In this article I will have four main focuses. The first of these will be an overview of pragmatism and some of the features central to it. Then I will move on to the concept of ‘best interests’. It will be shown that ‘best interests’ is a concept that fits nicely with many of the features of pragmatism- Holm and Edgar’s rejection of the principle in favour of pragmatism will be shown to be misplaced. Rather I will show how ‘best interests’ as a principle may be considered an embodiment of the ideals of pragmatic adjudication. The third section of the paper will briefly look at the role of the rational decision maker in medical law. I will show how this is not necessarily a feature we would expect to see in medical law decision making nor is it a model the courts use as a default when it is unclear what the interests of a particular individual are. The final section provides a note of caution to any full blown endorsement of pragmatic adjudication in medical law cases. I will examine the historical roots of pragmatism in legal realism. I will also show the danger of an over reliance on social policy considerations in cases dealing with the protection of vulnerable individuals.
|Number of pages||11|
|Journal||Health Care Analysis|
|Publication status||Published - 2008|
- LAW Centre for Health Law and Society
- Best interests
- Medical Law