Ceaselessly into the (Medical and Legal) Past^*

This volume forms part of an ongoing series by the same press dedicated to contemporary issues in bioethics, law and medical humanities. The series is already home to a number of edited volumes bringing together a wide range of scholars within these fields to consider fundamental matters within its ambit. This impressive monograph adds ably to the series as a whole and stands on its own as a welcome addition to the literature in the field of medical law and the medical humanities.

Of the project, the focus lies on the English law and the author’s goal is to both reinvigorate the study of and remind us of the value of historical analysis in the field of medical law. It is explicitly neither a history of »medical law« nor a medico-legal history (xiv), rather it gathers a collection of case studies across the broad span of contexts in which law and medicine have necessarily been intertwined. Each is a gem of careful legal historical analysis on its own; the sum total is an impressive and impactful project that ably achieves the author’s aims.

Of the author herself, who passed away earlier this year, what can be said? She was a medical lawyer par excellence and someone without whom the national field within the UK would, simply, not have reached the stage of development and sophistication that it currently possesses. It is no surprise that a major prize for legal writing in the UK is named in her honour, and for those in need of‍‍‍ insights into contemporary medical law, the author’s classic textbook stands apart in a crowded field. That she, in this volume, turned to what she saw as a necessary endeavour to help ground and explain the challenges of the modern law is both a vindication of the value of legal history generally (particularly so in medico-legal matters) and a testament to the breadth and depth of her own scholarly abilities. This is a must-read for anyone interested in the specifics addressed or the broader discipline of medico-legal history.

Over a brisk 245 pages the volume comprises ten substantive chapters, topped and tailed by the customary apparatus. The first chapter turns explicitly to the justification for the broader work, and here Brazier sets out her thesis by pointedly asking, »Medico-legal history: why bother?« (1). The answer is instructive, a desire to remind modern legal minds that the substance of medical law has a history, that there is, as she puts it, »an extensive history of a close and complex relationship between law and medicine in England« (3) and one that is not somehow divorced or abstract from modern concerns, rather it is a »substantive« history (2).

From there the breadth of coverage takes the reader on a tour of contexts in which medicine and law interact. Whilst there may be few for whom all‍‍‍ the chapters hold immediate relevance, it is unlikely that anyone working in related fields will not find something to enjoy and enthral across those chapters. Brazier addresses the persons who laid claim to medical knowledge (ch 2) and the emergence and role of professional regulation and | medical liability (chs 3, 4, and 5 respectively): who they were, how they were organised and how the law approached their wrongdoing. She then turns in the second half to what she notes (124) would, to the contemporary mind, be »bioethical questions«. These chapters consider the influence of theological (Christian) scholarship on legal approaches to life itself (ch 6); the regulation of the living body and the rights persons had over their own (ch 7); the context of reproduction, with separate chapters considering this from the perspective of the women involved, whether as subject or subject-matter expert (ch 8), and the unborn child (ch 9); and finally (inevitably) death and the regulation and treatment of the dead (ch 10). The richness of analysis on offer precludes choosing particular aspects to highlight here. The insights are too many, the scholarship too deft to capture in the blunt confines of a review. Readers are encouraged to explore the chapters of greatest relevance to them. But three broader matters stand out for particular comment and emerge from engaging with the work as a whole.

The first is that each of these chapters is a history unto itself, contributing cumulatively to the goal of the volume. There is no fixed span of time across which the topics are considered in lockstep, albeit much of what is covered falls between the 16th and 19th centuries. Rather, if each aims broadly to truncate at modernity, the starting point is determined by the subject at hand. These histories are disjuncted from one another, but serve in doing so to drive home the manifold and plural influences at play across these periods.

The second is that many of the chapters, particularly in the latter half, draw seamlessly on different areas of the law as they relate to the matter at hand, whether civil, criminal, constitutional or, in some cases, canon. It is thus impossible to characterise the volume as being concerned primarily with one legal »subject« in particular. This not only gives the historical narrative rich form but also highlights the shifting relevance of such subjects to a given medical context over time. To continental eyes, the English law may often appear historically messy and Brazier captures well that interplay and effect on later developments.

