On a distinction between operational & structural public health law: Avoiding the is-ought fallacy

Intended for an expert audience, the thesis of this paper is that understanding a distinction between “operational” and “structural” public health law is critical not only to making sense of public health law, but also to avoiding the is-ought fallacy. The basic difference between law that governs daily public health practice and law that shapes and reflects the selection of public health priorities and interventions is generally accepted. However, the distinction and its implications for public health law and ethics have yet to be rigorously explained and analyzed. This paper aims to fill the gap by expounding the characteristics of public health law that reflect the fluid boundaries of public health practice and that which determines which public health problems and interventions are defined as priorities within the scope of public health practice. The operational-structural distinction is important because while the former helps determine the limits of public health practice, it is less helpful in advancing debate on what public health stakeholders ought to prioritize and act on. Accordingly, understanding the distinction may help avoid the is-ought fallacy in which what public health actors actually do is erroneously taken to define the limits of that which they ought to do. The paper concludes by observing that while the operational-structural distinction is both meaningful and useful, there remains significant overlap between the two categories of public health law. Such overlap is essential if the capacity for public health practice to impact the broad determinants of population health is to be maximized.