1. Regarding medical law, this principle is evidenced particularly in relation to mental capacity—see especially Re T (Adult: Refusal of Treatment) Fam 95; Re C (Adult: Refusal of Medical Treatment)  1 All ER 819: Re MB (Medical treatment)  2 FLR 426; St George’s Healthcare NHS Trust v. S  3 WLR 936; Ms B v. An NHS Hospital Trust  2 All ER 449; Re Z (Local Authority: Duty)  1 WLR 959; and the Mental Capacity Act 2005—and that relating to provision of information to patients—see especially Chester v. Afshar  1 AC134.
2. On apparently self-regarding and consensual harms see especially R v. Brown  1 AC 212; R v. Cox  Med. L. Rev. 1:2, 232; Pretty v. The DPP  EWHC Admin 788; Pretty v. DPP  1 AC 800; Pretty v. UK (2002) 35 EHRR 1.
3. Perhaps the most notable texts are Mill JS. In: On Liberty. Alexander Edward., editor. Broadview; 1999. ; Hart HLA. Law, Liberty, and Morality. Stanford University Press; Stanford: 1963. ; Berlin I. Four Essays on Liberty. Oxford University Press; Oxford: 1969. ; and Joel Feinberg’s four volumes on The Moral Limits of the Criminal Law. Oxford University Press; Oxford: 1987. 1987, 1988, 1989, and 1990.
4. Thus, eg, John Keown, who has written many moral critiques of the law in favour of the sanctity of life principle, also addresses the question on the terms of those who would refrain from legislating on empirical grounds concerning harms that will be caused: Keown J. Euthanasia, Ethics and Public Policy–An Argument Against Legalisation. Cambridge University Press; Cambridge: 2002.
5. Smith S. Evidence for the Practical Slippery Slope in the Debate on Physician-Assisted Suicide and Euthanasia. MedLR. 2005;13:1, 17–44.
7. Pretty v. UK above note 2. See the discussion of Article 8 (paras 57-78) and Article 14 (paras 84-90). 8. The word ‘staggering’ is not hyperbole. Amongst the many texts that feature prominently in debates on assisted-dying (both as a freedom from interference, and as a positive right) are the following: Harris J. The Value of Life. Routledge and Kegan Paul; London: 1985. ; Dworkin R. Life’s Dominion. Harper Collins; London: 1993. ; Singer P. Rethinking Life and Death. Oxford University Press; Oxford: 1994. ; Keown J, editor. Euthanasia Examined–Ethical, Clinical and Legal Perspectives. Cambridge University Press; Cambridge: 1997. ; Otlowski M. Voluntary Euthanasia and the Common Law. Oxford University Press; Oxford: 1997. ; Dworkin G, et al. Euthanasia and Physician-Assisted Suicide–For and Against. Cambridge University Press; Cambridge: 1998. ; Biggs H. Euthanasia–Death with Dignity and the Law. Hart; Oxford: 2001. ; Snyder L, Caplan AL, editors. Assisted Suicide–Finding Common Ground. Indiana University Press; Bloomingham and Indianapolis: 2002. ; McMahan J. The Ethics of Killing–Problems at the Margins of Life. Oxford University Press; New York: 2002. ; Keown, Euthanasia, Ethics and Public Policy, above note 4; Ost S. An Analytical Study of the Legal, Ethical and Moral Aspects of the Living Phenomenon of Euthanasia. Edwin Mullen Press; New York: 2003. ; Tännsjö T, editor. Terminal Sedation: Euthanasia in Disguise? Kluwer Academic Publishers; Dordrecht: 2004. ; Huxtable R. Euthanasia, Ethics and the Law: From Conflict to Compromise. Routledge Cavendish; Abingdon: 2007. ; McLean S. Assisted Dying: Reflections on the Need for Law Reform. Routledge Cavendish; Abingdon: 2007.