The third is the deeply human nature of the work. Throughout, Brazier highlights the role of those involved in care and the intellectual frameworks that influenced them as loci and drivers of legal development. The impact of the law on different genders, those of different stations in life, and those various persons charged with their care all stand out. The embeddedness of law in medical matters (or vice-versa) and all this in the lives of those inescapably involved drives home the importance of the context here. This is not a history of law for lawyers or of medicine for medics. It is not merely a tale of legal conceptual development nor of the inevitable subordinance of one discipline to the other. Rather, if it is a history at all (and not a collection of histories), it is a history of the messy and relational manner in which medical practice and legal analysis responded to one another across time and contexts. It is all the stronger for this.

To return to the series in which it has found a home, in what way can the subject be regarded as contemporary? A fair question, but one that the work ably responds to (particularly in that first chapter and the brief postscript, which speaks to the Dobbs decision in the USA and what it tells us of the utility of historical insights here). So much of what is covered here speaks to evergreen themes of the values and tensions within medical law and reminds us of the contexts in which the defaults of the modern English law were settled. In many instances, these are neither misted in the hidden depths of our legal history, nor without a history (9), nor are they solely the preserve of the lawyers of their day or the niceties of legal doctrine. As ever in this broad field, there are contrasts between areas in which something more truly understood as medical law emerges (the later chapters), and areas where the general, abstract shapes and forms of common law doctrines are given substance and normative value by the medical context they are deployed in (the earlier chapters). The volume stands as a stark reminder that even where the legal story is of such generalised rules being put to particular use, the context they are deployed into is itself far from static or abstract. The development of medical analytical frameworks, mores and practices themselves play a crucial role whether in tension or concert with those legal frameworks. As Brazier reminds us with incisive, engaging and crystalline analysis, understanding the shifting influences on both sides of that interplay is crucial for a fulsome grasp of the subject matter. Medical law was not, cannot and must not be made in the abstract.

Whilst the focus of the volume is, naturally, on the English common law, many of the medical themes that play out in these chapters, and which |the law drives or responds to, will be familiar to those in other legal systems, whether within the broader common law world or beyond it. Here, the volume raises an interesting line of thought for future work. Whereas the legal frameworks that the English law calls upon are more obviously constrained by their national borders, this is not necessarily so for medical matters, which may have drawn from a more broadly shared, transnational wellspring. Studying the topic thus permits a case study of the response of different legal traditions in the face of common medical concerns. The work can thus be seen as an English contribution to a field where more and more overtly comparative work would surely be rewarding.

Finally then, to treat with the subtitle, a theme that emerges from the work as a whole is the inevitability of the relationship between law and medicine. The framing adopted by the author, even as gentle jest (5), naturally assumes a willing complicity on the part of both. Marriage is, after all, usually a consensual endeavour. But as many of the chapters suggest, it is the stormy nature of that relationship that characterises the history. As she rightly notes, »Law and medicine were yoked together. Their courtship was not smooth« (5). Given that, one wonders if future (legal) historians turning to consider what present battles have defined the law that they inherit may consider whether there are better metaphors. In a delightful description of the chapters that follow, early on Brazier characterises these individual topics as »stories«. As in all stories, characters are at the mercy of their author and may be flung together. In seeking to draw a moral from these stories, it may be more apt to regard medicine and law as cellmates, star-crossed lovers, or strange bedfellows. Despite respective individual desires to engage on their own terms, each seems fated to navigate the world alongside and fundamentally imprinted by the other. In reflecting on Brazier’s analysis across these well-chosen vignettes, perhaps the most pressing lesson is the need for these disciplines to look on one another with curiosity and consideration as they continue on that journey, and never to forget how the path already trodden has determined the present course.