In most Western countries, health law bioethics are strongly intertwined. This strong connection is the result of some specific factors that, in the early years of these disciplines, facilitated a rapid development of both. In this paper, I analyse these factors and construe a development theory existing of three phases, or ideal‐typical models. In the moralistic‐paternalistic model, there is almost no health law of explicit medical ethics and the little law there is is usually based on traditional morality, combined with (...) paternalist motives, the objections to this modal are that its paternalism and moralism are unacceptable, that it is too static and knows no external control mechanisms. In the liberal model, which is now dominant on most Western countries, law and ethics closely cooperate and converge, both disciplines use the same framework for analysis: they are product‐oriented rather than practice‐oriented; they use the same conceptual categories, they focus on the minimally decent rather than the ideal, and they are committed to the same substantive normative theory in which patient autonomy and patient rights are central. However, each of these four characteristics also result in a certain one‐sidedness. In some countries, a third model is emerging. In this postliberal model, health law is more modest and acknowledges its inherent and normative limits, whereas ethics takes a richer and most ambitious self image. As a result health law and ethics will partly diverge again. (shrink)

Concepts such as law, religion or morality may refer both to a practice (or process) and to a doctrine (or product). My thesis is that we should not regard these as separate phenomena, but as two partly incompatible models of the same phenomenon. Law, religion and morality are therefore essentially ambiguous concepts (EAC). An EAC is a concept which refers to a dynamic phenomenon that may only be described and modeled in at least two different ways that are each essentially (...) incomplete and which are partly incompatible with each other. This means that we have to choose between either an incomplete description or an incoherent one. An EAC resembles an essentially contested concept (ECC) as both allow of conflicting conceptions. However, for an ECC the explanation of pluralism lies in the evaluative character of the concept, for an EAC it lies in the dynamic character of the phenomenon. The insight that many of our social concepts are essentially ambiguous may provide a better understanding of social and customary rules and of the debate between legal positivism and its opponents. I reconstruct the positions of three contributors to this debate, Fuller, Hart and Dworkin. An EAC framework offers a better insight into their theories, highlights the deficiencies, and explains why their debates were characterized by serious misunderstandings. (shrink)