공중보건법학의 개념과 이념적 기초

This article attempts to explore the history of public health law in the changing role of the modern state, and to define the concept and ideological foundation of public health law. This historical, conceptional and philosophical approach makes it possible to identify an academic area of public health law as a specialized law in terms of the constitution and the purpose of the state. It has to do with a formation of the modern state and the moral and constitutional obligation to protect and promote public health. Early modern state could be justified itself from the role of protecting citizen’s lives, properties and safety. The state’s role on public health has been extended broader. This is because the modern concept of public health based on epidemiology was introduced in the 19th century, and the idea of welfare state to correct an abuses of economic polarization was widely accepted in the modern industrial society. It means the nature of state’s role on public health has been changed from the maintenance of order to the guaranteeing the subjective right to health. There is a debate about the appropriate goals and definitions of “public health” and “public health law” in the United States. It reflects competing claims about the boundaries for the legitimate exercise of state power. Lawrence Gostin points out meeting citizen’s expectation of meaningful health protection should be regarded as a duty of the government. He would see reducing health inequalities as a significant mission for public health law. However, others, for example Richard Epstein, define the goals of public health narrowly. The “old public health” theory suggest state’s interventions in public health should be restricted to contagious diseases, widespread pollution and environmental threats posed by specific pathogens. This article consider this debate as an ideological tension between autonomy and paternalism. Today the determinants of health, from social, economic, and cultural factors to biological and genetic characteristics of individuals, are very complicated and interrelated. It has meaningful implications for ideological foundations of public health law. To recognize the coexistence and interaction between two law-paradigms is very important to understand public health law, and it would be impossible to explain whole area of public health law with only one of these perspectives. The most significant question is to set the boundary line between autonomy and paternalism in each cases, such as environmental exposures or smoking, drinking, obesity and other unhealthy lifestyles.