9. See eg Ahsan v. University Hospitals Leicester NHS Trust  PIQR P19.
10. For critiques based on similar concerns to those raised here, see Huxtable R Whatever you want? Beyond the patient in medical law. Health Care Analysis. 2008;16:3, 288–301. [PubMed]; McIvor C. Bursting the Autonomy Bubble: A Defence of the Court of Appeal Decision in R (On the Application of Oliver Leslie Burke) v. GMC. In: Smith S, Deazley R, editors. The Legal, Medical and Cultural Regulation of the Body: Transformation and Transgression. Ashgate; Farnham: 2009.
11. R (On the Application of Oliver Leslie Burke) v. The General Medical Council  EWCA Civ 1003.
12. See Sen A. Health Achievement and Equity: External and Internal Perspectives. In: Anand S, Peter F, Sen A, editors. Public Health, Ethics, and Equity. Oxford University Press; Oxford: 2004. It should also be noted that in limited cases in English law, conscientious objection is permitted: it is likely that any assisted-dying law would contain a conscience clause: see eg the Assisted Dying for the Terminally Ill Bill 2005, clause 7.
13. See eg the Assisted Dying for the Terminally Ill Bill 2005.
14. See eg
Keown J Restoring moral and intellectual shape to the law after Bland. LQR. 1997;113:482–503. [PubMed]; Ardagh M Futility has no utility in resuscitation medicine. JME. 2000;26:396–399. [PMC free article] [PubMed]; Read J, Clements L Demonstrably Awful: the Right to Life and the Selective Non-Treatment of Disabled Babies and Young Children. JLS. 2004;31:4, 482–509.; Wreen M Medical futility and physician discretion. JME. 2004;30:275–278. [PMC free article] [PubMed]
15. The arguments presented in sections II and III of this paper, and their relationship to alternative critical positions, are made in much greater detail in my forthcoming book “What Makes Health Public?”.
16. Wolff RP. Defense of Anarchism. University of California Press; 1998. Christopher Wellman distinguishes “normative anarchists” from “descriptive anarchists” by reference to their reasons for being anti-statist: a normative anarchist’s objections are principled, and hold that there is no political legitimacy; a descriptive anarchist is anti-statist because he believes on consequentialist grounds that the matters are better when there is no State: Wellman C Liberalism, Samaritanism, and Political Legitimacy. Philosophy and Public Affairs. 1996;25:3, 211–237. See also Christopher McMahon’s similar discussion of “libertarian anarchists” and “consequentialist anarchists”: McMahon C Autonomy and Authority. Philosophy and Public Affairs. 1987;16:4, 303–328.
17. A John Simmons, who doubts the legitimacy of the State, notes the potential for alternative “favorable evaluations” by which to assess political society: Simmons AJ Consent Theory for Libertarians. Social Philosophy and Policy. 2005;22:1, 330–356. In the argument here in favour of political normativity, I appeal to an alternative “favorable evaluation” than one afforded by a singular moral theory.
18. See eg Brownsword’s recent discussion in Brownsword R. So what does the world need now? Reflections on regulating technologies. In: Brownsword R, Yeung K, editors. Regulating Technologies: Legal Futures, Regulatory Frames and Technological Fixes. Barnes and Noble; 2008. pp. 40–41.
19. See Gray J. Two Faces of Liberalism. Polity Press; Cambridge: 2000. This work and the claim made in the text here are discussed in further detail below.
20. Wolff, In Defense of Anarchism, above n. 16; Nozick R. Anarchy, State, and Utopia. Blackwell; Oxford: 1974. 21. See eg
Jennings B From the Urban to the Civic: The Moral Possibilities of the City. Journal of Urban Health. 2001;78:1, 88–103. [PMC free article] [PubMed]; Jennings B. Public Health and Civic Republicanism. In: Dawson A, Verweij M, editors. Ethics, Prevention, and Public Health. Oxford University Press; Oxford: 2007. 22. See also Powers M Bioethics as Politics: The Limits of Moral Expertise. Kennedy Institute of Ethics Journal. 2005;15:3, 305–322. [PubMed]
