Hidden Law‐Making in the Province of Medical Jurisprudence

AuthorCaroline Jones,Hazel Biggs,Jonathan Montgomery
Publication Date01 May 2014
Volume 77 May 2014 No 3
Hidden Law-Making in the Province of
Medical Jurisprudence
Jonathan Montgomery, Caroline Jones and Hazel Biggs*
Judges articulate their role in controversial cases of medical ethics in terms of deference to
Parliament, lest their personal morality be improperly brought to bear. This hides a wide range
of law-making activities, as parliamentary sovereignty is diffused by ‘intermediate law-makers’,
and judicial activity is more subtle than the deference account implies. The nature of litigation
raises questions about the contributions of other legal personnel and also the nature of the parties’
interests in test-cases. While judges demonstrate an awareness of some of these issues and anxiety
about the constitutional legitimacy of their work, a more nuanced account is needed of their
proper role. This may be built on Austin’s theory of tacit legislation. It may draw from human
rights law. However, considerable work is required before the complexities of hidden law-
making can be properly incorporated into the province of medical jurisprudence.
This paper is concerned with some questions about the constitutional legitimacy
of judicial law-making in the context of medical and health care law.1It draws
attention to a range of problems that are created by the way in which the law is
developed outside of parliamentary processes and identifies questions for further
consideration if this fuller picture of law-making processes is acknowledged. The
issues that it addresses include more general ones, concerning the role of litiga-
tion and other forms of ‘hidden’ law-making in the development of law on issues
that are controversial in a pluralist society. We consider in our conclusion
*Jonathan Montgomery, Faculty of Laws, University College London; Caroline Jones and Hazel Biggs,
Southampton Law School, University of Southampton This paper is drawn from the preparation for
and reflection on a workshop held by the Health Ethics and Law research centre of the University of
Southampton in May 2011. We are grateful for the funding generously provided by the Modern Law
Review for this key event, and especially to the workshop participants for their contributions to our
1 For the purposes of this paper, we use the term ‘medical law’ as a convenient label to encompass
the subset of health care law that is usually understood to be concerned with issues of ethical rather
than political or organisational significance. Health care law is more concerned with the relation-
ship between citizens and the organisations that provide health services. For discussion of these
ways of subdividing the law, see J. Montgomery, Health Care Law (Oxford: OUP, 2nd ed, 2003)
1–2; T. Hervey and J. McHale, ‘Law, Health and the European Union’ (2005) 25 LS 228.
© 2014 The Authors. The Modern Law Review © 2014 The Modern Law Review Limited. (2014) 77(3) MLR 343–378
Published by John Wiley & Sons Ltd, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA
whether there are reasons to think the context in which we have examined them
is unusual.
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,
1977) 81.
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
it. The operation then is plainly injurious to the public interest. It is degrading to the
man himself. It is injurious to his wife and to any woman whom he may marry, to
say nothing of the way it opens to licentiousness; and, unlike contraceptives, it allows
no room for a change of mind on either side. It is illegal, even though the man
consents to it.6
The way in which this legal change was brought about included a range of social,
ethical and legal activities. The fact that the contemporary acceptability of
eugenic concerns was thought to legitimise some non-therapeutic sterilisations
assisted the consideration of other social reasons for performing sterilisations. The
British Medical Association and the Medical Defence Union (MDU) obtained
counsels’ opinions on various issues, which gained influence through publication
in medical professional journals and annual reports.7When the advice that
supported the legality of the procedure went unchallenged, it was suggested that
this gave it the status of an established view.8This was reinforced by debate in the
Lancet,British Medical Journal, and the lay press.9
Lewis notes Ian Kennedy’s description of this process as ‘one of the wonderful
examples of the fudge-and-nudge development of English law. There was no
town crier. It was not really written up in the books. The whole legal attitude
towards sterilization simply had changed.’10 However, as she shows, this does not
mean that the process was accidental. A substantial campaign was undertaken by
a non-government organisation, the Simon Population Trust, to achieve its
desired outcome. Also, significantly, the issue was deliberately kept away from
formal legal processes because it was thought that a test case might lead to an
adverse decision.11 The possibility of influencing the law in this way raises very
significant concerns about the constitutional legitimacy of informal law-making
that has received insufficient attention.
This paper uses examples from medical law to explore the complexities of
contemporary law-making and seeks to refine the issues that need to be resolved
in order to explain the constitutionality of the process. The broadly Austinian,
positivist assumptions on which the judges rely when they explain their role
break down on at least two counts. First, the complexity of the processes by
which legal norms are established. This requires careful consideration of the
nature and identity of the ‘sovereign’ legislator who is assumed by Austin’s
account of the separation of powers. Second, a much richer understanding is
needed of the various forces at play in ‘test case’ litigation in which judicial
decisions come to establish legal principles rather than merely apply them. These
are not limited to the choices made by judges in adjudicating on ambiguities in
the law. The framing of their choices is a crucial element in their decision and
6Bravery vBravery [1954] 1 WLR 1169, 1180.
7 Lewis notes this being done in 1925, 1939, 1949, 1960; see especially n 5 above, 305–306.
8 Lewis particularly notes this assertion by Philip H. Addison (secretary of the MDU) in ‘Voluntary
Sterilization in the Male’ [1968] 2 BMJ 702 (15 June 1968).
9 Lewis, n 5 above, 310–311.
10 I. Kennedy, ‘Emerging Problems of Medicine, Technology, and the Law’ in I. Kennedy, Treat Me
Right: Essays in Medical Law and Ethics (Oxford: OUP, 1988) 10–11.
11 Lewis, n 5 above, 315–316.
Jonathan Montgomery, Caroline Jones and Hazel Biggs
© 2014 The Authors. The Modern Law Review © 2014 The Modern Law Review Limited. 345(2014) 77(3) MLR 343–378

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