TY - JOUR
AU - Harrington, John
AB - Abstract This article develops a model of change in medical law. Drawing on systems theory, it argues that medical law participates in a dynamic of ‘deparadoxification’ and ‘reparadoxification’ whereby the underlying contingency of the law is variously concealed through plausible argumentation, or revealed by critical challenge. Medical law is, thus, thoroughly rhetorical. An examination of the development of the law on abortion and on the sterilization of incompetent adults shows that plausibility is achieved through the deployment of substantive common sense and formal stylistic devices. It is undermined where these elements are shown to be arbitrary and constructed. In conclusion, it is argued that the politics of medical law are constituted by this antagonistic process of establishing and challenging provisionally stable normative regimes. Medical law, Contingency, Rhetoric, Abortion, Sterilisation I. INTRODUCTION What is the dynamic of medical law? The dominant liberal view is meliorative and teleological.1 It anticipates a movement from vagueness and particularism to clarity and abstraction in law, and from paternalism to patient autonomy in medicine. These goals of universality and freedom are taken to be immanent to law. They are its telos. Progress towards them may be slow and faltering due to institutional inertia and obscurantist thinking among doctors and judges. But with doctrinal reform and the enlightenment of practitioners, steady improvement is possible.2 The law will work itself clear of impediments to reason and liberty. The liberal model has been subjected to telling critique in a number of important respects. First, it tends to overlook the chronic failure even of ‘reformed’ medical law to meet posited standards of conceptual clarity and principled coherence. A review of recent case law suggests that paradoxes and perplexities abound in practice.3 Second, it idealizes legal processes in a manner that simplifies the actual reasoning of the courts.4 Third, it is blind to its own conditions of possibility, failing to account for the strategic role of academics in creating the new discipline.5 Fourth, it implies that medical law can be kept separate from the contingencies of politics. The present article draws on these critiques to propose an alternative model of change in medical law. It goes beyond them, however, radicalizing each strand as follows. First, it argues that the perplexities of medical law are not merely local difficulties, but symptoms of modern law as a whole. Second, given this phenomenon of endemic contingency, the reasoning of the courts must be studied as an exercise in persuasion, not logical demonstration. Third, academics and other commentators involve themselves in medical law not as detached experts, but rather as participants in ongoing struggles over how to manage legal paradoxes. Their authority to intervene is itself a matter of plausibility, secured by rhetorical means. Fourth, it argues that this unceasing struggle to achieve plausibility means that medical law argumentation is unavoidably political. The article begins by reviewing the pathologies of contemporary medical law diagnosed in the work of José Miola. He reveals a catalogue of inconsistencies, circularities, gaps, and blockages in areas of the law supposed to have been brought under the discipline of reasoned moral standards. Drawing on the theory of social systems, it can be shown that these problems instantiate the paradoxical nature of modern law as a whole. Paradoxes cannot be overcome, but only ‘managed’ by being displaced into the environment of the system or by being made the subject of ever more complex distinctions within it. Either way, these ‘deparadoxification’ strategies will never be conclusive, but at best only persuasive. To make them plausible is the central task of the judge, or of any other lawyer taking a position on the matter at hand. The same is true of those who oppose the particular position taken. They will succeed in ‘reparadoxifying’ the displacements effected and the distinctions drawn to the extent that they can show them to be essentially arbitrary. This offers a useful model for the analysis of medical law which is pursued in subsequent sections. The widely recognized tendency of post-war judges and legislators, encapsulated in McNair J's direction to the jury in Bolam v Friern Hospital Management Committee,6 to defer to clinical judgment in this area can be framed, not as a wild aberration, but as a pragmatic deparadoxification strategy. The task of the analyst is to illuminate both the rhetorical means by which this strategy was justified and the counterstrategies of reparadoxification which have sought to discredit it. Two specific examples in medical law are considered here. First, the Abortion Act 1967 which made access to lawful termination of pregnancy conditional upon the approval of two registered medical practitioners; and, second, the English jurisprudence concerning the sterilization of people with learning disability. In both instances, the original delegation of decision-making power gained vital support from common sense representations of the nature of medical practice and its privileged role in interpreting and managing the human body. In both instances, academic commentators have sought to undermine the delegation of power by revealing its contingent foundations: parliamentary deal-making in the case of abortion; and the socially constructed nature of medical categories, including the body, in the case of learning disability. II. PATHOLOGIES OF MEDICAL LAW In Medical Law and Medical Ethics: A Symbiotic Relationship (2007), José Miola examined the influence of biomedical ethics upon the development of English medical law across a range of specific areas. For liberal commentators, ethics is useful as a source of substantive values, such as patient autonomy, which can provide enduring grounds for legal argumentation.7 Moreover, its formal qualities of order and abstraction embody the type of rationality to which the law aspires. However, Miola's broad conclusion is that, with the exception of informed consent, the renaissance has failed to exert the hoped-for influence upon medical law.8 Whether intentionally or not, much of Miola's study reads like an exercise in legal deconstruction. Evidence is accumulated from the case law that the project of providing a foundation (or ‘grounding’) for medical law in biomedical ethics has failed. Medical law is in fact beset by a series of what we might call ‘pathologies’ outlined in the following paragraphs. A. Over-determination9 Medical ethics, as developed by philosophers and as codified by professional bodies, was aimed at rationalizing and standardizing decision-making. However, the proliferation of rival standards emanating from different bodies means that ethical controversies are over-determined. No clear answers are available in many cases and the final decision is remitted to the conscience of the individual practitioner. This problem is not simply due to the multiplication of official and semi-official standard setting bodies, for example the General Medical Council (GMC) and British Medical Association (BMA). It is also inherent in the academic enterprise of philosophical ethics. For one thing the variety of theoretical approaches taken by philosophers means that ethical justifications can be offered for diametrically opposite solutions to most problems.10 Moreover, these justifications are themselves inherently unstable given the nature of modern ethics as a critical practice. Philosophical ethics gains its authority precisely from its instability and revisability. We are required, in the words of John Harris, to assess our beliefs and values by ‘testing them to destruction’.11 B. Renvoi In the landmark case of Gillick v West Norfolk and Wisbech Area Health Authority,12 the House of Lords held that it would be lawful for doctors to prescribe contraception to competent under-16s without their parents' involvement. Once these broad principles were laid down, the majority held that the law should defer to the ethical standards of the medical profession as regards their implementation in clinical practice. This delegation to professional norms is a feature of several areas of medical law.13 Unfortunately, as Miola carefully shows, on examination, existing ethical guidance often simply refers back to the legal authorities. This sets up an oscillation between law and ethics comparable to the problem of renvoi in the conflict of law (e.g. English choice of law rules say Italian law applies and vice versa). The vicious circle can only be broken by reintroducing the conscience of the individual practitioner as a means of ‘getting a decision made’ on the question of whether treatment is to be