23. McPherson T. Political Obligation. Routledge and Kegan Paul; London: 1967. p. 76.
24. See Griffin J. On Human Rights. Oxford University Press; Oxford: 2008. p. 35.
25. Although this is tautologically true, it bears explicit statement as so much moral analysis of law seems to ignore the problem of universalising from subjects that conceptually do not exhaust the sorts of beings that are under consideration. It is worth noting that many different sorts of analysis share this critical perspective: eg
MacKenzie C, Stoljar N, editors. Relational Autonomy: Feminist Perspectives on Autonomy, Agency, and the Social Self. Oxford University Press; Oxford: 2000. ; Gaylin W, Jennings B. The Perversion of Autonomy: Coercion and Constraints in a Liberal Society. second edition. Georgetown University Press; Washington: 2003. ; Griffin, On Human Rights, ibid..
26. Naffine N. Who are Law’s Persons? From Cheshire Cats to Responsible Subjects. MLR. 2003;66:3, 346–367.
27. See eg
Harris J Taking the ‘Human’ out of Human Rights. CQHE. forthcoming 2011 (available online).
28. See the methodological considerations in Wolff J Harm and hypocrisy–Have we got it wrong on drugs? Public Policy Research. 2007;14:2, 126–135.
29. Gray, Two Faces of Liberalism, above note 18.
30. See Gray, ibid.. See also Geuss R. Philosophy and Real Politics. Princeton University Press; Princeton and Oxford: 2008. , especially the discussion of Rawlsian theory at p. 85.
31. See ibid., including the comparable discussions of a dominant Kantianism in contemporary political theory in the introductions of each book.
32. See Freeman M The Philosophical Foundations of Human Rights. HRQ. 1994;16:491–514.
33. See Hasman A, Holm S Accountability for Reasonableness: Opening the Black Box of Process. Health Care Analysis. 2005;13:4, 261–273. [PubMed]
34. Most famously by comparative reference to a ‘state of nature’.
35. I share many of his concerns, and draw much from his argument, but differ from Geuss in this regard: see Geuss, Philosophy and Real Politics, above n. 30.
36. Hohfeld WN. In: Fundamental Legal Conceptions as Applied in Judicial Reasoning. Campbell D, Thomas P, editors. Ashgate Dartmouth; Aldershot: 2001.
37. See Gray J. Isaiah Berlin. Princeton University Press; Princeton: 1996. , especially chapter 2.
38. Gray, Two Faces of Liberty, above note 19.
39. See ibid., especially pp. 8-9, 66-68, and chapter 4.
40. Jennings, “Public Health and Civic Republicanism,” aboved n. 20. Jennings draws from the influential work: Anderson Benedict. Imagined Communities–Reflections on the Origin and Spread of Nationalism. Revised edition Verso; London: 1991. 41. Contrast the discussion in Gray, Two Faces of Liberalism, above n. 19, especially pp. 14-17 and pp. 84-85. I agree with Gray that moral rights are not foundational, but do not see that this implies a contention that within an established political system no framework of legal rights can be established, or why he need claim that these rights will necessarily clash.
42. See the reasoning in Buchanan A Human Rights and the Legitimacy of the International Order. Legal Theory. 2008;14:1, 39–70., especially pp. 61-64.
43. Gray, Isaiah Berlin, above n. 37; Coggon J Best Interests, Public Interest, and the Power of the Medical Profession. Health Care Analysis. 2008;16(3):219–232. [PubMed]
44. See Brazier M, Cave E. Medicine Patients and the Law. 4th edition Penguin; London: 2007. chapters 5 and 6.; Mason JK, Laurie GT. Mason & McCall Smith’s Law and Medical Ethics. seventh edition Oxford University Press; Oxford: 2006. chapter 10.; Jackson E. Medical Law–Text, Cases and Materials. second edition Oxford University Press; Oxford: 2010. chapters 4 and 5. See also Coggon J. Doing what’s best: organ donation and intensive care. In: Danbury C, Newdick C, Waldmann C, Lawson A, editors. Law and Ethics in Intensive Care. Oxford University Press; Oxford: 2010.
