Hidden Law‐Making in the Province of Medical Jurisprudence

Judges articulate their role in controversial cases of medical ethics in terms of deference to Parliament, lest their personal morality be improperly brought to bear. This hides a wide range of law-making activities, as parliamentary sovereignty is diffused by ‘intermediate law-makers’, and judicial activity is more subtle than the deference account implies. The nature of litigation raises questions about the contributions of other legal personnel and also the nature of the parties' interests in test-cases. While judges demonstrate an awareness of some of these issues and anxiety about the constitutional legitimacy of their work, a more nuanced account is needed of their proper role. This may be built on Austin's theory of tacit legislation. It may draw from human rights law. However, considerable work is required before the complexities of hidden law-making can be properly incorporated into the province of medical jurisprudence.