provided or not.14 C. Contradiction Of even greater embarrassment to the law is the decision of the Court of Appeal in Re W15 which followed on from Gillick. It held that the refusal of treatment by a minor could be overridden on the authority of the court exercising its inherent jurisdiction. In so ruling Lord Donaldson sought to discount the potentially ‘hair-raising’ implications of this view of the law, which seemed to concede massive intrusive power to individual doctors.16 He trusted, for instance, that professional ethics would block doctors from imposing an abortion on a 16- or 17-year old, even though the Court's ruling technically permitted this.17 This is, of course, blatantly self-contradictory: a given course of conduct is deemed at one and the same time to be acceptable and unacceptable in the eyes of the law. D. Under-determination Legislation intended to break with Bolam-influenced law on the medical treatment of incompetent adults by controlling and ‘programming’ the test of best interests used in clinical decision-making ends up doing precisely the opposite. This is due to the under-determined nature of the relevant test set out in section 4 of the Mental Capacity Act 2005 which contains a checklist of factors regarding the best interests of an incompetent patient.18 These need only be ‘considered’ (section 4(3),(6)) or ‘taken into account’ (section 4(7)). As Miola points out, the test thus remains open-ended, its specific application ultimately depending on the judgment of the doctor involved. GMC and BMA guidance is equally indeterminate. Consequently, the same procedure carried out on the same patient can, with equal justification, be both ethical and unethical, lawful and unlawful.19 Medical ethics, thus, either remits the question to law or it functions merely as fragments of discourse, available for piecemeal quotation by judges. Either way, it disappoints the ambitions of reformers by failing to eliminate contingency in medical law decision-making; in fact it increases it. Judges themselves add to the confusion through their inconsistent treatment of sources of ethics.20 In many areas, the ineffable judgment of the doctor continues to function as a backstop to clinical, ethical, and legal decision-making. III. PARADOXES AND DEPARADOXIFICATION IN LAW It is tempting to think of the indeterminacies and perplexities identified by Miola as merely local difficulties, capable of being conclusively remedied by feats of clearer thinking or institutional reform. However, I will argue in this section that such problems are not a consequence of a failure to reason adequately, but proceed from the inherently paradoxical form of modern law.21 The following analysis draws heavily on insights from the theory of social systems associated with the work of Niklas Luhmann. However, it is not intended as a straightforward or orthodox application of these theories. Rather, it seeks to combine them with perspectives from critical legal scholarship regarding the role of plausibility and rhetoric in the management of legal contingency. While sometimes seen as a ‘conservative’ theorist in broadly social and political terms, Luhmann's model of self-producing social systems has ‘striking similarities’ with critical and deconstructive approaches to law and society.22 A. Generic and Local Paradoxes The role of paradox in systems theory accounts can only be understood with reference to their broader understanding of how law functions.23 According to Luhmann, law consists of communications applying the code lawful/not lawful in accordance with legislative and other programmes.24 Valid legal operations, such as court judgments, necessarily refer to previous legal operations, such as precedent cases. Law is thus recursive: it continually makes and remakes itself from its own normative resources. As a result, it is ‘operationally’ closed to its environment, which is composed of other similarly functioning social systems, like science, politics, medicine, and the economy, as well as the natural world, including the human body and the human psyche. A decision on lawfulness cannot be replaced by one on truth, profitability or therapeutic benefit and remain a legal decision. Moreover, every legal communication reproduces this distinction, allocating itself to the legal system, as opposed to its environment. Thus, modern law is fully self-referential. It creates itself out of itself; it defines itself in terms of itself; it bestows validity upon itself. There is no effective ground or justification external to the legal system for the ‘foundational’ distinction between law and non-law. In the beginning (and ever after) a line must be drawn, creating form out of pre-legal formlessness. The line was and remains contingent, arbitrary, an ‘act of violence’.25 Herein lies the original paradox of the legal system. Law, esteemed as the negation of violence, in fact proceeds from it.26 Systems theory recognizes that this arbitrariness, or violence, is not merely present in the basic distinction between the legal system and its environment.27 Since every legal operation reproduces this distinction, the spectre of contingency is ‘pervasive’ throughout the law.28 A given application of the code could always have ‘gone the other way’. Thus, law is binding, but provisional; normative, but arbitrary. Contrary to the expectations of traditional legal scholarship, then, paradox is not merely a marginal problem, capable of being purged or at least contained in relation to an otherwise complete and coherent legal system. It is a pervasive and definitive feature of law. In this regard, Oren Perez distinguishes ‘generic’ from ‘local’ paradoxes.29 The former include, of course, the foundational entanglement of law and violence discussed above. In contrast, ‘the decisional paradoxes of daily legal practice’ emerge as the law seeks to manage contingency in its specific branches and in response to ‘concrete socio-legal dilemmas’.30 It is important to note that this category is broader than that of logical paradoxes. It includes ‘doctrinal weaknesses and inconsistencies’, like the pathologies of medical law revealed in Miola's work: over-determination, renvoi, contradiction, and under-determination.31 Paradoxes are a source of persistent embarrassment for theories which ideally equate law with logic and which take consistency as the system's overarching value.32 But legal decision-making ‘goes on’ notwithstanding. How is this possible? Recall that for systems theorists law is, in the first instance, an ongoing sequence of communications, not a body of rules. Paradox is integral to these operations and to the law's distinctive identity and independence. Without the distinction of law from non-law, the legal system would lose its autonomy and cease to exist as such. It is not open to lawyers simply to purify the law of its logical flaws once and for all. In practice, the foundational paradox is ‘managed’ operationally on an ongoing basis without ever being finally removed from the legal system. Indeed, as Clam argues, it is this dynamic process of ‘unfolding the paradox’ and managing contingency that generates the very substance of law.33 B. Deparadoxification and Plausibility The legal system ‘treats’ its basic paradox by making it invisible.34 This ‘deparadoxification’ takes a number of forms. Most importantly, the law develops ‘programmes’ which specify how the otherwise contingent code lawful/unlawful ‘is to be applied correctly’ in specific cases.35 These include constitutional provisions, legislation, and the principles of the common law which make application of the code depend on specific criteria, as opposed to the bare will of the immediate decision-maker. The elements of the programme will commonly be a mix of distinctions and displacements. For example, the law on the capacity of minors to consent to contraceptive treatment, a composite of common law and statute, can be said to include both of these elements.36 A distinction is drawn between over-16s and under-16s: the former are presumed competent, the latter must prove that they are. But, as was noted above, the actual decision on competence in the case of under-16s is displaced to the clinical judgment of the doctor. The underlying contingency of legal decision-making in this field will be effectively concealed for as long as this regime of distinction and displacement holds good. Programming, thus, allows the legal system to use, or more precisely to recreate, information about its social and natural environment in deparadoxifying its own operations.37 For example, changed understandings of child development were put forward by the House of Lords in Gillick, as a basis for recognizing the possibility that some under-16s could have the capacity to consent to treatment.38 Notwithstanding this cognitive