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 inThe 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 * I would like to thank Sally Sheldon, Jo Bridgeman, Scott Veitch, and the two anonymous referees for their helpful comments on an earlier version of this article. 2are 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. I IntroductionFor a long time, one of the characteristic privileges of sovereign power was the right to decide life and death. (Foucault, 1978: 135) Deciding disputed matters of life and death is surely and pre-eminently a matter for a court of law to judge. (Re A (Children), per Ward LJ) 1 The uptake of Michel Foucault's work on power in the social sciences has mainly been concerned with his notion of bio-power. Whether focussing on the disciplinary or bio-political sub-sets of bio-power, it has been what Foucault said about the power exercised over human life -how to manipulate it, monitor it, and make it more useful to the community -that has caught the attention of many social scientists. 2 While interesting, this concern is far from surprising. As the above quotation implies, Foucault considered the power to make decisions about the existence or destruction of human life an ancient right that no longer reflected the fact that it was life, and not death, around which modern power relations revolved.In this article, I want to resurrect, and focus on, this question of the relationship between power and death. In particular, I seek to assess the usefulness of Foucault's characterisations of power relations -both his notion of the juridical or 'sovereign power' and his idea of bio-power -for thinking through the relationship (2000)), Giorgio Agamben (philosophy/political theory; see Agamben (1998)), and Paul Ra...

Spatial patterns of child mortality in Nanoro HDSS site, Burkina Faso

“…About half of child deaths occurred in sub-Saharan Africa [2]. In 2015, the Sustainable Development Goals (SDGs) were defined, aiming to reduce under-five mortality to below 25 per 1000 live births by 2030 [3]. To achieve these targets, urgent action in sub-Saharan Africa is needed, as well as higher-quality information to guide this action [4].…”