given situation.7 However we define it, law helps organize and shape a society.8 Thus law provides not only the organizational structure for government (e.g., constitutional law), but for the economy and civil society itself (e.g., contract and family law). Law also helps enforce and give legitimacy to social norms, such as the norm against discrimination on the basis of race, or the norm of free speech.9 Law thus helps form...