openness, the system remains operatively closed. A change in medical opinion regarding the need for teenage contraception could not of itself have changed the corresponding legal regime. Only the law decides on this. Programmes, even those most deferential to outside opinion, are themselves the result of operations of the legal system. As such, they are always susceptible to repeal and amendment in the case of legislation, overruling, and distinguishing in the case of common law. On the one hand, this bestows great flexibility on law, allowing it to continually modify how it represents its environment and thus adapt to changes therein. In his judgment in Gillick Lord Scarman laid great emphasis on just this capacity of the common law.39 On the other hand, it also means that the law's programmes are themselves fully contingent. A change in legislation may render unlawful today what was lawful yesterday. Statutes and precedents, often incompatible in their detail, proliferate. Inconsistent representations of the law's social environment can be found in quite proximate areas of doctrine. For systems theory writers, a measure of provisional stability is restored by legal argumentation as developed by academics, but also by judges and advocates in the course of their reasoning.40 Primary applications of the code lawful/unlawful, informed by its programmes, are considered and an attempt made to organize and rationalize them, accounting for rules and exceptions, drawing distinctions and seeking justifications in terms of the broader principles and policies. The rationalizing project of academic medical lawyers can be characterized in functional terms as just such a deparadoxification strategy. The relative failure of the project, diagnosed by Miola, can equally be rendered as an inability fully to discharge that function. Problems of this sort are in no way confined to medical law. The stability bestowed on any given field by doctrinal argumentation is always only provisional. Rival interpretations of the primary materials may gain the ascendancy or, more likely, new legislation and new precedents will make the previous doctrinal orthodoxy untenable. Deparadoxification then is never conclusive. Distinctions and displacements may give the law ‘an aura of endowing its operations with a rational validation, but no more’.41 The key question, as Teubner notes is whether the proposed distinctions are sufficiently plausible within the web of other legal distinctions.42 This suggests that every move to deparadoxify legal operations is itself an exercise in contingent persuasion. As such it may be profitably studied, having regard to its construction and effects, as a species of rhetoric. Morten Knudsen has accurately captured this perhaps unexpected convergence. Classical rhetoric had a well developed teaching of ‘places’ … [or topics] where arguments are found (and thus where contingency can be displaced to) … Especially when this reservoir of arguments belongs to tradition its contingency is hidden and thus efficient for deparadoxification.43 Topics can be defined as self-evident premises, common sense assumptions shared by speaker and audience. They include the familiar material of legal argumentation (e.g. statutes, precedents, maxims, and principles), but also stereotyped images concerning the nature of the social world upon which the law acts (e.g. the ideal of women as mothers and homemakers, or the public interest in restricting doctors' liability for malpractice). Both forms of deparadoxification discussed above are captured by the spatial character of the topic.44 Thus, topics can either be arranged as a grid or storehouse of distinctions or defined as places where the oscillation of thought associated with paradoxes can come to rest. The rhetorical nature of legal argumentation in this systems theory model is by no means confined to the invocation of commonplaces. Like paradoxes, the demand for plausibility is pervasive in the law. Distinctions and displacements will themselves need to be justified for instance. Consequently, the whole of a judgment or an academic intervention needs to be studied as an integrated and multi-faceted rhetorical performance. Its effectiveness falls to be examined from the point of view of style, layout, audience addressed, speaker's persona and so on.45 Like topics, the form and persuasive charge of these dimensions of legal rhetoric varies over time, place and issue. The judgment of a contemporary court upholding the wish of a competent patient to have life-sustaining treatment removed will be markedly different in tone, structure and expression to a medical negligence decision from the 1950s.46 In both cases, the aesthetic qualities of the opinion delivered will add to its rhetorical force and, thus, contribute to the functional goal of concealing the contingency of legal decision-making.47 This also suggests that deparadoxification is not merely an objective by-product of the workings of the system. It has to be actively and continually achieved by those engaging in legal argumentation. The audience for legal arguments is composed in the first instance of other lawyers, including judges. Plausibility may be inferred from the extent to which distinctions and displacements are taken up by future legal decision-makers. But the audience cannot be neatly limited to such practitioners. Academics and other commentators can also be said to be addressed by legal argumentation. While it is true that ‘implausible’ legal decisions remain valid, scholarly and other critiques may function as ‘irritations’ provoking the legal system to reconsider and abandon specific deparadoxifications. The next section considers in more detail the different forms which these irritations have taken and the manner in which they impel the development of the law. IV. REPARADOXIFICATION, DISSENT, AND ESTRANGEMENT Deparadoxification strategies are provisional only. They transform ‘indeterminacy into relative indeterminacy’ but no more.48 The paradoxes of law are liable to come to the fore when ‘the ways of concealing them lose their plausibility’ in changed circumstances.49 This process of ‘reparadoxification’ happens in three main ways: as an effect of either doctrinal criticism, radical challenge to legal categories, or social and economic change. It will be argued here that in each case reparadoxification takes the form of a ‘critique of representation’.50 As discussed above, all systems are operationally closed to their environments. They take in information, but this is always refracted through their own procedures. To return to the example used in the last section, popular opinion and medical knowledge concerning child development is vital to the deparadoxification of relevant legal decision making.51 But that information is always reconstructed, or ‘re-presented’, within the system. Consequently, as Kirsty Keywood has shown, the law's portrayal of other systems, such as medicine, will inevitably be different from their own understandings of themselves, often appearing as skewed and simplistic.52 Distinctions significant in medicine may be overlooked or given little weight. The reason for this is that the legal representation is oriented towards a persuasive decision on lawfulness, whereas, for instance, the medical understanding is oriented towards acceptable diagnosis and therapeutic intervention. Law reduces the complexity of its environment to a form, or topic, useable in its own operations. It is, in Maureen Cain's words, ‘necessarily out of touch’ with the world around it.53 These representational shortcomings form the target of the different reparadoxification strategies in law. Doctrinal arguments commonly start by challenging rival interpretations of the extant legal materials. Their purpose in this is to show that the pattern of distinctions put forward by a court or other commentators is implausible. A number of examples are offered by the case law on the withdrawal of tube feeding from patients in permanent vegetative state (PVS). In Airedale NHS Trust v Bland,54 the House of Lords predicated the lawfulness of this procedure on the combined application of the following distinctions, or ‘topic grid’: the patient is diagnosed as being in PVS, not some lesser state; tube feeding is treatment, not basic care; withdrawal of treatment is an omission not an act; and omissions are not culpable if continued treatment is futile rather than being of any benefit to the patient.55 Each of these has been criticized by various commentators for being, in effect, a distinction that does not make a difference.56 In other words, their use in legal reasoning fails to guide the judge, or doctor, in any significant way. Decisions made on the basis of these criteria are to that extent arbitrary, contingent on the preferences of the decision-maker. Put