Religion, Medicine and the Law

Clayton Ó Néill

• Publisher: Routledge
• Year: 2018
• ISBN:
  9781351120609
• Edition: 1
• Topic: Derecho
• Subtopic: Teoría y práctica del derecho

Is the legal protection that is given to the expression of Abrahamic religious belief adequate or appropriate in the context of English medical law? This is the central question that is explored in this book, which develops a framework to support judges in the resolution of contentious cases that involve dissension between religious belief and medical law, developed from Alan Gewirth's Principle of Generic Consistency (PGC).

This framework is applied to a number of medical law case studies: the principle of double effect, ritual male circumcision, female genital mutilation, Jehovah's Witnesses (adults and children) who refuse blood transfusions, and conscientious objection of healthcare professionals to abortion. The book also examines the legal and religious contexts in which these contentious cases are arbitrated. It demonstrates how human rights law and the proposed framework can provide a gauge to measure competing rights and apply legitimate limits to the expression of religious belief, where appropriate. The book concludes with a stance of principled pragmatism, which finds that some aspects of current legal protections in English medical law require amendment.

1 Introduction

Aim and overview of the book

The aim of the book is to determine the adequacy of the legal protection that is afforded to Abrahamic religious belief in English medical law. This aim will be achieved through the application of a new framework to a number of specific case studies. The core research question that will be answered is as follows: is there adequate protection afforded to the Abrahamic religious beliefs of patients and healthcare professionals in English medical law? The book will show why and where the analysis of the law currently used by the courts, including the European Court of Human Rights (ECtHR), fails to answer questions which are fundamental for resolving the tensions presented by conflicts between doctors and patients in the context of Abrahamic religious belief.

This book proposes acceptance of Alan Gewirth’s Principle of Generic Consistency (PGC) as the supreme principle of both morality and legality.¹ It follows that the substance and process of creating legal instruments and the substance and process of judicial reasoning must be compliant with the PGC. A provisional examination suggests that the legal protection that is afforded to the manifestation of religious belief is not fully aligned with the PGC. The importance of protecting the right to manifest religious belief is highlighted. The book proposes that an approach of principled pragmatism be adopted in respect of contentious medical law cases, so as to bring about a good faith attempt at applying the PGC.

Aim of the chapter

In cases involving disputes judges currently make deliberations that are fundamentally consistent with domestic precedent. They are also mindful of precedent in other jurisdictions. Discrete differences in each case are also allowed for and academic commentary is sometimes considered. The judges must be consistent with the principles laid down in common law. They retain their impartiality by merging their own legal expertise and experience with an ability to weigh alternative arguments in an open-minded manner in order to reach a judgment that is aligned to best practice in applying the legal principles at issue. Judges are, therefore, guided by precedent as it applies to case law, academic reasoning and practice in other jurisdictions. They must carefully consider the ECtHR and the implementation of its Convention under the Human Rights Act 1998 (HRA). Judges are, however, sometimes, faced with balancing rights where these rights can be situated from the standpoint of an individual interpretation of what constitutes a moral action. How can the judge weigh up different stances, some based upon religious belief and others based upon a different interpretation of the same belief or another belief altogether? This book will put forward a framework to help to find appropriate solutions.

This chapter explains the relevance of Rawls’ concept of Public Reason as a preliminary issue in relation to legislative (parliamentary/collective) decision-making in the context of the manifestation of religious belief.² Differences in legislative and judicial decision-making are set out and analysed. The chapter sets out the limits of public reason and, as a consequence, elucidates why public reason is insufficient in answering questions before judges in their role as judicial decision-makers in more specific contexts and proposes that the PGC become the primary weight mechanism whereby legal procedures reflect the tenets and values of the PGC and make a good faith attempt at applying it.

The chapter also highlights and assumes the acceptance of legal idealism over legal positivism as a mechanism in interrogating the adequacy of legal protection concerning the manifestation of religious belief in medical law contexts. This discussion will lead into chapter 2’s adoption of Gewirth’s PGC as a principled tool for resolving disputes.

Rationale for focus on Abrahamic religions in the case studies

It is very difficult to define ‘religion’. This is evident in the fact that judges have consistently avoided prescriptively defining ‘religion’ or ‘religious belief’. Adhar and Leigh also point to defining religion as being a ‘notoriously difficult task’.³ They refer to, inter alia, a substantive content approach that has been used in English legal cases.⁴ This perspective defines religion by identifying its ‘essence’ or ‘core characteristics’,⁵ which could include, for example, the fact that a religion addresses fundamental and ultimate questions,⁶ or religion is perceived to be a particular and comprehensive system of faith and worship.⁷ Section 10(1) of the Equality Act 2011 gives some breadth to the definition by stating that ‘religion means any religion and a reference to religion includes a reference to lack of religion.’ It provides a wide definition that is not specific to any one religion.

