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What happens when the language of the law becomes a vulgar tongue? What happens, more particularly, when parties to bioethical discourse are obliged to borrow in their daily controversies the ideas, and even the language, peculiar to judicial proceedings? How suited are the habits, taste, and language of the judicial magistrate to the political, and more particularly, the bioethical, questions of our time? We ask these questions because, as the incomparable Tocqueville foresaw, Americans today truly do resolve political-and moral--questions into judicial questions. As Abraham Lincoln hoped, the Constitution "has become the political religion of the nation," and many Americans now "take for granted that the Constitution embodies moral as well as legal rules." We revere the Supreme Court as the great arbiter of American moral life, as performing a "prophetic function," as expressing what "we stand for as a people." Trial courts, L.A. Law wants to teach us, are forums for the apotheosis of social and moral reasoning. The legalist error proliferates that "moral rights [necessarily] represent claims that ought to be made in legal rights, that ought to be protected and enforced by law."


Reprinted with the permission of the Hastings Center Report and Wiley-Blackwell.