Fifteen Eighty Four

This blog is the first in a series of five posts responding to the festschrift published in 2021 by my dear colleagues and friends Edward Dove and Niamh Nic Shuibhne and entitled Law and Legacy in Medical Jurisprudence: Essays in Honour of Graeme Laurie (CUP, 2021). I am incredibly humbled by this act of scholarly generosity and I will be forever grateful to all who were involved.

The unifying theme that connects the blogposts is the concept of legacy – what does it mean to leave a legacy in academia? Is legacy necessarily and always a positive lasting mark? Is a concern with legacy merely a hubristic preoccupation with intellectual ego or does legacy connect us as members of a particular community over time?

Even to embark on this endeavour of responding to the festschrift feels like a gross act of hubris itself, but my colleagues have encouraged me to write this series and I do believe that legacy matters. I also want to honour their contributions, so here goes…

This first post is about teaching in the field of medical jurisprudence, as it has long been known in my home institution, the University of Edinburgh. For anyone remotely familiar with the history of medical jurisprudence in that institution they will know that our intellectual grandfather, J Kenyon Mason, was in no doubt that teaching is the most important part of academia. A major component of his own intellectual legacy is the textbook, Law and Medical Ethics, that he first published with Alexander McCall Smith in 1983 and which will soon be published in its 12^th edition under the co-authorship of my Edinburgh colleagues Anne-Maree Farrell and Edward Dove, with contributions from many other members of the current team. I was fortunate to be a co-author from the 5^th edition through to the 11^th, working closely with Ken and others on the never-ending tasking of trying to keep abreast of law and medical ethics and to communicate its essentials to an ever-expanding audience of undergraduates, postgraduates, legal and healthcare professionals, and colleagues in other academic disciplines whose work overlaps with ours.

This task, and the challenge that it represents, sits at the very heart of our field. Indeed, it calls into question the quintessence of what we are trying to teach: is it law and medical ethics? Is it medical law and ethics? Is it health law or healthcare law and applied ethics? The debate is endless, but it is far from pointless. As our esteemed colleague Richard Ashcroft has pointed out, ‘nomenclature matters’:

“Are we looking at ‘law and medical ethics’ or ‘medical law and ethics’ or ‘medical law’ or ‘health-care law’ or ‘health law’ or ‘medical jurisprudence’? While to a great extent these pick out significant areas of overlap, the differences matter. For are we primarily concerned with what medical practitioners do, and how this is supervised and regulated by the law? Or are we mainly concerned with the legal framework within which professional self-governance through ‘professional ethics’ operates? Perhaps we are most concerned with how the law is used to protect and promote health, or with the legal framework of the public delivery of health services.”

The University of Edinburgh has long embraced the term ‘medical jurisprudence’ and I was privileged to be the first holder of the Chair of Medical Jurisprudence in the School of Law in this millennium; notably, and importantly for present purposes, an earlier Chair of the same name had existed since 1807, first in the Faculty of Law and then in the Faculty of Medicine before falling into abeyance until its return to Law in 2005. I think this beautifully captures the necessarily fluid nature of the field in which we work, but it brings us no closer to informed reflection on what we do, or why we do it, nor how best we should teach our students.

In the festschrift, Ashcroft helps us to address these questions by focussing on the importance of the textbook in academia, both generally and specifically for the critical role it plays in defining academic fields. Ashcroft argues convincingly that textbooks assemble and organise material into legacy, handing down knowledge between generations of scholars and students while also having a crucial shaping force in helping to determine what is important in a field. This, of course, brings its own dangers with respect to subject matter that is de-prioritised, marginalised, or simply excluded. Law and Medical Ethics has evolved considerably since its 1^st edition in 1983 when a strong common law focus dominated the approach and ethics was often called upon only when law was silent. In those days, the field was seen to be parasitic on other ‘established’ areas of law, such as family law and criminal law. This is no longer true, nor can ethics ever be considered an afterthought. However, this is an evolutionary process that can never stop if the role of the textbook in the field is to continue to drive the highest quality of teaching. We must constantly ask ourselves: which voices need to be heard on any given topic and which voices are dominating or being excluded?

For my part, although our textbook is called Law and Medical Ethics and our Edinburgh degrees are styled as medical law and ethics, ‘medical jurisprudence’ as a moniker provides us with the most scope for interpretative flexibility and inclusivity in what we want – and need – to do in our teaching. It goes beyond law, medical ethics, medicine, and biomedicine and, as Ashcroft also suggests, it opens the way for an approach to law as it interacts with other fields and disciplines. It is determinedly and inexhaustibly open-ended in this regard, now encompassing nursing, pharmacy, social care, housing, environment and beyond – all as they impact on human health and well-being.

My Edinburgh colleagues, Sharon Cowan, Emily Postan and Nayha Sethi did me the honour of exploring our collective approach to teaching and research in their chapter entitled ‘Doing Medical Law and Ethics’: Putting Interdisciplinarity to Work. The core argument is that interdisciplinarity is central to what we do, lest we do our work sub-optimally and without realising its full potential or value. This does not belie the considerable challenges of actually doing interdisciplinarity well, but it does focus on approach and orients us – in both research teaching – towards “…critical engagement with other disciplines such as sociology, philosophy, political theory, policy studies, health sciences and anthropology as well as critical perspectives such as feminism and critical race theory.”

Cowan, Postan and Sethi emphasise how teaching must necessarily be research-led. It is not simply about ‘…excavating the development of the law or to interrogate legal decision-making’. Rather, it is to encourage, support and develop critical thinking and assessment in ways that are determinedly normative – “…to explore how ethical and other normative frameworks can inform the governance and practice of medicine and biomedicine where the law does not, or cannot reach…”. This is a majestic way of communicating our task to our students and to generations of future scholars.

My colleagues explore various aspects of ‘doing interdisciplinarity’ – and I highly recommend the chapter as a lesson in itself about this kind of work. Their contribution made me reflect more deeply on my own experiences and it made me realise, first and foremost, that a commitment to an interdisciplinary approach helps us to get to the root of the (research) problem – i.e. to understand better what is actually at stake, even when the interdisciplinarity almost invariably adds to complexity. But then, I am reminded of the quote often attributed to Einstein: “[t]he definition of genius is taking the complex and making it simple.” Oh, that we all strive to be academic ‘genuises’! But the teaching equivalent of this is found in the paraphrase: “…if you cannot explain something simply, you do not understand it yourself”.

Doing interdisciplinarity well and translating this to the discipline-defining textbook are the core aspirations that we owe to our students who will continue the legacy of our field.