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TOWARDS A RHETORIC OF MEDICAL LAW by JOHN HARRINGTON

(Abingdon: Routledge, 2017, 200 pp., £110.00)

In this ambitious and innovative book, John Harrington, Professor of Global

Health Law at Cardiff Law School, aims to develop an original approach to
medical law by combining a rhetorical turn with a broadly systems-
theoretical account of the place of law in modern Britain. This is a big
agenda to pursue within the confines of a single monograph that also offers
many persuasive case studies. The author offers a systematic and convincing
critique of the dominant approach to medical law that subordinates it
normatively and conceptually to medical ethics or bioethics, highlighting the
contradictions and limits of ethics in either guise as a means of imposing
reason and consistency into this field of law. Indeed, he argues that law is
marked by paradoxes, contradictions, indeterminacy, and contingency that
must all be managed if law is to function as a stable source of legal decision-
making (oriented to the distinction `lawful-unlawful') and thereby provide
orientation to practices whose primary purpose is extra-legal (for example,
medicine) but has contingently necessary legal dimensions. Building on the
indeterminacy of law and, a fortiori, the contingency of legal argumentation,
Harrington asserts the importance of the art of rhetoric and the role of
rhetorical practices in shaping its contingent development. The rhetorical
turn ± or, better, rhetorical return since it revives the ancient Greek and
Roman traditions of rhetoric after a period of neglect ± is one form of the
cultural turn and can be located within the broader current of the discursive
turn. It is a key resource in analysing the substance and significance of legal
argumentation and shows how medical law uses rhetoric to make its
transformative appeals.
The author illustrates this analysis from a series of cases in the fields of
medical law that explore the role of rhetoric in maintaining, modifying, or
radically transforming medical law. In this context, ethics becomes a
pluralistic and fluid source of rhetorical appeals rather than a monologic and
timeless set of principles, and is just one of several types of rhetorical
argument that can be deployed in the field of medical law. The judicial and
academic reasoning that is variously deployed in legislation, litigation, and
adjudication draws on various modes of rhetorical appeal (notably logos,
pathos, and ethos) and specific rhetorical strategies that must be fashioned to
appeal to concrete audiences within specific historical, cultural, and political
contexts. In this sense, rhetoric involves strategic interventions into the legal
field that seek to persuade relevant actors and wider audiences by appeal to
more or less concrete and localized common sense and cultural forms as well
as formal and stylistic devices. Their aim is to persuade these actors and
audiences about the need to change (or maintain) the law regarding more
general or more specific legally framed issues or, one might add, to establish
that some issues are not appropriately determined or decided through resort
to the legal system. A key element in this analysis is that rhetoric has broad

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performative effects ± it changes not only the legal field but also the self-
understandings and normative orientations of diverse social actors. After
establishing this theoretical and heuristic framework, Harrington develops it
further through a series of excellent case studies that, to this non-specialist
reviewer, add weight and conviction to the overall argument for a rhetorical
turn.
While this is the dominant line of analysis in Towards a Rhetoric of
Medical Law, the author seeks to put rhetoric in its place within the political
economy of health care. Indeed, he suggests that `[t]he challenge . . . is to
conserve the insights of legal indeterminacy [hence the role of rhetoric in
legal argumentation] while recognizing the enduring influence of the
capitalist economy' (p. 7). This is one variant of the more general challenge
in work that makes a cultural turn (with rhetoric being one of many current
instances of a cultural turn) whilst seeking to recognize the importance of
those aspects of the natural and social order that are not reducible to social
practices of sense- and meaning-making. Elsewhere I have described this
challenge as the task of navigating a treacherous course between the
Charybdis of constructivism and the Scylla of structuralism.1 Constructivism
risks reducing social relations to the contingent results of discursive practices
(here, rhetorical practices) that are understood in voluntarist terms such that
changes in discourse can change the world. Structuralism risks over-
emphasizing structural constraints to the extent that structures are held to
reproduce themselves quasi-automatically and are resistant to discursive
change, permitting only those changes in sense- and meaning-making that
are compatible with their self-reproduction. The case for a rhetorical turn to
support a critical political economy of health care can be interpreted as a
contribution to the broader development of cultural political economy, that
is, the combination of a cultural turn (or turns) with a critique of political
economy that respects the contributions of both to a full explanation of the
phenomenon under investigation that is adequate at the level of meaning as
well as material causality.2
A key issue here is that there are many ways in which rhetoric can be used
and not all uses of rhetoric are equally performative. This poses the question,
common in institutional and evolutionary political economy, about the
mechanisms of variation, selection, and retention. Here, this translates into
the question of why, given the potential proliferation of rhetorical appeals in
medical law, some are selected as the basis for shifts in medical law and,
from among these shifts, some are retained and set precedents (and so on) as
a foundation for further developments. This is an area for future work.

1 B. Jessop, `Cultural political economy and critical policy studies' (2009) 3 Critical
Policy Studies 336.
2 See N.L. Sum and B. Jessop, Toward a Cultural Political Economy: Putting Culture
in its Place in Political Economy (2013).

