Chapter 8 places women centre stage illustrating how belief that women were weak and dangerous united medical practitioners and law makers. Medicine, in the sense of theories of the body and sickness, was deployed to make law and justify exclusion of women from public life. One group of women escaped exclusion and the often-forgotten story of ecclesiastical licensing of midwives in the sixteenth and seventeenth centuries is evaluated, highlighting the public duties of the midwife as a guardian of morals as well as the healer caring for birthing women. The sudden demise of ecclesiastical regulation and the take-over of childbirth by the ‘medical men’ is assessed. The imagery of women as both weak and dangerous is shown to buttress the many legal incapacities imposed on women by the common law. Similarly, bizarre theories about reproduction also influenced English law. The chapter demonstrates the high value placed on bloodlines and lineage, what would today be described as genetic identity. It explores the impact of ‘scientific’ (mis)understandings of reproduction in late medieval and early modern England on the development of the law and in particular male primogeniture. The close links between questions of property and reproduction will be analysed and entrenched antipathy to single motherhood examined. The historical themes of emphasis on genetic relatedness, wariness of certain kinds of parenthood and questions of access to regulation of reproduction will be shown to be instructive to modern debates on reproductive medicine and the law.

This chapter provides a critique of the “governmentalisation of global human rights governance”. It argues that the phenomenon causes international law to have unpredictable effects for individuals; that it removes the conditions of international law from the realm of politics properly understood; and that it brings about a mode of rule which sees concern with the individual as an end in him- or herself replaced with an understanding that the individual is simply part of an abstract whole, which is the true field of action. The result is that human rights are set in opposition to the way in which freedom was conceptualised by both Oakeshott and Foucault - the necessary conditions within which self-enactment can take place, and hence the necessary conditions of a moral or ethical life. On the one hand this produces a kind of benevolent coercion - a pastoral power which is pervasive and potent for all that it is kind. But on the other it produces a distaste for the human rights movement in the very rights-holders themselves, setting them at odds with its aims and tactics, and resulting in a counter-conduct of basic refusal.

Chapter 4 focuses on the road to the Medical Act 1858 which began the process of unification of the professions. It will be shown how the Act fell short of uniting the different orders of medical practitioners into a single medical profession. What the Act achieved by establishing the Medical Register was a means to identify practitioners recognised by the State as qualified to practise and entitled to be entered onto the register. The chapter reviews some of the many conflicting proposals for medical reform advanced by different groups. The first outcome of campaigns for reform, the Apothecaries Act 1815, is seen to be a damp squib. Sixteen Bills presented to Parliament from 1830 to 1858 failed. Noting that the only matter on which the orthodox agreed remained their abomination of unqualified healers all of whom the orthodox labelled as quacks, the chapter goes on to explore the use of the courts and prosecutions for manslaughter in attempts to scare unlicensed healers out of business. It is shown that the judges rejected pleas to privilege the licensed practitioner. Finally, the Medical Act 1858 and its lukewarm reception is assessed. The omission of measures to criminalise all unlicensed healers is explained. The Act marked a gradual move towards a partial merger of the orthodox professions making it easier for the courts to identify ‘responsible medical opinion’. Medicine can be seen to be a profession acquiring a stronger voice in debates about laws relating to matters such as abortion and anatomy.

Chapter 5 looks at medical litigation. Clinical negligence litigation often gives rise to acrimony between lawyers and doctors. Doctors regularly predict a ‘malpractice crisis’. Patients complain that the systems for redressing harm caused by medical negligence are inadequate. Chapter 5 shows that these concerns are not new. As J B Post noted, the ‘medieval medical practitioner, like his fellows of every age, was vulnerable to accusations of negligence’. The fundamental principles relating to liability for medical negligence are seen to have deep roots. By way of illustration, a number of cases stretching back to 1329 are examined. It will be seen that at least before the end of the nineteenth century there is little evidence of judicial deference to medical opinion. The surgeon treating human patients was treated no differently to the farrier (horse doctor). Such expert evidence from medical practitioners as was available was accorded no special consideration, as was to be the case in the Bolam era. Chapter 5 explores the impact of developments in ‘scientific’ medicine, contemporaneous developments in the general law relating to expert testimony and the influence of the Medical Act 1858.

