Progress

Professional judgement has been central to the determination of rights and obligations in many areas of medical law, such as access to abortion and contraceptive treatment, the level of disclosure prior to treatment and the standard of care in negligence.1 It has functioned as a place or ‘black box’ to which the indeterminacy of legal decision making can be displaced. The effectiveness of this deparadoxification strategy depends on its persuasiveness within wider legal and political contexts. Given the ecological dominance of the economy in a capitalist society, as discussed in Chapter 1, a rhetorical analysis needs to take account of the influence of concrete institutional and economic arrangements upon the substance of medical law argumentation. In previous chapters, I pursued this broadly materialist approach, examining the key role played by the national and utopian dimensions of the NHS in the development of legal doctrine. A materialist perspective also needs to take medical practice seriously as a form of labour. This is not to claim that professional work is the ‘real’ base which determines the cultural superstructure of medical law. What I am concerned with here, rather, are the terms in which medicine has been represented as a form of work and the manner in which they have helped to sustain the plausibility of law’s deference to clinical judgment. Indeed, as we saw in Chapter 5, the utopian vision underpinning the NHS involved sheltering medical practice from market forces and other external direction. This vision was framed negatively, however, in terms of what medicine is not. In this chapter and the next I want to extend that analysis by considering the positive framing of clinical work as both ‘science’ and ‘art’. These involved respectively the understanding that medicine as a whole exhibits the features of a progressive science and that clinical work involves the exercise of fine judgement. Of course these key topics of medical law are not wholly consistent. They have supported judicial deference like the ‘legs of a table’ or the strands of a rope rather than as part of any coherent ideological system. I hope to show each gained rhetorical

force from its affinities with traditional conceptions of the common law and its resonance with enduring national stories and self-images. The present chapter investigates the dimensions and plausibility of the topic of medicine as a science. It will first provide some evidence of the importance of the idea of scientific progress to doctors’ collective selfperceptions since the early nineteenth 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 scientific medicine evolving through a competitive pluralism of ideas reson ates 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 revolutions: an opaque world which neither reflects nor validates liberal ideals. This darker vision is reflected in critiques of medical work by both radical sociologists and consumer-oriented legal scholars.