45. Indeed note the parallels with this claim of the power of the medical profession as regards assisted-dying policy specifically. As Francis Pakes clearly demonstrates, a unified and oppositional medical profession is a potent political force that can make policy stand or fall: Pakes F Under Siege: The Global Fate of Euthanasia and Assisted-Suicide Legislation. European Journal of Crime, Criminal Law and Criminal Justice. 2005;13:2, 119–135.; Pakes F The legalisation of euthanasia and assisted suicide: A tale of two scenarios. International Journal of the Sociology of Law. 2005;33:71–84.
46. Consider the substantial role for physicians in the Assisted Dying for the Terminally Ill Bill 2005.
47. Veitch K. The Jurisdiction of Medical Law. Ashgate; Aldershot: 2007.
48. A point picked up by Veitch in his analysis, and which leads him to focus specifically on the principle of autonomy: see ibid., especially chapters 3 and 4.
49. See eg notes 1, 2, and 8 above. 51. In the first report cited in ibid., there is reference to her claim being based on the ECHR’s prohibition of “inhuman or degrading treatment”. See also Anon [accessed 19 September 2010];Terminally ill woman seeks right to die. Guardian online. 07 Feb 12; http://www.guardian.co.uk/uk/2007/feb/12/health.humanrights. 52. See Coggon J Could the Right to Die with Dignity Represent a New Right to Die in English Law? MedLR. 2006;14:2, 219–237. [PubMed] See also Munby J’s overruled first instance decision in Burke v. General Medical Council  EWHC 1879 (Admin) and Munby Justice. A Duty to Treat?–A Legal Analysis. In: Smith S, Deazley R, editors. The Legal, Medical and Cultural Regulation of the Body: Transformation and Transgression. Ashgate; Farnham: 2009. It is not clear how Munby's reasoning can not apply to assisted-dying measures that would shorten life, as well as those aimed at serving other patient preferences. 54. Huxtable, ‘Whatever you want?’ above note 10, pp. 291-292.
55. Ibid., p. 292.
57. For a discussion of this question see Coggon J On Acts, Omissions, and Responsibility. JME. 2008;34:8, 576–579. [PubMed] 58. For a more thorough analysis of claims about medical decision-making and the possible reasons for allowing or denying a person’s choice, as evidenced by study of common law decisions, see Coggon J Varied and Principled Understandings of Autonomy in English Law: Justifiable Inconsistency or Blinkered Moralism? Health Care Analysis. 2007;15:3, 235–255. [PubMed] 59. Ost S. The De-medicalisation of Assisted Dying: Is a Less Medicalised Model the Way Forward? MedLR. forthcoming 2010;18:4. [PubMed] 60. See Ruger T Health Law’s Coherence Anxiety. GLJ. 2008;96:2, 625–648. (although Ruger’s focus is ‘health law’, the arguments apply also to medical law); Veith, The Jurisdiction of Medical Law, above note 47, chapter 1.
61. See Ruger, ibid., pp. 627-628.
62. Further to Ost, ‘The De-medicalisation of Assisted Dying,’ above n. 53, see eg
Faber-Langendoen K, Karlawish JHT Should Assisted Suicide Be Only Physician Assisted? Annals of Internal Medicine. 2000;132:6, 482–487. [PubMed]; Ogden RD Non-Physician Assisted Suicide: the Technological Imperative of the Deathing Counterculture. Death Studies. 2001;25:5, 387–401. [PubMed]
63. How widespread the perception of this might be is arguably more limited: for whatever its representative value, a search for the exact phrase “end of life law” on Google Scholar on 19th October, 2010 produced a modest 65 results (including one paper by me).
64. NHS Trust v. Bland  AC 789.
66. Pretty v. UK, above n. 2, paragraph 53.
67. Note that Veitch uses the concept of ‘jurisdiction’ as a methodological tool to describe and critically analyse both the practices of courts in medical law cases and the works of academic medical lawyers. My concern here is principally with the latter, though informed by the whole of his analysis.
68. NHS Trust A v. M; NHS Trust B v. H  1 All ER 587.
69. R (Burke) v. General Medical Council  2 FLR 1121; R (Burke) v. General Medical Council  3 FCR 169.
70. Veitch, The Jurisdiction of Medical Law, above note 47, p. 114, note 6.