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Title: Regulating medicine : a theoretical reassessment of the constitution of medical law
Author: Tattis, Alexios
Awarding Body: University of Edinburgh
Current Institution: University of Edinburgh
Date of Award: 2006
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One of the most persistent issues in the sociology of law concerns the limitations of legal regulation. This thesis tackles this question in the case of the legal regulation of medicine, and investigates what the law attempts to achieve in this context and what the conditions of its success might be. This inevitably calls into question the precise identification and the nature of both the field and the instruments of regulation. First, I consider the doctrinal categories of medical law and then the legal norms that constitute the discipline. As far as the initial question is concerned both these perspectives are problematic: the former because its conceptualisations of medical law are themselves contested or contestable and the latter because the legal norms reveal a field of intense complexity, which requires further analysis. These problems make it necessary to go back to questions of definition and delimitation. Based on insights from systems theory, especially from the work of Niklas Luhmann and Gunther Teubner, I argue that the most fruitful way to discuss legal regulation is based on an understanding of law as an autopoietic social system. This understanding challenges the way that medical law is traditionally perceived, defines the link between law and medicine in terms of structural coupling and explicitly highlights the inherent limitations of the regulatory potential of the law. My analysis does not aim to undermine the possibility of the legal regulation of medicine. Rather, I argue that legal regulation can be achieved, but only when three factors are taken into account. First, that the structural coupling between law and medicine needs to be related to the concept of medical risk; second, that there are always limitations on what the law can accomplish, finally, that the way forward is a kind of reflexive regulation that better accommodates the particularities of different social systems.
Supervisor: Not available Sponsor: Not available
Qualification Name: Thesis (Ph.D.) Qualification Level: Doctoral
EThOS ID:  DOI: Not available