differently, it can be said that these distinctions fail to represent the most serious moral issues at stake in PVS cases. It should be noted in this connection that, although medical ethics has failed to discipline the whole of medical law in a ‘positive’ sense, it is a fertile source of such ‘negative’ criticism. Recalling Harris's remarks, quoted above, we can say that legal categories, as well as moral beliefs, are tested to destruction in the process of reparadoxification. Doctrinal arguments of this sort generally aim at refining, but not overthrowing the specific legal regime in place. They can be contrasted with what Jiří Přibáň has termed radical strategies of ‘dissent’. Rather than seeking ‘the improvement and stabilization of the system’, the latter often proceed from the notion that the system of law, understood as a practice of misrepresentation, may itself be the source of injustice.57 Reparadoxification by dissent has been a particularly common feature of medical law scholarship inspired by feminist and queer theory.58 The rhetorical nature of the dissenting mode can be clarified by drawing on the idea of ‘estrangement’ developed in the theatrical practice of Bertolt Brecht. Put simply, Brecht sought to discredit traditional drama and its overriding concern with inducing feelings of empathy and identification between actors, characters, and spectators on the basis of their ‘common humanity’.59 The latter ‘mode of representation’ had the effect of making real social problems appear to be a matter of fate. In contrast, the theatre of estrangement would show these problems to be historical artefacts, constructed and thus capable of being changed or replaced altogether. Like Brecht, dissident critics seek, not to stabilize the system through incremental modification, but radically to disrupt the unity of speaker and audience around the shared common places of topical reasoning, to reveal the latent presence of violence in legal institutions. Moreover they seek, not only to challenge specific portrayals of the law's environment, but also to transform the means of representation themselves.60 They commonly deploy statistical, historical, literary, and cultural as well as orthodox legal sources in a bid to destabilize the assumption that law is a solid, unitary and hierarchical discourse.61 The strategy of estrangement is not merely an intellectual game. The law's common sense categories are most often constituted negatively, through exclusion and denial. To take one example: the class of persons eligible for state-funded health care is defined through the category of citizen which itself depends on a more or less arbitrary exclusion of non-citizens.62 We can call that which lies beyond the line of distinction and exclusion the ‘political unconscious’ of the medical law text.63 Dissenting commentators and patient activists have set themselves the task of recovering what has been made unconscious, to confront the law's representational shortcomings with a richer account of its environment. Beyond this they also seek procedural reform to allow excluded groups or individuals to influence directly the law's construction of their situations, needs and wishes.64 In sum, the dissenting strategy attributes normative value to contingency itself.65 While accepting the fact that legal deparadoxification depends on simplifications of some sort, it is argued that these should be achieved in ‘as open, accountable and revisable a manner as possible’.66 The final impetus for reparadoxification comes from what Teubner has called developments in ‘hard core social reality’ which undermine the descriptive adequacy of existing legal distinctions and confront the law with its own underlying paradoxes.67 The effect of European Union and international human rights law on questions of access to therapy provides a good example. These legal and political developments function as external irritations, triggering the ‘self-deconstruction of the law’.68 Put in terms of rhetoric, they have the effect of de-naturalizing the national spatial frame on which the older case law on allocation was predicated. The distinction between nationals and European non-nationals no longer makes (such) a difference in this area of the law. A similar process is observable in relation to professional judgment, which traditionally functioned as a ‘black box’ absorbing the contingency of decision making in medical law. Latterly, the plausibility of this displacement has been threatened by the rise in health care organizations of explicit clinical guidelines and evidence-based medicine.69 Of course, it needs to be recalled that this new ‘hard core reality’ is not simply present to the law in a mechanical fashion. Rather, it is effective only by means of rhetorical strategies of reparadoxification and renewed deparadoxification through new distinctions and displacements.70 V. DEALING WITH PARADOXES IN MEDICAL LAW This section considers two of the most important places to which the contingency of medical law has been traditionally been displaced: the clinical judgment of the medical practitioner and the human body itself. Each has functioned as a topic of medical law reasoning reducing complexity and allowing legal decision-making to proceed. Each has been subject to diverse forms of estrangement accompanied by proposals for improved representation of the law's environment. Each nonetheless continues to function as a topic in medical law reasoning, albeit of diminished plausibility. The following discussion does not pretend to be comprehensive. It concentrates chiefly on two substantive areas within which these topics have been elaborated: the Abortion Act 1967 and the common law concerning the sterilization of incompetent persons. Moreover, it focuses on a representative sample of authors, whose work both describes and participates in the dynamics of deparadoxification and reparadoxification in these areas of medical law. A. Abortion Act 1967 Under the Abortion Act 1967, access to lawful termination of pregnancy in Great Britain is dependent on the judgment of two registered medical practitioners that certain enumerated grounds have been complied with (section 1(1)). Each of these grounds is defined in medical terms: threats to the woman's life or health (section 1(1)(a),(b),(c)) or a substantial risk of serious handicap to the child if born (section 1(1)(d)). There is limited provision for the woman's social circumstances to be taken into account (section 1(2)), but this is merely a factor in the doctor's overall decision. The Act provides, furthermore, that abortions may only be carried out by registered medical practitioners or by health care workers under their direct supervision (section 1(1)).71 In essence, the Act effects a deparadoxification by displacement: legal contingency in this sensitive area is absorbed by the ‘black box’ of professional opinion. The precise form of this deferral has been upheld and enforced in the relevant case law. While courts are reluctant to investigate the specific content of the medical decision, they have stipulated that an authentic clinical evaluation must be made in every case. Abortion may not be carried out solely at the request of the woman.72 In a critical review, Anna Grear seeks to reparadoxify this legal regime in two ways. First, she argues that the Act fails to represent the relevant environment of the legal system adequately. This is what she terms the ‘reductive’ nature of the legislation which foregrounds only one aspect, namely medical, of a multi-faceted social phenomenon. ‘Simple medicalization’ is substituted for ‘the complexity of rights talk’ characteristic of the abortion debate in other jurisdictions.73 Taking an ecumenical view of that debate, she emphasizes that both the rights of women and the potential rights of the foetus are wholly overlooked in the Act. While this may have been plausible given ‘the absence of any developed rights-aware culture’ at the time the Act was passed, it appears wholly arbitrary now.74 Grear develops this estrangement effect by stressing the contradictory nature of the Act's approach to clinical judgment. As the Courts have affirmed, it places ‘a great social responsibility’ on the shoulders of the doctor.75 But this non-medical dimension is hardly compatible with the authentically clinical decision which she is required to make in such cases and for which she is primarily trained.76 This strategy is pressed still further by Sally Sheldon. Drawing on the work of feminist social scientists, she highlights the gendered nature of even routine medical decision-making.77 Clinical judgment, which was intended to absorb the law's contingency by taking the social controversy out of abortion, is itself inherently social and contestable. As such, it cannot function as a plausible topic