A Theory and Definition of Public Health Law
Lawrence O. Gostin, PUBLIC HEALTH LAW POWER, DUTY, RESTRAINT, Revised & Expanded Second Edition, University of California Press/ Milbank Memorial Fund, 2008
40 Pages Posted: 19 Sep 2008
Date Written: September 17, 2008
The literature, both academic and judicial, on the intersection of law and health is pervasive. The subject of law and health is widely taught, practiced, and analyzed. The fields that characterize these branches of study are called health law, health care law, law and medicine, forensic medicine, and public health law. Do these names imply different disciplines, each with a coherent theory, structure, and method that sets it apart? Notably absent from the extant literature is a theory of the discipline of public health law, an exploration of its doctrinal boundaries, and an assessment of its analytical methodology.
Public health law can be defined, its boundaries circumscribed, and its analytical methods detailed in ways that distinguish it as a discrete discipline-just as the disciplines of medicine and public health can be demarcated. With this book I hope to provide a fuller understanding of the varied roles of law in advancing the public's health. The core idea I propose is that law can be an essential tool for creating conditions to enable people to lead healthier and safer lives.
In this opening chapter, I offer a theory and definition of public health law, an examination of its core values, an assessment of state statutes in establishing the legal foundations of public health agencies, a categorization of the various models through which law acts as a tool to advance the public's health, and, finally, a description of the current debate over the legitimate scope of public health. These are the questions I will pursue: What is public health law and what are its doctrinal boundaries? Why should population health be a salient public value? What are the legal foundations of governmental public health? How can law be effective in reducing illness and premature death? And what are the political conflicts faced by public health in the early twenty-first century?
My definition of public health law follows, and the remainder of this chapter offers a justification as well as an expansion of the ideas presented:
Public health law is the study of the legal powers and duties of the state, in collaboration with its partners (e.g., health care, business, the community, the media, and academe), to assure the conditions for people to be healthy (to identify, prevent, and ameliorate risks to health in the population) and the limitations on the power of the state to constrain the autonomy, privacy, liberty, proprietary, or other legally protected interests of individuals for the common good. The prime objective of public health law is to pursue the highest possible level of physical and mental health in the population, consistent with the values of social justice.
Several themes emerge from this definition: (1) government power and duty, (2) coercion and limits on state power, (3) government's partners in the public health system, (4) the population focus, (5) communities and civic participation, (6) the prevention orientation, and (7) social justice.
Keywords: public health, government power, social justice, duties of the state
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