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In the systems-theoretical context in which Harrington locates his book,

the twin challenge to avoid constructivism (a one-sided emphasis on
rhetoric) and structuralism (a one-sided emphasis on material causes) would
seem to translate into the question of the structural coupling and co-
evolution of the legal system, the medical system, the political system, the
economic system and, perhaps, other self-organizing and operationally
closed systems ± such that developments in medical law are not purely
internal and discursive but also shaped by external factors. This is a serious
challenge because autopoietic systems theory as developed by Niklas
Luhmann tends to suggest that all systems are equal in their operational
autonomy, that none can substitute for the others, and that each exists in an
environment that comprises a self-organizing ecology of self-organizing
systems. However, in seeking to locate his analysis in a materialist context,
John Harrington focuses on the economy as the ecologically dominant
system. This notion was introduced by the French philosopher, Edgar Morin,
who uses it to denote an ecological relation wherein some systems may be
dominant, but not where one dominates.3 Niklas Luhmann referred to this in
his early work and attributed ecological dominance to the economy4 but
seems to have retreated from this open acknowledgement of the primacy of
the economy in his later work. Nonetheless, in several studies, including Law
as a Social System,5 he continued to refer to the tight coupling between the
legal, political, and economic systems as the core of modern society and to
the huge significance of global finance in shaping the dynamic of world
society.
Drawing on these insights, I have proposed the concept of the ecological
dominance of the profit-oriented, market-mediated logic of capital accumu-
lation within modern society. This provided a systems-theoretical foundation
(for those who deem it necessary) for the growing importance of the logic of
capital accumulation in shaping the development of other systems and social
relations more generally in the modern world.
John Harrington takes this interpretation of ecological dominance as the
key concept for escaping the Charybdis of a rhetorical constructivism
without exposing his argument to the risks of structuralism. Specifically, he
writes that ecological dominance:
refers to the capacity of the economy to exert asymmetric influence over the
functioning of other social systems without, however, removing their
autonomy or `operational independence'. Legal and medical decisions cannot
be reduced to profit calculations. But capitalism's greater flexibility,
complexity and capacity for reorganization mean that other systems are
nonetheless forced to deal with the problems thrown up by it and to identify its

3 E. Morin, La meÂthode: la vie de la vie, vol. 2 (1980) 44.

4 For example, N. Luhmann, `The functional differentiation of society' (1974),
unpublished paper, cited by G. Kiss, GrundzuÈge und Entwicklung der Luhmannischen
Systemtheorie (1986).
5 N. Luhmann, Law as a Social System (2004).

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successful functioning as one of their own goals. It needs to be noted that these
are tendencies only, economic domination is often resisted, and that the path of
influence, though asymmetrical, runs in both directions (p. 8).
What this translates into is somewhat less than an exploration of how the
profit-oriented, market-mediated logic of capital accumulation asymmetric-
ally shapes the development of medical law. It serves instead to provide a
materialist framework for exploring the structural selectivities that bear on
the variation, selection, and retention of competing rhetorical discourses
around the need for changes in (or maintenance of) medical law. Specific-
ally, John Harrington notes the transition from a Keynesian welfare national
state framework for the development of medical law in post-war Britain to
the development of a neo-liberal economic and political order. Several of his
exemplary cases of the use of rhetoric show how this transition has affected
the historical context, cultural resources for rhetorical appeal, the political
context, and the growing tension between decommodification and national
institutional frameworks of medical law in the Keynesian era and the push
for commodification, market proxies, and fragmentation of the political
economy of health in the neo-liberal period. This is generally persuasive but
the analysis remains largely contextual and, as a result, detailed causal
mechanisms are not explored.
I find the analysis of rhetoric very powerful throughout this text and it is
clearly shown how rhetoric can be strategically adapted to new issues or old
issues that acquire new significance because of shifts in the development of
the legal system, the political system, the health system, the science system,
or the profit-oriented, market-mediated process of capital accumulation in
the economy. What is less persuasive is the claim that shifts in medical law
demonstrate the importance of ecological dominance. This is because the
influence of the capital relation is referred to in generic terms but, as deve-
loped by the current reviewer, ecological dominance operates, to the extent
that it does, at the level of the world market and, as Niklas Luhmann also
notes, is closely related to the autonomous operations of the global financial
system. Yet the influence of the economy in the present analysis of the use of
rhetoric in medical law is mainly referred to a national institutional matrix
that involves a specific relation between the economic and political systems
(the Keynesian national welfare state), its crisis, and the emergence of neo-
liberalism (which, again, is irreducible to its economic moments). This
framing helps to explain the institutional context that might operate
selectively to shape the content, modalities, and styles of rhetoric deployed
in legal discourse and to shape the relative success of different strategic
interventions as mediated through rhetoric. But it also takes the ecological
dominance of the capitalist order for granted without showing how this is
mediated through the kinds of issues that get thrown up (and then problema-
tized) through the structural coupling and co-evolution of the health system,
the science system (through new medical discoveries, technologies, or
practices), the economic system (through the differential pursuit of new

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scientific discoveries in terms of their anticipated profitability and/or through

the more general push to commodify, deregulate, or privatize the health care
system), the political system (through shifts in public opinion, through
political calculation of what is good for government, and so on) or, again,
through the mass media (with their distinctive and changing sense of `news
value'). Given the range of possibilities when different operationally
autonomous systems interact and interpenetrate, something more is required
to demonstrate the influence of the logic of capital accumulation on the
development of medical law.

BOB JESSOP
Department of Sociology, Lancaster University, Bowland North, Lancaster
University, Lancaster LA1 4YN, England
b.jessop@lancaster.ac.uk

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