of legal argumentation in this area. Grear's second reparadoxification strategy is directed at the political contingency of the Act's origins. She carefully examines the parliamentary debates which preceded its passing, finding in them clear evidence of ‘intense lobbying’ by bodies such as the British Medical Association and the Royal College of Obstetricians and Gynaecologists, all seeking to protect the doctor from unwarranted and unpredictable criminal liability. In fact, the latter concern was ‘somewhat synthetic’.78 As John Keown's historical study revealed, doctors were not significantly restricted by the existing common law regime, nor was there a great deal of uncertainty regarding it.79 In reality, the statutory scheme has its origins in the occupational self-interest of the medical profession, which sought to reinforce its domination of health care provision in post-war Britain. The implication of Grear's review is that these merely strategic motives are an unworthy source for morally significant legislation. Again this critique is extended in Sheldon's work. She shows that the parliamentary debates were not framed in the neutral language of public health and social policy. Instead, both proponents and opponents of law reform built their arguments upon commonplace images of women as either ‘tarts’ or ‘tired housewives’ needing guidance from benevolent doctors.80 Deference to clinical judgment had to be actively justified by the invocation of a range of other topics. It is precisely by pointing out the contingent and non-technical nature of these topics that Sheldon seeks to destabilize the core displacement effected by the Abortion Act 1967. In unpicking the relevant parliamentary debates, both Grear and Sheldon can be said to estrange their readers from the fiction of ‘legislative intention’. The latter functions as a topic of legal discourse absorbing the contingency of the law-making process by representing it as a single moment when parliament speaks unambiguously and with one voice.81 By way of this representation, the law reduces the complexity of its political environment, allowing decision-making to proceed without the need for an endless reconsideration of parliamentary motives82. Its role in deparadoxifying legal decision-making is structurally similar to that of clinical judgment. Each bars access to the political unconscious of the law. Each may be estranged by opening the ‘black box’ and showing the complexity and arbitrariness of what is usually taken to be simple and inevitable. The sustained use of non-standard sources, such as the record of parliamentary debates or the findings of social scientists, serves to break the normal frame of legal analysis. It interrupts what would otherwise appear as an inevitable flow from fictitious parliamentary will to valid law. The authority of academic commentators in this area is achieved in and through the rhetorical form of their engagement with the issues. Thus, Grear's discussion of the contingencies of the Abortion Act and of the preceding parliamentary debates is realized through a metaphorics of visibility. The effect of the Act is to ‘submerge’, ‘sublimate’, ‘suppress’, ‘mask’, and ‘eclipse’ the significant social and moral issues in this area.83 By implication the role of the scholar is to reveal, to illuminate, to clarify. Like Brecht's theatre of estrangement, there is an inherently didactic purpose to academic reparadoxification.84 The commentator is ‘produced’ by her own text as a fearless teacher and dispeller of illusions.85 The importance of this role is sustained by the generic priority given to truth over falsehood and by the embodied preference for light over darkness.86 Grear concludes by proposing an alternative mode of deparadoxification, one which she claims is a ‘thoughtful and multi-faceted response to the complex issues’ currently hidden ‘beneath a medical short cut’. The law should be opened up to the different moral positions on abortion. This promotes the formal objective of giving a say to formerly silenced groups. But, more than that, it values complexity and contingency for its own sake. Warning against ‘inappropriate closure’, Grear argues that ‘the integrity of the abortion debate’ should itself be respected by the law. She recognizes the functional cost of adopting this approach noting the deadlocked and ‘interminably polarized’ nature of the abortion debate in the USA and elsewhere. Moreover, as she notes, rights-talk itself tends to simplify the complexities of social life, reducing the issues in abortion to a binary contest of abstract principles.87 The foregoing difficulties are addressed by the second component of her reform proposal. This takes the form of a political supplement to the law: a broad strategy to promote welfare and economic rights, responsible sexual behaviour among men and the empowerment of women. Such a ‘transformative’ widening of responses to abortion would allow the law to meet the normative challenges of the moral debate while minimizing the practical consequences of its doing so.88 Though not concealing the contingency of the current law, Grear's proposal aims to defuse its impact by engaging administrative and other systems in responding to the issues presented by each side to the debate. Some questions may be raised, however, regarding the likely success of this admittedly appealing approach. For one thing, pro-choice and pro-life campaigners are likely to monitor closely and, where appropriate, to challenge not only legal, but also wider health and social programmes relevant to abortion. For another, legal decision-making on abortion will still be obliged to reduce complexity by developing a clear ranking of the relative ‘rights’ at stake. Since, in a modern society, the code of lawful/unlawful is applicable to all areas of social activity, this moral debate, as hosted by the law on abortion, will necessarily have a significant, albeit not wholly predictable, effect on broader realms of relevant social policy. B. Sterilization of Learning Disabled Patients The law concerning the sterilization of incompetent patients in England has been marked by a similar pattern of deparadoxification and reparadoxification focused on the topics of both clinical judgment and the human body.89 In its 1987 decision in Re B (A Minor) (Wardship: Sterilisation),90 the House of Lords opted to ‘Bolamize’ the question of lawfulness rather than framing it in terms of human rights.91 Their Lordships also dismissed as ‘meaningless’, a proposed distinction between therapeutic and non-therapeutic sterilizations, seeing no need for a higher level of scrutiny in the latter category of case.92 As long as the procedure was acceptable to a responsible body of medical practitioners, it would be deemed to be in the best interests of the patient. Where a diverse range of such options was thrown up, any of them would be lawful.93 In other words, legal contingency would be wholly absorbed by clinical opinion. As has been seen in relation to abortion, the reparadoxification strategies of academic commentators concentrated on the representational shortcomings of the developing legal regime. Thus, for Lee and Morgan medicalization obscured the social factors contributing to the vulnerability of people with learning disability: inadequate resources, as well as poor training and supervision of staff. Moreover, they noted that the House of Lords had assessed the capacities, needs and desires of the patient with reference to the criterion of mental age, even though this was widely rejected by developmental experts themselves as a gross oversimplification.94 Critics also sought to estrange clinical judgment in this context by recalling the controversial twentieth century history of sterilization.95 The notorious decision of the US Supreme Court in Buck v Bell,96 upholding the constitutionality of state-sponsored sterilization of people with learning disability, functioned as a counter-topic in these arguments. The legislation challenged in that case had harnessed clinical judgment to a philosophy of eugenics, itself informed by racist and misogynistic values.97 As a negative exemplar, Buck v Bell served to disrupt the assumption that the doctor's decision in these cases was purely a matter of medical opinion. This critique of representation was taken up by the Court of Appeal in the later cases of Re A (Mental Patient: Sterilisation)98 and Re SL (Adult Patient: Sterilisation: Patient's Best Interests).99 Moving away from the single test of Re B, the Court introduced a distinction between the clinical acceptability of sterilization and its appropriateness in the light of the ‘social, emotional, and other interests’ of the particular patient.100 In so far as a range of options passed scrutiny under the Bolam test, the court itself was tasked with