This chapter follows the period after the Conservative Party’s General Election defeat in October 1964, during which the Party embarked on a period of reflection and in-depth policy formulation. The chapter argues that Conservative politicians believed that the strike problem could be resolved by a novel legal framework because rank-and-file trade unionists would fall in line due to an inherent respect for the rule of law. The chapter identifies internal dilemmas and the emergence of numerous contradictions within the burgeoning strategy as the architects of reform worked to overcome the Conservative Party’s anti-union image and simultaneously impose discipline on British industry. Through a detailed reading of the archival record, the chapter traces the debates surrounding the Party’s controversial policy document Fair Deal at Work. It demonstrates how Conservative politicians sought to reframe trade union immunities as ‘privileges’ before detailing how senior figures expected that trade union deference to the law would have a powerful disciplinary effect. More significantly, it shows how politicians hoped trade union leaders would eventually become allies in forging a ‘new’ modern capitalist economy free from the strike problem. This element of reform was intended to underpin the broader legitimation of the Act. This period, the chapter argues, is the source of many of the Act’s contradictions, long before the Conservative Party returned to office.

This chapter argues that Hague Conventions V and XIII do not regulate cyber-espionage, and underlines that States did little to define further regulation in the field. First, both conventions contain rules pertaining to material operations which are irrelevant to cyber-espionage: Articles 1, 2, 3, 4 and 5 of the Hague Convention V and Articles 1, 2 and 8 of the Hague Convention XIII. Yet – and at least for the moment – this chapter argues that States only consider that belligerents are prevented from inflicting damage to a neutral State and from erecting ICT infrastructures on neutral territories or neutral waters. In addition, they consider that the mere transiting of cyber-operations through the infrastructure of a neutral State is not contrary to international law. Second, the Hague Convention V contains rules pertaining to the use of telecommunications. This chapter argues that belligerents are prevented from launching cyber-operations through these means. In parallel, a neutral State is not obliged to forbid or restrict the use on behalf of the belligerents of telecommunications infrastructure belonging to it or to companies or private individuals. If restrictions are decided, they must be impartially applied to both belligerents. In this situation, this chapter argues that cyber-espionage activities may be indirectly affected, but without resulting in a general prohibition.

Following embarrassing and poorly handled industrial unrest throughout the summer of 1972, the future of the Industrial Relations Act was unclear. Orthodox accounts argue that the reform agenda was effectively abandoned and became little more than a bargaining chip in tripartite discussions to decide the future of the economy. This chapter corroborates these accounts, suggesting that the Act was effectively ‘put on ice’ even though, as the archival record confirms, politically it was impossible to denounce the strategy. Nevertheless, the chapter presents a sizeable body of new evidence to argue that a longer-term commitment to a ‘depoliticised’ approach to reform still underpinned the government’s strategy, despite being undermined by increasingly interventionist steps in counter-inflation policy. The Act continued to operate in the background, albeit never as intended and with few widely publicised successes. The chapter covers the negotiations surrounding a return to a formal incomes policy as inflation spiralled, to explore how depoliticising and politicising currents became increasingly intertwined and contradictory. In the absence of a meaningful strategy, the government began to muddle through, playing for time as ‘tactical procrastination’ took hold.

This chapter unites the work of Oakeshott and Foucault on the nature of the relationship between teleocratic law and governance. It argues that what Foucault labelled “governmentality” is chiefly the result of purposive social action. In the modern State such social action tends to take place within the complex of law, discipline and security, producing a regulatory or managerial approach which derives from law but achieves its purposes through what Foucault called “tactics” rather than laws. That is, while law is able to declare purposes and also specify intermediary objectives on the way to achieving those ends, it is unable in itself to realise them: it cannot in itself affect change at the desired level of the population. Instead, it must give rise to more indirect means for manipulating conditions within the population so as to “conduct conduct” more subtly. While, in other words, law becomes oriented to teleocracy, it retains elements of nomos which prevent it from bringing about social change on its own. Governmentality is understood therefore as the means of circumventing this problem. The chapter ends by arguing that just as the State was “governmentalised” by imagining the State as having the purposive of improving well-being - declared in law but achieved through regulatory “tactics” - so a sphere of global human rights governance is now being “governmentalised” by imagining the international community as having the purpose of improving well-being universally. Here, human rights law declares the relevant ends, and gives rise to the deployment of regulatory “tactics” for achieving them.

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.