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What can socio-legal studies contribute to medical law? Thoughts from a workshop in Paris

By Edward Dove

Socio-legal studies is a multi-, inter-, or trans-disciplinary academic field that investigates the nature, form, and function of law, legalities, and legal institutions through social science methods and methodologies. The approaches can be empirical, statistical, or conceptual (e.g. exploring law through the perspective of a conceptual approach such as feminism, actor network theory, or governmentality). While socio-legal studies has long been employed in diverse areas of law such as criminal law, refugee and asylum law, property law, and contract law, its operation in medical law seems to be more limited.[1]In part, this may be because medical law is still a nascent discipline, but it may also be that scholars have not thoroughly considered how socio-legal studies can enrich the study of the social and legal worlds of medical practice and health research.

I reflected on this overarching question while attending a day-long workshop in April 2018, co-organised by Professor Emilie Cloatre (Kent Law School) and Dr Olivier Leclerc (CNRS/Centre de Recherches Critiques sur le Droit). The workshop was organised with a view to:
a) exploring the methods, traditions, and theories of socio-legal studies in France and the UK, and
b) reflecting on what ‘socio-legal studies in context’ means for research traditions and forms of knowledge produced.
The nature and future of socio-legal studies

The workshop was divided into four sessions. In the first three, short papers were given by speakers, followed by discussions. In the final session, early career scholars (including doctoral candidates) offered short overviews of their research projects, with particular attention to the methodological and conceptual approaches adopted.
I particularly enjoyed the presentation in the first session from Professor Rosie Harding (University of Birmingham) on ‘The Presence and Futures of Socio-Legal Studies’. Speaking in her capacity as current Chair of the Socio-Legal Studies Association, Prof Harding observed that socio-legal studies has grown in the UK into a diverse, multi- and transdisciplinary strand of legal studies and social science. While there is much to laud regarding the growth of the field since the 1980s, the future is somewhat cloudy. ‘Brexit’ may move European research funding out of the UK’s reach and regulatory divergence may make cross EU collaborative work more difficult. Moreover, the UK research funding environment increasingly emphasises measurable impact; this might thwart contributions of social sciences and humanities research. Nonetheless, Prof Harding argued that socio-legal scholars are well placed to embrace the new difficulties and can work together to forge a brighter future than one might otherwise anticipate.
The take-home messages

In listening to the excellent presentations, three ideas came to mind regarding the ways in which socio-legal studies can contribute to medical law.
First, it offers opportunity to explore how medical law works at particular crossroads of human interactions in the so-called ‘real world’. Self-evidently, socio-legal studies is predicated on looking at law in context – moving beyond the written text and exegesis of code, judgment, and book and into the messy world of daily life. This phenomenological approach encourages the researcher to uncover how the law is shaped by everyday practices and to capture and understand subjective experience. Medical law is a prime site for empirical and conceptual investigation in human places and spaces where this messiness and complexity is particularly acute (and so law might be under most pressure). The wards, consulting rooms, operating theatre, and civil servant desk allow the intrepid researcher to consider the ways in which law structures – or does not structure – human action and interaction. Consider the recent cases of Charlie Gard and Alfie Evans. What, for example, do these cases imply for the long-standing reign of the best interests test? Socio-legal accounts of such difficult decisions and cases would reveal how law is structured by the actions that govern the individual and group undertaking medical (and research) duties.
Second, socio-legal studies can offer a richer theoretical understanding of law and how it is expressed and experienced in healthcare and health research contexts. That is, it can illuminate the nature of law through theoretical development (e.g. sociological studies of law, legal pluralism, legal consciousness) and through theorising from empirical findings (e.g. a grounded theory approach that builds theory through the data). For example, through empirical investigation of the practices of NHS research ethics committees (RECs), we come to better understand how law shapes and is shaped and experienced by those ‘on the ground’, be they regulators, REC members, researchers, or sponsors. In the same way, socio-legal studies help us to test theories that scholars propose as explanations for why certain laws have emerged and why they are structured in certain ways. For example, regulatory theory might suggest that the Medicines and Healthcare products Regulatory Agency (MHRA) is designed to operate in the public interest as a risk-based regulator. But is this really the case? Theory helps inform the inquiries that enable us to explore the ways in which law (and regulation) is shaped, works, and develops in specific contexts.
Lastly, socio-legal studies can enable scholars to provide empirical evidence to policymakers, regulators, legislators, the judiciary, academics, NGOs, and practitioners that can lead to reform. By investigating how law is applied, expressed, and experienced in the real world, be it through secondary data analysis, surveys, interviews, or observation, scholars are afforded opportunities to provide decision-makers with evidence that informs discussion of policy and evaluation of legislative and regulatory reform. In this way, the medical law scholar can demonstrate real-world impact and influence change in society. An example of this can be found in medical law’s sister discipline, public health law. Temple University’s Center for Public Health Law Research engages in public health law research and ‘legal epidemiology’ methods, which include legal mapping and policy surveillance. Through these socio-legal methods, the Center maps and evaluates the impact of law on health, identifying laws and policies that can improve health, increase access to care, and create or remove barriers to health.
Moving beyond the ‘what’

Medical law cannot sustain itself alone on inquiries into what the law is on a particular issue – doctrinal analysis driven by descriptive questions – what we might call a tyranny of the ‘what’. Scholars must also branch out to ask and answer evaluative questions, investigating whetherthe law is fit for purpose, whether it is as effective or just as it purports to be, and whether it adequately achieves its stated aims.
Medical law also requires explanatory questions to be asked, investigating the underlying causes behind, for example, why there is compliance (or not) with rules and regulations. In teasing out the ‘what’, ‘whether’, ‘how’, and ‘why’ questions, scholars of medical law not only will deepen their knowledge of the discipline and round it out, they will also contribute to a richer intellectual endeavour that can improve the regulation of medical practice, the quality of healthcare delivery, and the facilitation of ethical health research that benefits society.
Medical law is a multi-layered tapestry of rules, norms, principles, standards, and legal devices that a) governs the relationships among healthcare professionals, patients, participants, government, and society, and b) influences the functioning of healthcare and health research. As a nascent but established sub-discipline within law, it warrants well-rounded scholarship that investigates the what, how, and why – the doctrinal, the empirical, and the socio-legal. Socio-legal studies offers this. It reveals particular insights when we are at the crossroads of health and illness, and of professions and values, namely through charting the interconnecting roles of law, theory, and practice as experienced in real life, at both micro and macro levels. And, it illuminates particular challenges in medical law that we must understand better. Arguably, the Gard and Evans cases suggest that the authority and all-encompassing nature of the best interests test might still not be enough – in law and practice – to reflect a changing set of values, expectations, and needs. As lawyers, do we properly understand how best interests is actually working on the ground? Without question, socio-legal studies and medical law have much to contribute each other; in bringing them together, scholars can forge research excellence and real-world impact that improve our collective health and wellbeing.

[1] This is a relative, rather than absolute, claim of limited application. See e.g. Emilie Cloatre, Pills for the Poorest: An Exploration of TRIPS and Access to Medication in Sub-Saharan Africa (Palgrave McMillan, 2013), which uses ethnographic case studies in Djibouti and Ghana, and insights from actor-network theory, to explore the links between intellectual property and access to medication. Also, the Socio-Legal Studies Association, the UK organisation that promotes and supports the work of socio-legal academics, regularly features socio-legal research in medical law at its annual conferences.

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