Chapter 7 examines the attitude of the common law and canon law to the living body. It asks how far your body was truly yours to do as you chose with. The answer proved to be – ‘not wholly yours’. Were you a married woman, the several legal incapacities imposed on married women effectively granted sovereignty over your body to your husband. While the courts developed trespass against the person to affirm patients’ rights to say no to their doctor, common and canon law placed limits on what any individual could choose to do or have done to their body. The law set its face against any notion that men or women owned their bodies prohibiting many but not all forms of self-mutilation. The antique crime of maim which limited what any subject of the Crown could have done, or do, to their bodies is considered. And it will be shown that even if maim is obsolete its ghost lives on. Re-attired as ‘public interest’, the House of Lords in R v Brown held that the victim’s consent alone was insufficient to render infliction of actual bodily harm lawful. Harm must be justified in the public interest. In nearly all cases surgery, be it performed in 1500 or 2023, involves harm above the bar set in Brown. But it will be shown that the legality of reasonable surgery was tacitly acknowledged. The gradual recognition of the ‘medical exception’ justifying responsible medical treatment is addressed.

Chapter 2 addresses the presence of a third party in the marriage of law and healing, the Church, exploring the relationship between three key actors in the formulation of law relating to healing, the Church, Parliament and medical practitioners. The chapter outlines how, before the Reformation, the Church in Rome enacted rules in canon law regulating healers. It identifies the enduring influence of canon law on the organisation and regulation of medical practice. The prohibition on practising surgery imposed on most clerics by the Lateran Council 1215 is discussed as a prime example of such influence, driving surgery out of the monasteries and contributing to the development of the tripartite division of physicians, surgeons and apothecaries. The role of the Church as the principal provider of healing free of charge in the monastic hospitals is analysed. As more laymen began to practise, and the monastic hospitals declined, pressure to reform regulation grew. An attempt to establish a nationwide system enforced by the King’s officers, the Sheriffs, failed in the chaos following the death of Henry V. In 1511 the Crown intervened to create a national system to regulate physic and surgery endorsed by Parliament in the Act ‘for the Appointment of Physicians and Surgeons’. The Church did not disappear from engagement with healing – it became a regulator. The 1511 Act entrusted implementation of the licensing process to the bishops.

This chapter describes a series of regulatory “tactics” for the conducting of conduct with respect to improving human rights performance, and maps the contours of what it calls the “governmentalisation of global human rights governance”. It draws on the work of Miller and Rose to describe this as a phenomenon of “governing human rights at a distance”. It demonstrates that this consists of three broad and overlapping categories of tactics: auditing and other methods borrowed from financial management and accounting; the pluralisation and atomisation of governing functions; and the specification of new subjectivities. Taken together, these result in the creation of a regulatory sphere in which actors are continually enjoined to monitor themselves and others in light of human rights obligations or “responsibilities”; in which the governing of human rights is dispersed between public authorities, NGOs and other civil society actors, businesses and international organisations; and in which this entire range of actors, and even human individuals themselves, are re-conceived as being “human rights governors” in their own right.

The chapter concludes that the notion that negative and positive obligations can be reconciled, or even are mutually supportive, is misguided. It argues instead that the two are antagonistic, and that the solution will only ever be an unsatisfactory and messy compromise. If this compromise resolves too much in favour of a view of rights which sees them as declaring conditions to be realised on the road to universal human welfare, then this will ultimately work to undermine individual agency. This will more than likely have the unintended consequence of making people less, rather than more, enthusiastic about the human rights movement.