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Identity, personhood and the law: a response to Ashcroft and McGee
  1. Charles Foster,
  2. Jonathan Herring
  1. Faculty of Law, University of Oxford, Oxford, UK
  1. Correspondence to Dr Charles Foster, Faculty of Law, University of Oxford, St Cross Building, St Cross Road, Oxford GB OX1 3UL, UK; charles.foster{at}gtc.ox.ac.uk

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We are very grateful to Richard Ashcroft1 and Andrew McGee2 for their thoughtful and articulate criticisms of our views.3

Ashcroft has disappointingly low aspirations for the law. Of course he is right to say that the law is not a ‘self-sufficient, integrated and self-interpreting system of doctrine’. The law is often philosophically incoherent and internally contradictory. But it does not follow from this that all areas of the law are philosophically unsatisfactory. And if that were true, the response should not be Ashcroft’s contemptuous despair, but a determination to make it better. Ashcroft would say that such idealism is unrealistic in the light of the very nature of ‘the Law’: ‘…a complex assemblage of institutions, rules, accredited persons, practices and systems’. That isa radically ‘legal realist’ position and is plainly unsustainable. We can demonstrate its unsustainability while demonstrating both that he is wrong to tar all areas of the law with the same brush and wrong to deny that medical ethics are ‘intellectually and metaphysically prior to medical law’.

Take the law of murder which, of course, is part of ‘medical law’. It is surely trite to observe that humans thought that killing people was wrong (an intellectual and metaphysical position) before they started penalising murder. Ethics generated the law. There is nothing elusive or incoherent about the philosophical foundations of the law of murder. Human life is thought to matter. To kill is both to cause a harm and to commit a wrong.

There is more than something of the straw man in Ashcroft’s elaboration of his argument. For he chooses, of all things, autonomy and, in particular, its invocation in the law of consent. Lawyers’ eyebrows will rise at his assertion that ‘while the concept of “autonomy” has an explanatory role in discussions of the …

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