making an affirmative choice between them.101 A mix of clinical and judicial judgment would now absorb the contingency of the decision on lawfulness. However, the retreat from simple medicalization has failed to produce a plausible and stable legal regime. As was seen in the discussion of Miola's work supra, the new test is open-ended and, thus, inherently indeterminate. Kirsty Keywood has argued that, in coping with this indeterminacy, the courts have adopted a wholly corporeal understanding of learning disability. The patient's body is represented as the original source of the ‘social, emotional, and other’ problems to be addressed by court at the second stage of the current test.102 In essence, the body itself functions as a topic of reasoning in this area of medical law. Its plausibility as such derives from its status as a ‘natural, untheorizable’ entity located in the pre-communicative environment of the legal system.103 The deparadoxifying move adopted in Re SL and Re A has been subject to reparadoxification in at least three ways. First, given the central role of medical knowledge in representing the human body, clinical judgment inevitably re-appears at the second stage of the test developed by the Court of Appeal. Doctrinal criticism argues that the distinction drawn between medical and non-medical interests makes no difference, leaving the Bolam test effectively still dominant.104 Second, technological advances in areas such as surgery, genetics, and reproductive therapies mean that the processes and constitution of the body are now subject to active manipulation. Medicine no longer seeks merely to divine and follow the objective and unalterable laws of nature, it also rewrites them. The result of this ‘hard core’ social process is that the body has now been brought within the realm of the social.105 The instability in clinical and legal reasoning produced by this qualitative change is evident, not just in connection with sterilization, but across the breadth of medical law. For example, with advances in care at the end-of-life, the legal fact of death can no longer simply be predicated upon observable, natural processes. It is a matter of social and political contestation and, therefore, endemically unsettled.106 The estranging effect of these developments is illustrated a contrario by the rhetorical exertions of conservative commentators who reassert nostalgic ideas of the ‘natural’ in a bid to shield the body against manipulation.107 The third challenge to the newer case law on sterilization takes the form of ‘radical dissent’ and proceeds by revealing that the idea of the natural body in law (and medicine) itself rests on a paradox.108 Operational closure means that the physical environment, including the sickness or health of individuals, is knowable to social systems only through their own observations. Thus, the pre-communicative status of the body is itself a ‘semantic artefact’ produced by legal, medical, and other communications.109 This insight is consonant with critical social theory which stresses the thoroughly conventional status of the body. As Judith Butler's influential analysis shows, the body is positioned in orthodox thought as the natural source of appropriate gender roles and ‘normal’ heterosexual desire. She argues, however, that in reality there exists a circular relationship between these elements: both sex and gender are themselves effects of the prevailing heteronormative regime.110 This is made evident by disruptive practices, such as drag and cross-dressing which are themselves thoroughly rhetorical, involving ‘parody’, ‘hyperbole’, ‘dissonance’, and ‘internal confusion’. Each estranges the common sense of sex and gender, exposing the contingency of the binary oppositions upon which they are based.111 Butler's work has been incisively deployed by Keywood in her critique of Re SL and Re A. She argues that the orthodox (hetero-)sexing of the body as male and female with reference to reproductive function serves to marginalize learning disabled people. The latter are assumed in the case law to be reproductive failures and, thus, beyond sex. More than this, their bodies cause them to be ‘naturally’ vulnerable or sexually voracious. This crude reduction of learning disabled people to a set of embodied traits means that their emotional and sexual interests go unrepresented in the law.112 Still less are they considered worthy of representing these interests themselves. As was noted above, clinical opinion remains the privileged source of knowledge about the bodies and, therefore, the interests of learning disabled people. This systemic misrepresentation also has the practical consequence of facilitating, if not positively mandating, intrusive and risky surgical procedures such as sterilization and contraceptive implantation. Keywood's work has notable rhetorical and pragmatic affinities with that of Grear, discussed above. She too frames the problems of the law and the tasks of the critic in terms of visibility: the courts are guilty of ‘obfuscation’ in this area, relying as they do on a medicalized ‘picture’ of human bodies; pressing social and ethical questions are ‘obscured’ from consideration; the processes whereby legal subjects are sexed need to be ‘unmasked’.113 She too proposes an institutional shift in order to compensate for the law's representational inadequacies. Decision-making in this area could be displaced from the formal legal system to dedicated tribunals, specifically composed of health care professionals and patient advocates, as well as lawyers.114 Experience with such tribunals in other jurisdictions suggests that they have the potential to ensure that the individual ‘remains at the heart of the decision-making process and is not excluded from it because of mental incapacity’. This would accommodate the ‘plurality of accounts of disability’, allowing the law to produce a more plausible and detailed image of its complex social environment.115 VI. CONCLUSION The pattern of developments in the law on abortion and on the sterilization of incompetent adults indicates that paradoxes are far from being simply technical problems, quietly impelling legal evolution.116 Rather, they constitute points of entry for political struggle in law and, thus, a focus for multiple strategies ‘to establish and re-establish the terms and arrangements of social life’.117 Radical dissent and broader societal change clearly represent moments in these struggles. However, as critical legal scholars have argued, even routine doctrinal debates are unavoidably a matter of political contestation.118 The persuasiveness of these interventions and of the distinctions and displacements which they propose commonly depends on their resonance with broader social arrangements. Thus, the deferral to clinical judgment established by the Abortion Act 1967 was consistent with a broader pattern of professional autonomy within the post-war welfare state.119 It would be wrong, however, to see these specific legal developments as simple reflexes of a fixed, underlying social structure. For one thing, the social context is itself composed of multiple deparadoxifications and reparadoxifications, themselves, equally contingent and equally rhetorical.120 For another, legal developments and arguments around them actively contribute to the rise and decline of specific contexts. Feminist critiques which emphasized choice and contingency in medical law can be seen as ‘provocatively doubting the plausibilities’ of the post-war settlement.121 As such they have, consciously or unconsciously, made an authentic contribution to the plausibilities of the current neo-liberal dispensation.122 Medical law is, thus, the venue for a range of social conflicts. It cannot be reduced to any single one of them. Its politics are plural, incapable of being read off from some master-script. They can only be observed in the ceaseless and varied rhetorical practice of legal argumentation itself. ACKNOWLEDGEMENTS I am grateful to Gavin Anderson, Anna Grear, David Gurnham, Morten Knudsen, Jean McHale, Ambreena Manji, Ralf Rogowski, and Kenneth Veitch for their comments on earlier drafts. All responsibility for errors and infelicities is mine alone. 1 See the sources discussed in J Montgomery, ‘Law and the Demoralisation of Medicine’ (2006) 26 Legal Stud 185. 2 See I Kennedy, Treat me Right Essays in Medical Law and Ethics (Clarendon, Oxford 1988) 385–413. 3 J Miola, Medical Law and Medical Ethics: A Symbiotic Relationship (Hart, Oxford 2007). 4 J Montgomery, ‘Law and the Demoralisation of Medicine’ (2006) 26 Legal Stud 185. 5 K Veitch, The Jurisdiction of Medical Law (Ashgate, Aldershot 2007). 6 [1957] 2 All ER 118 (at 122). 7 See for example, I Kennedy, The Unmasking of Medicine (Granada, London 1983) 125; S McLean, Old Law, New Medicine. Medical Ethics and Human Rights (Pandora, London 1999) 20. 