Audi considers that a religion possesses a number of important features, including, but not confined to the following: (1) belief in one or more supernatural beings; (2) a moral code believed to be sanctioned by the god(s); (3) a world view according adherents a significant place in the universe; (4) a more or less comprehensive organisation of one’s life based on the world view; (5) a social organisation bound together by these features and others. According to Audi, Abrahamic religions exhibit all these features. Because they consider God to be ‘omniscient, omnipotent and omnibenevolent,’ these religions have considerable authority in the lives of their believers.⁸ This research accepts this broad interpretation of ‘religion’.

This monograph addresses its commentary on religious belief to Abrahamic religions, which include Christianity, Judaism, and Islam. The difficulty in defining ‘religion’ provides part of the rationale for restricting the book to Abrahamic religious belief. It was logical to confine the focus of this book to religions that were part of a similar theological ‘root’. There are particular reasons why Abrahamic religions go together in a fairly logical way, given that they are monotheistic, founded in documented sources, and have historically been considered as important conduits of thought and belief within society. Islam, Judaism, and Christianity are organised religions, ecclesiastically and hierarchically structured to some degree. Abrahamic religious believers are all connected as they all trace a common origin to Abraham. Placing a focus on Abrahamic religions excludes from consideration other forms of religious belief, provides for a broad spectrum of legal and religious perspectives and also ensures that there are manageable research parameters in place. The specific focus on Abrahamic religions arose also from the fact that the case studies examined focus on situations when Abrahamic beliefs have come into conflict with other values protected by English medical law. While the book seeks to analyse the defensibility of the approach of English law to Abrahamic religious belief specifically, it is likely that many of the conclusions drawn from the analysis of that context would, however, be generalisable to non-Abrahamic religions.

Not all religious belief is, of course, encapsulated within the specific focus of Abrahamic religious belief. English law has historically often focused on issues arising from Abrahamic faith and this book continues with that specific focus. It is not within the remit of this book to definitively calculate the degree to which the focus on Abrahamic religions has evolved because the issues of other faiths are not explicitly articulated, or if English law has given preference to Abrahamic religions over non-Abrahamic religions, or because English law has failed to dynamically engage with the relationship between medicine and faith. It may be worth considering, however, how, in particular, the Judaea-Christian parameter of Abrahamic religions has reflected, in many ways, the established viewpoint, the viewpoint of the majority, the viewpoint that has, to a degree, been tried and tested over centuries. That is not to say, however, that other religions should not in the past have been given equal meritorious consideration or could not in the future be considered with gravitas.

Religious adherents are not a homogenous group, with the same consequences affecting an individual if one of their religious beliefs is restrained in any way. For some people and some religious beliefs, interference with that religious belief undermines their very identity. In other contexts, for other people with different religious beliefs, interference with that belief might result only in momentary frustration. The consequences for the individual will depend on the belief and will depend on the context of the individual. The level of the belief and its relevance to the religious adherent in question in specific contexts needs to be measured. This is not an easy task for any regulatory structure, including the judiciary, charged with weighing and measuring the relevant harm caused by interference with the right to manifest religious belief. For the most part, this book is dealing with cases where the religious belief of some of those bringing cases in medical contexts is an intrinsic part of their self-identity, but this assumption cannot be simply made on a general level when dealing with these cases.

Rationale for consideration of legal idealism as an approach to evaluating the adequacy of the legal protection afforded to the manifestation of religious belief

Both law and religion interconnect within the society from which they evolve.⁹ There are two main thoughts about law as a social institution. One is legal idealism, which sees the foundations of law’s authority as based upon natural rights. As a consequence, rights and their principles define legal order. The second is legal positivism, where law is seen as the instrument of deliberate social engineering and where political stability and social order are brought about as a consequence of rules. The rules that underpin social order are conceived to be something valuable in their own right.¹⁰ Both these viewpoints are attempts to theorise conceptions about the law, to make them intelligible and justifiable to the audience. Both, in some way, deal with legal order and a body of rules.

In the end, legal positivism and legal idealism differ in their conception of the rule of law, but they both come from a perception of social order. What matters in terms of these rules is that they are not imposed, but reflect the underpinning of social life.¹¹ However, the two perspectives are not as apart as might be thought. Idealists see the law as: don’t interfere with people’s freedoms. Positivists see law as the pursuit of goals.¹² All of this changes with the society of the time and the political nature of that society. Dworkin wants society to consider principles and law as involving interpretative practices.¹³ He says that beliefs in society are a product of its shared history, tradition and culture, and the content of beliefs is arbitrary because we have all different shared experiences of community. For example, in a society ch...