whether there are reasons to think the context in which we have examined them
Medical and health care lawyers have long seen the law as a tool for promot-
ing their interpretations of the requirements of bioethics and patients’ rights –
and hence their focus has often been on what the law ‘should’ be – but, in
contrast, they have shown comparatively little interest in whether it matters that
reform is introduced via the judiciary rather than through the legislature, despite
the constitutional issues raised by judicial ‘law-making’. Indeed, the dominance
of legal positivism in Anglo-American jurisprudence in the latter half of the
twentieth century led to considerable discomfort over the role of judges in
making law.2The development of Ronald Dworkin’s inﬂuential account of
adjudication as the expression of deep principles, on which the integrity of law
is based,3can be seen as an attempt to rescue judges from the criticism that they
lack constitutional legitimacy. Rather than ‘legislating’ in such cases, as H. L. A.
Hart suggested (because they concern issues on which the voice of Parliament is
silent), Dworkin argued that they use the resources of the law to determine the
solutions that best ﬁt the authority of the legal tradition that has been handed to
them. Hence, the legitimacy of judicial pronouncements is derived from the
authority of law, not from that of the individual judges, and adjudication is based
on the application of legal principle rather than development of political policy.4
As we show below, judicial anxiety about the possibility that they might go
beyond their legitimate role in dealing with controversial medico-legal issues
indicates that the Dworkinian thesis has clear resonances with the thinking of
judges in this area.
In practice, the process by which medical law is made is far more complex
than can be accounted for by this distinction between legislative and adjudicative
functions. Penney Lewis has shown how legal change can be achieved without
formal legal interventions that can be neatly analysed as the action of an author-
ised legislator, even a constitutionally problematic law-maker such as a judge.5
She traces the process by which contraceptive sterilisations moved from being
considered unlawful prior to the 1960s to being retrospectively acknowledged as
being lawful in the National Health Service (Family Planning) Amendment
Act 1972. She shows how by 1968 ‘a substantial medico-legal consensus had
emerged’ that sterilisation operations for contraceptive rather than therapeutic
purposes were lawful. This view supplanted the contrary consensus that had
existed at the beginning of the decade, illustrated by the notorious (and contro-
versial, even at the time) view of Lord Denning:
Take a case where a sterilisation operation is done so as to enable a man to have the
pleasure of sexual intercourse, without shouldering the responsibilities attaching to
2 A classic account of the positivist approach is J. Austin, The Province of Jurisprudence Determined
(Cambridge: CUP, 1995, original ed, 1832), and for a twentieth century restatement, see H. L.
A. Hart, The Concept of Law (Oxford: OUP, 1961).
3 R. Dworkin, Law’s Empire (London: Fontana, 1986).
4 For this distinction, see R. Dworkin, ‘Hard Cases’ in Taking Rights Seriously (London: Duckworth,
5 P. Lewis, ‘Legal Change on Contraceptive Sterilisation’ (2011) 32 J Leg Hist 295.
Hidden Law-Making and Medical Jurisprudence
© 2014 The Authors. The Modern Law Review © 2014 The Modern Law Review Limited.
344 (2014) 77(3) MLR 343–378