‘Red in Tooth and Claw’: The Idea of Progress in Medicine and the Common Law

Abstract

The interaction of medicine and the common law is best understood through an examination of the epistemic properties shared (or taken to be shared) by both disciplines. One such property is represented in the ideal of evolutionary progress through a conflict of ideas, as developed in the work of Karl Popper on science and politics. This ideal also provides an orientation for judicial and theoretical reflections on the role of the dissenting judge in the development of the common law. It can be linked furthermore with broader ideologies of progress that valorize liberal political and economic arrangements. The medical negligence jurisprudence of the English courts has until recently been structured by an understanding that medicine, as a science, participates in this dynamic of progress. Consequently, the protection of medical pluralism from close judicial scrutiny has been taken to be a matter of public interest. However, this weak liability regime is now threatened by increased judicial activism, regulatory intervention and patient consumerism. The latter are in turn underpinned by a series of fundamental critiques directed at the idea of progress in medicine and science.

Medical law and the power of life and death

“…3 The form of inquiry usually undertaken seeks both to establish the degree to which the law recognises and implements various ethical valueshuman rights and autonomy are often marked out as particular favourites -and, to the extent that it fails to do so, to call for reform of the offending legal approach or practice. 4 While this type of analysis is by no means devoid of usefulness, 3 For a similar characterisation of the dominant mode of reflection in this field, and an interesting attempt to promote an alternative methodology -an epistemic approach to the relationship between the common law and medicine -see Harrington (2002). 4 A relevant example in the context of this article would be Vanessa Munro's analysis of Re A (Children), in which she argues for the incorporation of a relational idea of rights in legal reasoning 'in contexts within which the identification of abstract and disinterested individual legal subjects is not always possible, nor profitable. '…”