Medical law and the power of life and death

Abstract

The purpose of this article is to offer an analysis of the nature of contemporary legal power over the ending of human life in medical contexts. Drawing on Michel Foucault’s characterisations of power relations in the sphere of life and death in The History of Sexuality, Vol. I, it is argued that, in its current regulation of the ending of human life in this area, law displays elements of two of those modes, or forms, of power identified by Foucault – the juridical and the disciplinary. This argument is illustrated by reference to two recent cases – Re A (Children) and Re B (an adult: refusal of medical treatment) – and set against a background of shifting modes of governmentality (here, the movement from medicalisation to legalisation). Through an analysis of the forms of legal power in this particular context, the article also has a broader purpose – to advance an alternative approach to the question of power within the academic medical law field. Specifically, unlike the standard form of legal academic inquiry in this area – that is, one which is driven mainly by a concern for ethics and resolving ethical dilemmas – it is suggested that an appreciation of the importance that institutional context(s) and requirements play in medical law is necessary if we are to understand fully both the factors constitutive of legal power and the subtle, and often controversial, effects that flow from the manner in which it is exercised and asserted.