8 J Miola, Medical Law and Medical Ethics: A Symbiotic Relationship (Hart, Oxford 2007) 209ff. 9 These labels are mine. 10 J Miola, Medical Law and Medical Ethics: A Symbiotic Relationship (Hart, Oxford 2007) 213, 48. 11 J Harris, The Value of Life: An Introduction to Medical Ethics (Routledge, London 1994) 5, quoted in J Miola, Medical Law and Medical Ethics: A Symbiotic Relationship (Hart, Oxford 2007) 57. 12 [1986] 1 AC 112 (CA and HL). 13 For examples, see J Miola, Medical Law and Medical Ethics: A Symbiotic Relationship (Hart, Oxford 2007) 79, 185. 14 J Miola, Medical Law and Medical Ethics: A Symbiotic Relationship (Hart, Oxford 2007) 112, 114. 15 [1992] 4 All ER 627 (CA). 16 [1992] 4 All ER 627 (CA at 635). 17 [1992] 4 All ER 627 (CA at 635). 18 For example: the likelihood of patient regaining capacity (s 4(3)); their past and present wishes (s 4(6)(a)); beliefs and values (s 4(6)(b)); the views of caretakers (s 4(7)(a)). 19 J Miola, Medical Law and Medical Ethics: A Symbiotic Relationship (Hart, Oxford 2007) 145, 146, 215. 20 J Miola, Medical Law and Medical Ethics: A Symbiotic Relationship (Hart, Oxford 2007) 217. 21 G Teubner, ‘“And God Laughed”: Indeterminacy, Self-Reference and Paradox in Law’ (1990) 7 Stanford Lit Rev 15, 21. 22 G Teubner, ‘The King's Many Bodies: The Self-Deconstruction of Law's Hierarchy’ (1997) 31 Law Soc Rev 763, 766. 23 See further, A Philippopoulos-Mihalopoulos, Niklas Luhmann: Law, Justice, Society (Routledge, London 2010) 59–65. 24 See generally, N Luhmann, Das Recht der Gesellschaft (Suhrkamp, Frankfurt-am-Main 1993) 165ff. 25 J Clam, ‘The Reference of Paradox: Missing Paradoxity as Real Perplexity in Both Systems Theory and Deconstruction’ in O Perez and G Teubner (eds), On Paradoxes and Inconsistencies in Law (Hart, Oxford 2006) 77, 84. 26 See R Rogowski, ‘The Paradox of Law and Violence: Modern and Postmodern Readings of Benjamin's “Critique of Violence”’ (1994) 18 New Comparison 131. 27 On legal deconstruction, see M Davies, ‘Delimiting the Law: ‘Postmodernism’ and the Politics of Law’ (Pluto, London 1996). On the similarities and differences between the two approaches, see G Teubner, ‘Dealing with Paradoxes of Law: Derrida, Luhmann, Wiethölter’ in O Perez and G Teubner (eds), On Paradoxes and Inconsistencies in Law (Hart, Oxford 2006) 41. 28 G Teubner, ‘“And God Laughed”: Indeterminacy, Self-Reference and Paradox in Law’ (1990) 7 Stanford Lit Rev 15, 26. 29 O Perez, ‘Law in the Air: A Prologue to the World of Legal Paradoxes’ in O Perez and G Teubner (eds), On Paradoxes and Inconsistencies in Law (Hart, Oxford 2006) 3, 17–22. 30 G Teubner, ‘Dealing with Paradoxes of Law: Derrida, Luhmann, Wiethölter’ in O Perez and G Teubner (eds), On Paradoxes and Inconsistencies in Law (Hart, Oxford 2006) 41, 50. 31 See further P Suber, The Paradox of Self-Amendment: A Study of Logic, Law, Omnipotence and Change (Peter Lang, New York 1990) 241ff. 32 See GP Fletcher, ‘Paradoxes in Legal Thought’ (1985) 85 Columbia Law Rev 1263. 33 J Clam, ‘The Reference of Paradox: Missing Paradoxity as Real Perplexity in Both Systems Theory and Deconstruction’ in O Perez and G Teubner (eds), On Paradoxes and Inconsistencies in Law (Hart, Oxford 2006) 77, 86. 34 A Philippopoulos-Mihalopoulos, Niklas Luhmann: Law, Justice, Society (Routledge, London 2010) 65. 35 N Luhmann, Das Recht der Gesellschaft (Suhrkamp, Frankfurt-am-Main 1993) 190. 36 The chief sources are respectively Gillick v West Norfolk and Wisbech Area Health Authority [1986] 1 AC 112 (CA and HL) and s 8 Family Law Reform Act 1969. 37 M King and C Thornhill, Niklas Luhmann's Theory of Politics and Law (Palgrave, London 2003) 60. 38 Gillick v West Norfolk and Wisbech Area Health Authority [1986] 1 AC 112 (CA and HL per Lord Fraser at 171; Lord Scarman at 182). 39 Gillick v West Norfolk and Wisbech Area Health Authority [1986] 1 AC 112 (CA and HL at 183). 40 N Luhmann, Das Recht der Gesellschaft (Suhrkamp, Frankfurt-am-Main 1993) 338ff. 41 M King and C Thornhill, Niklas Luhmann's Theory of Politics and Law (Palgrave, London 2003) 48. 42 G Teubner, ‘Dealing with Paradoxes of Law: Derrida, Luhmann, Wiethölter’ in O Perez and G Teubner (eds), On Paradoxes and Inconsistencies in Law (Hart, Oxford 2006) 41, 51. 43 M Knudsen, ‘Structural Couplings between Organizations and Function Systems: Looking at Standards in Health Care’ (2007) 14 Cybernet Hum Knowing 111, 117. 44 On the topical nature of legal reasoning generally, see T Viehweg, Topik und Jurisprudenz. Ein Beitrag zur rechtswissenschaftlichen Grundlagenforschung (5th edn CH Beck, München 1974); and in medical law, J Harrington, ‘Migration and Access to Health Care in English Law: A Rhetorical Critique’ (2008) 4 Int J Law Context 315. 45 See P Goodrich, ‘Anti-Teubner: Autopoiesis, Paradox and the Theory of Law’ (1999) 13 Soc Epistemol 197, 212. 46 Contrast the judgments of Butler Sloss P and Denning LJ respectively in Re B (Consent to Treatment: Capacity) [2002] EWHC 429 and Hatcher v Black, The Times, 2 July 1954. 47 On this function of style, see F Jameson, The Political Unconscious. Narrative as Socially Symbolic Act (Routledge, London 1981) 29. 48 G Teubner, ‘“And God Laughed”: Indeterminacy, Self-Reference and Paradox in Law’ (1990) 7 Stanford Lit Rev 15, 25. 49 G Teubner, ‘The King's Many Bodies: The Self-Deconstruction of Law's Hierarchy’ (1997) 31 Law Soc Rev 763, 771. 50 F Jameson, Brecht and Method (Verso, London 1998) 38. 51 This theoretical framework is laid out and applied convincingly in M King, ‘An Autopoietic Approach to the Problems Presented by “Parental Alienation Syndrome”’ (2002) 13 J Forensic Psychiatr 609. 52 See K Keywood, ‘Disabling Sex: Some Legal Thinking about Sterilization, Learning Disability and Embodiment’ in A Morris and S Nott (eds), Well Women. The Gendered Nature of Health Care Provision (Aldershot, Ashgate 2001) 21. 53 M Cain, ‘Necessarily Out of Touch: Thoughts on the Social Organization of the Bar’ (1976) 23 Soc Rev Monogr 226, 226. 54 [1993] AC 789 (FamD, CA and HL). 55 For a review of Bland and subsequent cases, as well as the relevant secondary literature, see S Pattinson, Medical Law and Ethics (2nd edn Sweet & Maxwell, London 2009) 536–43. 56 See respectively, JK Mason and GT Laurie, Mason and McCall Smith's Law and Medical Ethics (Oxford University Press, Oxford 2006) 594–6; J Finnis, ‘Bland: Crossing the Rubicon?’ (1993) 109 LQR 329; S Pattinson, Medical Law and Ethics (2nd edn Sweet & Maxwell, London 2009) 557; and J Keown, ‘Restoring Moral and Intellectual Shape to the Law after Bland’ (1997) 113 LQR 482. 57 J Přibáň, Dissidents of Law: On the 1989 Velvet Revolutions, Legitimations, Fictions of Legality and Contemporary Version of the Social Contract (Ashgate, Aldershot 1999) 171. 58 For example, see the essays collected in S Sheldon and M Thomson (eds), Feminist Perspectives on Health Care Law (Cavendish, London 1998). 59 B Brecht, ‘Indirect Impact of the Epic Theatre’ in J Willett (ed), Brecht on Theatre: The Development of an Aesthetic (Hill and Wang, New York 1964) 57, 60. 60 See W Benjamin, Reflections (Schocken, New York 2007) 233. 61 P Goodrich, Law in the Courts of Love (Routledge, London 1996) 112–3. 62 See J Harrington, ‘Migration and Access to Health Care in English Law: A Rhetorical Critique’ (2008) 4 Int J Law Context 315. 63 F Jameson, The Political Unconscious. Narrative as Socially Symbolic Act (Routledge, London 1981) 34. 64 The Mental Capacity Act 2005 offers a good example of such innovation. It provides inter alia that incompetent persons be encouraged and enabled to participate in any treatment decision concerning them (s 4(4)) and that their past and present wishes and feelings be ascertained and considered (s 4(6)). 65 See A Fischer-Lescano and R Christensen, ‘Auctoritatis Interpretatio: How Systems Theory Deconstructs Decisionism’ (2012) 21 Soc Legal Stud 93, 110. 66 P Fitzpatrick, Modernism and the Grounds of Law (Cambridge University Press, Cambridge 2001) 105. 67 G Teubner, ‘The King's Many Bodies: The Self-Deconstruction of Law's Hierarchy’ (1997) 31 Law Soc Rev 763, 771. 68 G Teubner, ‘The King's Many Bodies: The Self-Deconstruction of Law's Hierarchy’ (1997) 31 Law Soc Rev 763, 769. 69 See W Vogd, ‘Professionalisierungsschub oder Auflösung ärztlicher Autonomie: die Bedeutung von Evidence-Based Medicine unter der neuen funktionalen Eliten in der Medizin aus system- und interaktionstheoretischer Perspektive’ (2002) 31 Zeitschr Soziol 294. 70 See U Stäheli, Sinnzusammenbrüche. Eine dekonstruktive Lektüre von Niklas Luhmanns Systemtheorie (Velbrück, Weilerswist 2000) 221. 71 See Royal College of Nursing v Department of Health and Social Security [1981] AC 800 (HL). 72 R v Smith [1974] 1 All ER 376 (CA). 