Revista Volumen V - Academia Puertorriqueña de Jurisprudencia y ...

unfair, in view of the total absence of modern authoritative judicial precedents, to force a doctoror a nurse to go through the ordeal of a criminal trial, just to get a court opinion on the possibleinterpretation of these sections.On the contrary, others will strenuously argue that law should keep away from the regulationof science, and, instead, let things stand and society develop progressively its own rules mostlythrough bioethics, without having recourse to legislation. It is clear to me that the basic assumptionthat law should not take a position on moral issues is clearly wrong. There are certainly(and we must all be aware of it) some merits to the idea, that before legislating, society shouldtake time to observe how new modes of behavior integrate into the existing social fabric, and notnecessarily jump the gun with immediate action. This, however, in my opinion, raises perhaps aslightly different, although related issue: that of the timing of legislation. It does not, in myopinion, reflect as such on the role of law itself and cannot be seriously used as an argument tothe effect that law should stay away from moral or ethical judgment. In a democratic society, lawis, and always will be, a privileged form of expression of a general public moral and socialconsensus.What is interesting in those two types of reactions is that, most of the time, if not always, therole of law is viewed solely in terms of a binary logical process, which consists of fixing, asclearly as possible, what should be allowed and what should be prohibited. It is easy to fall intothe trap of assessing the role of law solely in terms of do’s and don’ts, or in terms of permissionand punishment. The role of law, of course, is not limited to that and its response to biologicaland scientific challenges cannot and, indeed, must not be confined within the limits of criminallaw. Civil or private law, as well as administrative law, also have an important role to play.How far, then, should the law control and monitor medicine and biology? It is perhaps easierto attempt an answer by first exposing a certain number of myths related to both law andmedicine, which have, in the past, either created unreasonable expectations or considerablydeformed the role of the law.Insofar, as law is concerned, the first myth, it appears to me, is the myth of its omnipotence.We have already addressed that problem earlier, in a more specific way, in relation to the role ofcriminal law and of legislative action as a form of social control. Law, I think we all realize, isbut one technique amongst many others, to resolve social conflicts. I do not think I need to dwellmuch more on that first point: law, as a whole, and legislation by itself, cannot solve allproblems; it never has and never will. It remains an important, but blunt and imperfect, instrumentof social control.A second myth concerns the respective roles of legislation and jurisprudence in theregulation of the medical practice. We have also already discussed that problem, but in a generalway. Some will argue that very little, or even no legislation, is needed, and also that, because ofthe need for adaptation and great flexibility, courts are to be preferred as better tools of socialcontrol.Scientific and medical areas deserve, I believe, special consideration because they raiseconcerns at two different levels of analysis. Faced with the social effects of new medical discoveries,society first has to determine and decide on their legality. Courts, of course, could also, andwill eventually, if asked to do so, decide this basic issue. It does not follow, however, in myopinion, that because courts could provide an answer, they should necessarily be entrusted withthis task. It seems to me that, in such matters, it is up to legislature to take its responsibility forthe following reasons.3