Chapter 3 addresses the tripartite division of labour and the regulation of physicians, surgeons and apothecaries, from c. 1511–1858. It focuses on the battles between the three groups of orthodox practitioners, battles often fought out in the law courts. The Crown, Parliament and the courts were all involved in addressing the claims of the medical corporations to regulate their own members, and in the case of the College of Physicians to regulate the whole domain of medicine. The extensive powers of self-regulation granted to the College are considered, as is the anomaly that the College’s writ ran only in London and its environs. It highlights the role of the criminal process regulating healers and examines the series of challenges to the ‘mighty’ College. The chapter addresses the physicians’ unsuccessful efforts to enhance their social status, to be regarded as gentlemen, the equal of lawyers and the clergymen. Nor for the most part did the judges accord deference to the medical men. Sir Edward Coke declared that any university-educated judge could determine if a medical case had been handled correctly. The chapter charts the skirmishes between physicians, surgeons and apothecaries evaluating the impact of dramatic conflict between physicians and apothecaries in Rose v College of Physicians heard in 1703. Finally, Chapter 3 outlines how in the light of developments in surgery the tripartite division made no sense, regulation in the provinces had more or less broken down entirely and pressure for reform grew.

Chapter 1 explains why we should bother, setting out the case for the importance of medico-legal history. It challenges assumptions that medical law is new, and that, when law did engage with medicine, judges showed blind deference to the ‘medical man’. The chapter argues that, to the contrary, medical law has a rich history stretching back several centuries. The law courts, the Crown and Parliament were all regularly engaged with medicine. Setting the scene for the following chapters, Chapter 1 sketches out the organisation of health care from circa the sixteenth to the start of the twentieth centuries. It demonstrates that demand for health care has always been high. Our ancestors were as anxious about their health as we are and had access to a range of diverse healers. Doctors look very different following the tripartite division of medicine common in Continental Europe and divided into the three orders of physicians, surgeons and apothecaries, referred to in this work as orthodox practitioners. Each of the orthodox had its own medical corporation and the three orthodox groups were often at odds resorting to the courts to fight their internecine battles. The only matter on which the orthodox agreed was their loathing of the many traditional healers and again the law courts were the fora where the dispute was played out. The impact of the Medical Act 1858 and the contemporaneous development of biomedical science based on laboratory investigation, rigorous testing and assessment of results are noted.

This chapter describes the modern field of international human rights practice. It portrays it, borrowing from Koskenniemi, as managerial - a solipsistic and imperialistic regime which seeks to expand into every corner of human life with the aim of realising an overarching purpose. The chapter explains the most significant legal developments making this possible, from teleological interpretation of treaty texts, to the expansion of positive obligations through the ‘respect, protect, fulfil’ framework, to the imposition of duties on non-State actors. It shows that the result is an ever-increasing range of obligations being imposed upon an ever-widening scope of actors, and a preoccupation with how to achieve compliance and hence implement the overarching purpose of the regime.

Chapter 9 addresses English law and the fetus. While the history of abortion law has attracted more attention from modern medical lawyers than virtually any other topic in medico-legal history, that history itself is as bitterly disputed as the fundamental questions it addresses. Fetal status is not only pertinent to abortion law, and the chapter considers the protection afforded to the not yet born child by the right of a pregnant woman to ’plead her belly’ and the right of a child in utero at the time of their father’s death to the same rights of succession as their born siblings. The first statute criminalising abortion was passed in 1803 (Lord Ellenborough’s Act). After assessing available case law and the writings of English jurists, the chapter establishes that contrary to the claims made by US historian Cyril Means, abortion was a common law crime, albeit one with uncertain boundaries. The series of Acts of Parliament passed from 1803 to 1861 is evaluated and the increasingly draconian approach to abortion assessed. The central theme of this chapter is the role played by medicine in the evolution of the law. Medical practitioners are seen to be close to invisible in the common law era. By 1861 they had become a powerful lobby for stringent legislation and seized control of access to abortion. Moreover, medical practitioners such as Thomas Percival advanced opinions about morality as much as medicine. Doctors it seemed were considered to know best.

