Populations, Public Health, and the Law

Introduction

INTRODUCTION Salus populi suprema lex. —Common law maxim T he venerable common law maxim, salus populi suprema lex, expresses a principle long noted, even if infrequently followed, by American law: the well-being of the community is the highest law. The maxim reminds us that law exists, at least in part, to serve the common good. To do so, law must be understood in light of that goal. But what is the common good? In a diverse and complex society, such as our own, people disagree, often vehemently, about what constitutes the common good. Some citizens equate it with national wealth, others with military strength; some with godliness, others with secular tolerance. These disagreements rightly form the spark for public discussion and democratic engagement. In a democracy, even as imperfect a democracy as our own, conceptions of the common good are always subject to debate. Still, there can be little doubt that public health is an important component of the common good. When a plague ravages a community, no other good can be realized until public health is restored. Even when the threat to public health is not catastrophic, when a society’s survival is not on the line, the protection of public health remains vital to ensuring that individuals and communities are healthy enough to participate in civic life and pursue their own life’s goals.1 Perhaps it is for this reason that the American polity has always presumed that public health protection is both an appropriate and an important goal, if not duty, of government. Indeed, whenever a new threat to public health appears or gains public salience, be it toxic chemicals or pandemic influenza, mad cow disease or autism, the public has always 1 2 introduction demanded that government take some action, preferably sooner rather than later. More often than not, the action adopted relies on the law. Yet, despite the public’s implicit recognition of the importance of public health, as well as law’s utility to public health, few scholars have explored public health’s relationship to law.2 Nor have many asked what legal reasoning would or could look like if it accepted that public health protection was a critical goal of law. Scholars have also largely failed to consider how legal analysis would change if it were to incorporate the methods and perspective of the discipline of public health. This book asks those questions and answers them by offering a new approach to legal analysis, one that emphasizes the importance of public health and incorporates that discipline’s methodology into the core of legal reasoning. This approach, which I call population-based legal analysis, takes as its starting point the fundamental recognition that law seeks, among other things, to protect and promote public health. In other words, public health protection is one of the rationales for law, an important but certainly not the only component of salus populi. Population-based legal analysis further asserts that to fulfill its public health function, law must acknowledge the critical importance of populations. Populations, as well as individuals, must be viewed as central targets of the law’s concern. In addition, legal analysis must be open to and mindful of empirically gained knowledge as well as probabilistic reasoning. As the chapters that follow demonstrate, population-based legal analysis provides a powerful critique of contemporary legal discourse. In addition , it can help the law fulfill the critical mission of protecting the public’s health. And by placing populations at the center of the legal stage while emphasizing the importance of empirical evidence and probabilistic thinking , population-based legal analysis can enrich and expand legal discourse , offering an alternative to the individualism and formalism that is excessive in much of contemporary American law, especially contemporary constitutional law. Going forward, however, a very real risk must be addressed. Historically , the cry of public health has frequently been used to justify draconian and oppressive state actions. All too often such measures, from detention to mandatory medical treatment, have fallen disproportionately on the shoulders of already vulnerable populations. In effect, the laudable goal of public health protection has often been misapplied, or even abused, to introduction 3 subvert other critical values held by our legal system, such as equality and due process. The chapters that follow offer many examples. For now, it should suffice to recall that eugenicists relied on the claim of public health...