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" A clash of traditions? : "
Bratton, Mark Q.
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Latin Dissertation
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| Record Number
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1099442
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TLets572922
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| Main Entry
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Bratton, Mark Q.
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| Title & Author
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A clash of traditions? :\ Bratton, Mark Q.
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| College
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University of Warwick
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| Date
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2012
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| student score
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2012
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| Degree
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Ph.D.
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| Abstract
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The concept of autonomy has acquired paramount status in English medical law, medical ethics and philosophy. Using the methodology of grounded theory, and three iterative cycles of enquiry of the medical law reports and the literature, this thesis investigates how and why judges use and interpret autonomy in ethically-contentious medical law cases. Each cycle of enquiry reveals its internal limitations, prompting further engagement with the data in order to overcome those limitations and deepen the level of understanding and explanation. The first cycle of empirical enquiry describes variation in judicial usage of the autonomy concept in the law reports but gives way to a second cycle of hermeneutical enquiry in order to advance understanding of what judges mean in their use of it. Concurrent analysis of the literature on autonomy reveals a progressive development from a partial view of autonomy as body and mind towards an emerging holistic concept as the identity and capability of the person. The failure of hermeneutical enquiry to explain judicial variations in meaning and interpretation leads to a third cycle of enquiry based on critical realist analysis, examining the underlying social structures and traditions that may influence judicial variations in usage. Using MacIntyre’s concept of tradition, and Brandom’s tools of inferential analysis, the thesis explores whether the law reports reveal the influence on judicial usage of traditions of legal rationality – common law, statute law, and European human rights law – and whether these legal traditions are influenced by wider traditions of moral and political order. The emergent theory of the research, developed through the iterative cycles of enquiry of the data is that judges have developed a community of practice which has over time elaborated a sophisticated ethical language of autonomy to mediate the influence of different legal traditions and, in so doing, has constituted a new practice of medical jurisprudence.
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| Subject
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R Medicine (General)
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University of Warwick
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