The introduction describes a paradox which is at the heart of the human rights movement, which is Trilling’s observation that attempts to improve conditions for others will frequently result in their coercion. It lays out the central argument of the book, which is that despite an apparent rhetorical commitment to individual empowerment and a preoccupation with rights’ supposed individualism among critics and advocates alike, rights in their modern form are better understood as a set of declaratory justifications for requiring States and other power actors to improve moral and material conditions for populations and sub-groups within them. This means that rights are hardly to be characterised as being associated with neoliberalism; they are better understood as having a structural bias towards a ‘power of care’ which attempts to specify the conditions of a good life and to deploy political and economic power in order to achieve them. The result is a managerial system which pays little if any attention to the individual and which frequently acts in opposition to individual agency.

This chapter provides a summary of Oakeshott’s thinking with respect to law and the State. It observes that the crucial element in this is the ambiguity of both phenomena. Law is sometimes conceived as general conditions of just or moral conduct, and sometimes as a “rule-book” for achieving particular purposes; and the State is sometimes conceived as a purposeless relationship between autonomous cives related only in their shared acknowledgement of a system of neutral laws, and sometimes as a purposive association for the achievement of nebulous goals such as the “common good”. The chapter then considers international law and international association in the same terms, particularly with respect to human rights, and notes that international law and international community are likewise ambivalent concepts vacillating between opposing poles roughly similar to those appearing in the context of the State. It suggests in particular that international human rights law is situated between two opposing ideals, as the conditions of just conduct on the part of States (nomocracy), or as a set of rules specifying ends and the means of achieving them (teleocracy), and that it will orient itself in one direction or another under the influence of both circumstance and prevailing ideas.

Chapter 10 considers aspects of English law relating to the human corpse. The need for bodies and their parts long precedes the advent of organ transplants. Human dissection was crucial to understanding the human body and thus developing medicine. The first part of the chapter charts measures to meet the gap between supply and demand, including bodysnatching, robbing the grave of recently deceased persons and selling the corpse to the surgeons. The inadequacy of the law and the shaky authority of the so-called ‘no property in a corpse rule’ is exposed. The second part focuses on the introduction of legislation expressly designed to regulate anatomy, the Anatomy Act 1832 which triggered riots and the burning of an anatomy school. The process of law-making which culminated in the 1832 Act is shown to mark a radically increased respect on the part of legislators to biomedical science, in sharp difference to the more sceptical approach of the judges. And as with abortion laws, medical practitioners acquired a strong voice in debates on the law, a voice not limited to the science, but also addressing the moral and social issues.

This chapter argues that international human rights law has come to orient itself towards teleocracy under the influence of what, borrowing from the French constitutional theorist Maurice Hauriou, it calls a “directing idea”. This directing idea is that human rights are the legal mechanism for achieving the overriding objective of improving universal well-being, and that this is to be brought about by assigning obligations to the powerful in order to make them act benevolently towards the powerless. The chapter locates this in a broader trend among international lawyers, which understands international law itself as, ultimately, a project of improving universal human welfare. The chapter then demonstrates that this directing idea is rooted in compassion, the hatred of looking on while others suffer, which imbues the human rights movement with a species of what Kundera described as “kitsch”. This causes human rights advocates to seek to give effect to their shared sense of compassion through law, which has the capacity to give effect to this feeling across time.

Chapter 6 explores the influence of Christianity in shaping secular laws relating to moral dilemmas in medicine dilemmas, which might now be described as bioethical questions. What is perceived to be the persistent influence of Christian theology in shaping the law on matters of life and death is decried in a country where fewer and fewer people practise that faith. The common law has long addressed debates about the nature of human life, beginning and ending human lives. The chapter will contend that while Christian tradition undoubtedly played a part in forming English law relating to the protection and value of human life, religion was only one factor, and maybe not the principal factor, in the formation of legal principles applicable to the value of life. The common law is seen to display a strong theme of pragmatism and a focus on the maintenance of the King’s Peace. The chapter addresses euthanasia, suicide and what makes an entity legally human.