73 A Grear, ‘The Curate, A Cleft Palate and Ideological Closure in the Abortion Act 1967 – Time to Reconsider the Relationship between Doctors and the Abortion Decision’ [2004] 4 Web JCLI 1, 4, 8 – available at <http://webjcli.ncl.ac.uk/2004/issue4/grear4.html>. 74 A Grear, ‘The Curate, A Cleft Palate and Ideological Closure in the Abortion Act 1967 – Time to Reconsider the Relationship between Doctors and the Abortion Decision’ [2004] 4 Web JCLI 1, 9, 11 – available at <http://webjcli.ncl.ac.uk/2004/issue4/grear4.html>. 75 R v Smith [1974] 1 All ER 376 (CA per Scarman LJ at 381); Paton v British Pregnancy Advisory Service Trustees [1978] 2 All ER 987 (FamD per Sir George Baker P at 991). 76 A Grear, ‘The Curate, A Cleft Palate and Ideological Closure in the Abortion Act 1967 – Time to Reconsider the Relationship between Doctors and the Abortion Decision’ [2004] 4 Web JCLI 1, 9 – available at <http://webjcli.ncl.ac.uk/2004/issue4/grear4.html>. 77 S Sheldon, Beyond Control: Medical Power and Abortion Law (Pluto, London 1997) 49–50. 78 A Grear, ‘The Curate, A Cleft Palate and Ideological Closure in the Abortion Act 1967 – Time to Reconsider the Relationship between Doctors and the Abortion Decision’ [2004] 4 Web JCLI 1, 4, 5 – available at <http://webjcli.ncl.ac.uk/2004/issue4/grear4.html>. 79 J Keown, Abortion, Doctors and the Law (Cambridge University Press, Cambridge 1988) 78 quoted in A Grear, ‘The Curate, A Cleft Palate and Ideological Closure in the Abortion Act 1967 – Time to Reconsider the Relationship between Doctors and the Abortion Decision’ [2004] 4 Web JCLI 1, 5 – available at <http://webjcli.ncl.ac.uk/2004/issue4/grear4.html>. 80 S Sheldon, Beyond Control: Medical Power and Abortion Law (Pluto, London 1997) 32ff. 81 P Goodrich, Reading the Law: A Critical Introduction to Legal Method and Techniques (Blackwell, Oxford 1986) 122. 82 N Luhmann, Das Recht der Gesellschaft (Suhrkamp, Frankfurt-am-Main 1993) 420. 83 A Grear, ‘The Curate, A Cleft Palate and Ideological Closure in the Abortion Act 1967 – Time to Reconsider the Relationship between Doctors and the Abortion Decision’ [2004] 4 Web JCLI 1, 6, 6, 7, 7, 9 – available at <http://webjcli.ncl.ac.uk/2004/issue4/grear4.html>. 84 See B Brecht, ‘Theatre for Pleasure or Theatre for Instruction’ in J Willett (ed), Brecht on Theatre: The Development of an Aesthetic (Hill and Wang, New York 1964) 69. 85 On the ‘author’ as rhetorical effect, see WC Booth, The Rhetoric of Fiction (2nd edn Chicago University Press, Chicago 1993) 71. 86 See G Lakoff and M Johnson, Metaphors We Live By (University of Chicago Press, Chicago 1980) 48. 87 A Grear, ‘The Curate, A Cleft Palate and Ideological Closure in the Abortion Act 1967 – Time to Reconsider the Relationship between Doctors and the Abortion Decision’ [2004] 4 Web JCLI 1, 13, 11 – available at <http://webjcli.ncl.ac.uk/2004/issue4/grear4.html>. 88 A Grear, ‘The Curate, A Cleft Palate and Ideological Closure in the Abortion Act 1967 – Time to Reconsider the Relationship between Doctors and the Abortion Decision’ [2004] 4 Web JCLI 1, 14 – available at <http://webjcli.ncl.ac.uk/2004/issue4/grear4.html>. 89 The term ‘patient’ as used here refers to such individuals in the context of the proposed sterilization procedure, rather than to the fact of their disability itself. 90 [1987] 2 All ER 211 (HL). Re B concerned a 17-year-old woman. The approach to sterilization taken there was extended to adult patients in F v West Berkshire Health Authority [1989] 2 All ER 545 (HL). 91 This contrasted sharply with the principled approach of the Canadian Supreme Court in Re Eve (1987) 31 DLR (4d) 1 (SCC). 92 Re B (A Minor) (Wardship: Sterilisation) [1987] 2 All ER 211 (HL per Lord Hailsham at 213). 93 Re W (Mental Patient) (Sterilisation) [1993] 1 FLR 381 (Hollis J). 94 R Lee and D Morgan, ‘Sterilisation and Mental Handicap: Sapping the Strength of the State?’ (1988) 15 J Law Soc 229, 238–9. 95 MDA Freeman, ‘Sterilising the Mentally Handicapped’ in MDA Freeman (ed), Medicine, Ethics and the Law (Stevens, London 1988) 55. 96 274 US 200 (1927). 97 This purpose is expressed in Wendell Holmes CJ's frequently cited comment that ‘Three generations of imbeciles are enough’: Buck v Bell, 274 US 200, 207 (1927). 98 [2000] 1 FCR 193 (CA). 99 [2000] 2 FCR 452 (CA). 100 This formulation is taken from Re SL (Adult Patient: Sterilisation: Patient's Best Interests) [2000] 2 FCR 452 (CA per Butler-Sloss LJ at 464). 101 These decisions pre-date the coming into force of the Mental Capacity Act 2005. Their extension of ‘best interests’ beyond the purely medical is reflected the terms of s 4 of the Act. This sets out the factors to be considered when decisions are made on behalf of persons who lack capacity. 102 K Keywood, ‘“I'd Rather Keep Him Chaste”: Retelling the Story of Sterilisation, Learning Disability and (Non)-Sexed Embodiment’ (2001) 9 Feminist Legal Stud 185, 192. 103 K Keywood, ‘Disabling Sex: Some Legal Thinking about Sterilization, Learning Disability and Embodiment’ in A Morris and S Nott (eds), Well Women. The Gendered Nature of Health Care Provision (Ashgate, Aldershot 2001) 21, 31. 104 K Keywood, ‘“I'd Rather Keep Him Chaste”: Retelling the Story of Sterilisation, Learning Disability and (Non)-Sexed Embodiment’ (2001) 9 Feminist Legal Stud 185, 190. 105 J Bauch, Gesundheit als sozialer Code: Von der Vergesellschaftung des Gesundheitswesens zur Medikalisierung der Gesellschaft (Juventa, Weinheim 1996) 58, 61. 106 J Harrington, ‘Time as a Dimension of Medical Law’ (2012) 20 Med Law Rev 491; see further S Lavi, ‘Autopoiesis, Nihilism and Technique: On Death and the Origins of Legal Paradoxes’ in O Perez and G Teubner (eds), On Paradoxes and Inconsistencies in Law (Hart, Oxford 2006) 247. 107 See D Gurnham, Memory, Imagination, Justice. Intersections of Law and Literature (Ashgate, Farnham 2009) 157ff. 108 S Buckel, Subjektivierung und Kohäsion. Zur Rekonstruktion einer materialistischen Theorie des Rechts (Velbrück, Weilerswist 2007) 35. 109 K Keywood, ‘Disabling Sex: Some Legal Thinking about Sterilization, Learning Disability and Embodiment’ in A Morris and S Nott (eds), Well Women. The Gendered Nature of Health Care Provision (Ashgate, Aldershot 2001) 21, 31. 110 J Butler, Gender Trouble: Feminism and the Subversion of Identity (Routledge, New York 1990) 35, 31. 111 J Butler, Gender Trouble: Feminism and the Subversion of Identity (Routledge, New York 1990) 187, 43, 192. 112 K Keywood, ‘“I'd Rather Keep Him Chaste”: Retelling the Story of Sterilisation, Learning Disability and (Non)-Sexed Embodiment’ (2001) 9 Feminist Legal Stud 185, 191–3. 113 K Keywood, ‘“I'd Rather Keep Him Chaste”: Retelling the Story of Sterilisation, Learning Disability and (Non)-Sexed Embodiment’ (2001) 9 Feminist Legal Stud 185, 185, 193; K Keywood, ‘Disabling Sex: Some Legal Thinking about Sterilization, Learning Disability and Embodiment’ in A Morris and S Nott (eds), Well Women. The Gendered Nature of Health Care Provision (Ashgate, Aldershot 2001) 21, 28, 34. 114 K Keywood, ‘Disabling Sex: Some Legal Thinking about Sterilization, Learning Disability and Embodiment’ in A Morris and S Nott (eds), Well Women. The Gendered Nature of Health Care Provision (Ashgate, Aldershot 2001) 21, 33. 115 For a fuller exposition of the implications of this proposal in the related context of anorexia nervosa, see K Keywood, ‘My Body and Other Stories: Anorexia Nervosa and the Legal Politics of Embodiment’ (2000) 9 Soc Legal Stud 495, 508. 116 U Stäheli, Sinnzusammenbrüche. Eine dekonstruktive Lektüre von Niklas Luhmanns Systemtheorie (Velbrück, Weilerswist 2000) 273. 117 S Buckel, Subjektivierung und Kohäsion. Zur Rekonstruktion einer materialistischen Theorie des Rechts (Velbrück, Weilerswist 2007) 35–6; AC Hutchinson, It's All in the Game: A Non-Foundationalist Account of Law and Adjudication (Duke University Press, Durham [NC] 2000) 173. 118 For example, see C Dalton, ‘An Essay in the Deconstruction of Contract Doctrine’ (1985) 94 Yale Law J 997. 119 J Harrington, ‘Visions of Utopia: Markets, Medicine and the National Health Service’ (2009) 29 Legal Stud 376. 120 See B Jessop, State Theory. Putting the Capitalist State in its Place (Polity, Cambridge 1990) 320–35. 121 G Teubner, ‘Dealing with Paradoxes of Law: Derrida, Luhmann, Wiethölter’ in O Perez and G Teubner (eds), On Paradoxes and Inconsistencies in Law (Hart, Oxford 2006) 41, 53. 122 See generally F Jameson, ‘Culture and Finance Capitalism’ (1997) 24 Crit Inq 246. © The Author [2014]. Published by Oxford University Press; all rights reserved. For Permissions, please email: journals.permissions@oup.com
TI - OF PARADOX AND PLAUSIBILITY: THE DYNAMIC OF CHANGE IN MEDICAL LAW
JO - Medical Law Review
DO - 10.1093/medlaw/fwt036
DA - 2014-07-01
UR - https://www.deepdyve.com/lp/oxford-university-press/of-paradox-and-plausibility-the-dynamic-of-change-in-medical-law-yLmzAe4VRw
SP - 305
EP - 324
VL - 22
IS - 3
DP - DeepDyve
ER -