John Harrington: Towards a Rhetoric of Medical Law

AuthorBob Jessop
DOIhttp://doi.org/10.1111/jols.12068
Publication Date01 December 2017
Date01 December 2017
TOWARDS A RHETORIC OF MEDICAL LAW by JOHN HARRINGTON
(Abingdon: Routledge, 2017, 200 pp., £110.00)
In this ambitious and innovative book, John Harrington, Professor of Global
Health Law at Cardiff Law School, aims to develop an original approach to
medical law by combining a rhetorical turn with a broadly systems-
theoretical account of the place of law in modern Britain. This is a big
agenda to pursue within the confines of a single monograph that also offers
many persuasive case studies. The author offers a systematic and convincing
critique of the dominant approach to medical law that subordinates it
normatively and conceptually to medical ethics or bioethics, highlighting the
contradictions and limits of ethics in either guise as a means of imposing
reason and consistency into this field of law. Indeed, he argues that law is
marked by paradoxes, contradictions, indeterminacy, and contingency that
must all be managed if law is to function as a stable source of legal decision
making (oriented to the distinction `lawful-unlawful') and thereby provide
orientation to practices whose primary purpose is extra-legal (for example,
medicine) but has contingently necessary legal dimensions. Building on the
indeterminacy of law and, a fortiori, the contingency of legal argumentation,
Harrington asserts the importance of the art of rhetoric and the role of
rhetorical practices in shaping its contingent development. The rhetorical
turn ± or, better, rhetorical return since it revives the ancient Greek and
Roman traditions of rhetoric after a period of neglect ± is one form of the
cultural turn and can be located within the broader current of the discursive
turn. It is a key resource in analysing the substance and significance of legal
argumentation and shows how medical law uses rhetoric to make its
transformative appeals.
The author illustrates this analysis from a series of cases in the fields of
medical law that explore the role of rhetoric in maintaining, modifying, or
radically transforming medical law. In this context, ethics becomes a
pluralistic and fluid source of rhetorical appeals rather than a monologic and
timeless set of principles, and is just one of several types of rhetorical
argument that can be deployed in the field of medical law. The judicial and
academic reasoning that is variously deployed in legislation, litigation, and
adjudication draws on various modes of rhetorical appeal (notably logos,
pathos, and ethos) and specific rhetorical strategies that must be fashioned to
appeal to concrete audiences within specific historical, cultural, and political
contexts. In this sense, rhetoric involves strategic interventions into the legal
field that seek to persuade relevant actors and wider audiences by appeal to
more or less concrete and localized common sense and cultural forms as well
as formal and stylistic devices. Their aim is to persuade these actors and
audiences about the need to change (or maintain) the law regarding more
general or more specific legally framed issues or, one might add, to establish
that some issues are not appropriately determined or decided through resort
to the legal system. A key element in this analysis is that rhetoric has broad
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ß2017 The Author. Journal of Law and Society ß2017 Cardiff University Law School

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