The students I teach are almost always unaware of the human right to the science; they are also largely unaware of the Universal Declaration on Bioethics and Human Rights. Their response to both is extraordinary. They hum and fizz with enthusiasm, firing off questions and forming hypotheses about the capacities of human rights-based approaches to science. For me, as their teacher, this is a delight. It’s also a concern. Here’s why.

The ricochet
Law and ethics, law and morality, law and rights, and law, ethics and rights. I use all of these phrases, as do my students and many others too. Sometimes I change the connector to aid precision: I might for example refer to the morality of law or the ethics of rights. At other times, I expand the frame, invoking ELSA or ELSI (the ethical, legal and social aspects or implications of science) or ELSPETH (the ethical, legal, social, political, economic, theological and historical implications of science). At yet other times, I switch one of the nouns to an adjective or adverb: I refer for example to ethical lawyering or ethical judgments, or quoting the title of a recent article, I speak about the right to science as a ‘global ethical resource’.

Until recently I used all of these phrases with ease. They tripped off the tongue; they felt ordinary or everyday but also useful. They seemed to capture and construct something obvious and important: namely, that there is, and ought to be, a relationship between ethics and human rights, between ethics and law, and between ethics, law and human rights—and that each of these fields is essential to deliberation and governance.

I still see it that way but I’ve also become wary of these phrases. I sense a ricochet that’s harmful to law and thus to human rights law. Specifically, when invoked in relation to ethics—as in ‘law and ethics’, or ‘ethics, law and human rights’—law can feel vapid. It feels not just less than ethics, but less than itself—a reduced version, a caricature. And my sense is that this isn’t harmful just to law; it’s also harmful to how we think and talk about ethics and human rights, and more broadly to how we think and talk about governing science.

Essentially, the problem is that phrases like ‘ethics and law’ can conjure separate spheres, with law and lawyers assigned a role downstream after the ethicists, historians, faith representatives, lay participants, economists and others have picked over the important and thorny issues, considered what ought to happen (maybe mixing in pragmatism too) and proposed solutions. In this scenario, law’s role is to ‘make it happen’; to be one of the forces that brings the preferred solution to life.

As anyone who has studied the relationship between law and social change will tell you, this mostly sets law up to fail. It also casts law as having little or nothing to contribute on what ‘ought to be’, and it pictures lawyers as mechanics or technicians and never as people who can, do and should think about problems in normative ways. In the separate spheres set-up, law is also widely cast as a ‘big stick’, which further reduces how we see and think about law’s capacities. When seen as a big stick, law becomes all about either prohibition or freedom, which brings a host of attendant problems, especially in human rights law when we try to talk about things like derogations, restrictions or limitations, positive obligations or progressive realisation.

The problems I have just described are compounded by what is known as the ‘law lag’. This is the notion that law inevitably lags behind advances in science and technology; it can extend to the notion that law impedes scientific progress. These notions have been invoked to make the case for self-regulation as the best regulation of science and technology. I am not sure that claims about a law lag would hold up to scrutiny, but what’s interesting is that there has been relatively little scrutiny of such claims. Of course, concern about the power accumulated by tech giants has led to increased interest in issues such as the ethics of AI and relatedly a growth in in-house ethics teams at tech companies. But here too I have to ask: who and what gets to be part of ‘doing ethics’? In particular, does the human rights community (including those from a law background) count amongst those ‘doing ethics’? If not, why not given that human rights law speaks to our shared commitment as regards what ought to be and provides practical tools to help achieve that.

The covidisation of ethics and law
I also think there’s been a COVID-19 effect on the problem I am raising. In places over the last year, both law and ethics have felt vapid or otherwise underpowered or offstage. In part, as Veronica Gomez and I outlined last November, calls to #followthescience have been causing intended and unintended harm. It is desirable and entirely apt to take account of good science; it’s not apt to govern in ways that suggest we should or could be led by science alone, or that scientific facts and the uses we make of them are value-free, or indeed that the pandemic’s challenges are exclusively scientific.

More recently, ethics and law have felt diminished both by our awe at the wonder of vaccine science and by the ways in which some states have been scrambling in a dubious race to be first to vaccinate ‘their own’. Those who have been insisting that vaccine passports or certificates are ‘inevitable’ have been adding to the challenges.

Moreover, throughout the pandemic there’s been a sort of low rumble suggesting that ethical reasoning isn’t hard-headed enough for times of crisis—that whether it calls itself ethics advice, human rights law or something else, this type of reasoning simply cannot function at the speed or with the level of flexibility required to moderate between ‘ought’, ‘is’, ‘can’ and ‘might’ in times of crisis.

It’s not my aim to give either ethics or law top marks for performance or achievement during the pandemic to date. I appreciate that critique is needed; critique is a pre-requisite for preparedness for future crises—decision-making time will always be in short supply during a crisis, which makes it vital that we have high-quality advance engagement with hard choices. We need to understand if the moral injury that is being experienced by so many frontline health professionals could have been avoided or reduced. We also need to understand what it was like for these professionals to have to take decisions amidst both a torrent of ethical advice and, in places or on certain issues, a dearth of it. We need to ask: have states where ethical advice has a centre of gravity—say a bioethics commission—fared better than states without this? What about those places where, as it seems, a single expert has been central? And why haven’t we heard as much about ethical advice being sought by vaccine-producing pharmaceutical companies or by their counterparts who either opted out of the vaccine race or were late starters? It has been striking how media coverage of vaccine supply has focused on the terms of contracts signed between states or regional bodies and pharmaceutical companies. For me this is another reminder to ask: what have we expected—and failed to expect—of law during this pandemic?

Legal literacy
I want to be clear: I am not a human rights lawyer looking to displace science or ethics. And I hope that the brevity of this piece hasn’t led me to caricature either science or ethics. I’m aware I haven’t been able to describe how science and ethics come in different shapes and sizes. People who do ethics, for example, may be academic philosophers writing books or articles; or they may be members of a clinical ethics committee at a local hospital, or of a government, regional or international advisory group doing what’s sometimes called ‘public bioethics’ (eg the European Group on Ethics in Science and New Technologies); or they might be part of one of the growing number of in-house teams I mentioned earlier.

At core, my argument is a simple one: we need to be more interested in the divergences, the overlaps and, more broadly, the relationships between the fields that populate phrases like ‘law and ethics’ and ‘law, ethics and rights’.

I’ll conclude with a proposal: shall we try to kick-start a new science—the science of constantly asking good questions of, and about, law? These good questions would test, tease out and harness law’s capacity to improve societal outcomes in a host of places—ranging from classrooms, courtrooms, policymaking fora and hospital rooms to public-health field stations and pandemic-response centres. In so doing, they would give us—lawyer and non-lawyer alike—better legal literacy.

Cite as: Murphy, Thérèse. "The Covidisation of Ethics and Law", GC Human Rights Preparedness, 15 March 2021, https://gchumanrights.org/preparedness/article-on/the-covidisation-of-ethics-and-law.html