‘Red in Tooth and Claw’: The Idea of Progress in Medicine and the Common Law
| Author | John A. Harrington |
| Published date | 01 June 2002 |
| Date | 01 June 2002 |
| DOI | 10.1177/096466390201100203 |
| Subject Matter | Articles |
‘RED IN TOOTH AND CLAW’:
THE IDEA OF PROGRESS IN
MEDICINE AND THE COMMON
LAW
JOHN A. HARRINGTON
European University Institute, Florence, Italy
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 disci-
plines. 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 further-
more 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 inter-
vention 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.
Surely every medicine is an innovation; and he that will not apply new remedies
must expect new evils; for time is the greatest innovator; and if time of course
alter things to the worse, and wisdom and counsel shall not alter them to the
better, what shall be the end? (Bacon, 1625/1999: 55)
INTRODUCTION
Discussion of medical law is commonly concerned with the effectiveness of
the law in promoting ethical values in the health-care context. This article
seeks to develop a different perspective, one that is informed more by
SOCIAL &LEGAL STUDIES 0964 6639 (200206) 11:2 Copyright © 2002
SAGE Publications, London, Thousand Oaks, CA and New Delhi,
Vol. 11(2), 211–232; 023907
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epistemology than by ethics. It aims to uncover some important similarities
between the way in which law and medicine are taken to be practised. In
short, I maintain that both disciplines are held by their practitioners, and by
their spokespersons, to obey an evolutionary dynamic. On this view, medi-
cine and law embody a widely shared ideal of progress driven by conflict.
In advancing this thesis, the present article will focus on the manner in
which law reconstructs medical practice and subjects it to normative evalu-
ation. In cases of alleged negligence, where witnesses testifying to standard
practice are in conflict, the law generally adopts a benign, if limited, agnos-
ticism as between them. This indulgent stance has been significantly moti-
vated by a recognition of the progressive, scientific nature of modern
medicine and by a more or less explicit acceptance of the public interest in
not hindering its evolutionary development (Montgomery, 1989). The law
on negligence took this form not only, or even chiefly, because of crude
favouritism, but because of what Tim Murphy (1991) has described in
another context as the ‘epistemic undercore’ shared by both practices.
The article is structured as follows. It will first provide some evidence of
the importance of the idea of scientific progress to doctors’ collective self-
perceptions since the early 19th century. Thereafter, an attempt will be made
to reconstruct this idea in terms of Karl Popper’s work on epistemology. The
ideal-typical attributes of the scientific method thus elaborated provide an
interpretative framework for understanding the English case law on medical
malpractice. It will then be shown that the notion of medicine evolving
through a competitive pluralism of ideas resonates with the historical idea of
the common law progressing through dissent and conflict. This overlapping
self-understanding can also be linked with broader ideologies of progress
current in western society since the Enlightenment. These ideologies valorize
liberal political ideals and the institutional arrangements through which they
are realized. Both doctors and lawyers have found it useful to draw upon
these discursive resources in order to achieve and legitimate their professional
status. I conclude by examining a counter-theory of scientific development.
The work of Thomas Kuhn disputes the notion of orderly progress and
identifies instead a secretive and non-cumulative sequence of scientific revo-
lutions: an opaque world that neither reflects nor validates liberal ideals. This
darker vision is reflected in critiques of medical work by both radical soci-
ologists and consumer-oriented legal scholars; and it has of late been mani-
fested in a tentative reorientation of judicial attitudes to medical mishaps.
MEDICINE AS A PROGRESSIVE SCIENCE
According to sociologists, the development of a unified and autonomous
scientific knowledge base has been essential to the professional status of
medicine (Larson, 1977: 23–51). The association of medicine with science has
never been complete or uniform, however. Rival conceptions of medicine
have been advanced to further the strategic ambitions of the profession as a
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