Introduction
Heath care services across the world are increasingly commodified under the influence of international economic law and the reforming drive of national elites. The commodification of medicine is manifested in two contradictory tendencies (Harrington, Reference Harrington2007). On the one hand, access is expanded through the creation of cross-border markets benefiting well-resourced patients (Chanda, Reference Chanda2002) On the other hand, access is restricted through the global strengthening of monopoly patent rights over essential drugs (’t Hoen, Reference ’T hoen2002). Both tendencies generate pressure for mobility, though this is differentially realised in practice. ‘Health tourism’ from rich to poor countries, or as between rich countries, is encouraged as a means of reducing the burden on domestic systems and as an invisible export for the receiving nation. World trade law is devoted to assisting this sort of population movement (Arnold, Reference Arnold2005). The health catastrophe unfolding among the majority of the world’s population equally encourages migration in search of treatment: from poor to rich countries (Aginam, Reference Aginam2000). However, this movement is resisted by an extensive legal and security apparatus at the frontiers of the developed world.
These developments in health care are reflected in the changing case-load of national courts. In Britain, for example, the 1970s and 1980s were marked by legal challenges to the allocation of resources within the National Health Service (NHS) (Newdick, Reference Newdick2005, p. 98). The decisions in these cases presumed a territorially bounded health system over which parliament was sovereign. By contrast, the last ten years have seen an increase in patients seeking to travel abroad for health care, which is either not funded or prohibited by law in the United Kingdom (Newdick, Reference Newdick2006). Equally, incomers to Britain have challenged adverse immigration and asylum decisions on the basis that their most basic health needs would otherwise go unmet. The courts have strained to apply common law and statute, as well as the relevant provisions of European Union and European human rights law, in the resolution of these cases. An adequate explication of these decisions in terms of legal doctrine is of the greatest practical importance to lawyers, litigants and policy-makers. My objective in this paper is somewhat different, however. I wish to examine the connections between decisions of this sort and the broader political and economic context in which they are made. In particular, I am concerned to investigate judicial responses to the changing global geography of health care. Put briefly, these responses are informed by the declining plausibility of national territory as an implicit frame for disputes regarding access to health care and uncertainty as to what frame, if any, is to replace it.
In seeking to clarify the tensions and shifts in judicial reasoning I draw on classical and modern theories of rhetoric. These offer tools for analysing the strategic dimensions of judicial speech and linking it to its changing contexts. My investigation takes as its focus the 2005 decision of the House of Lords in N v Secretary of State for the Home Department Footnote 2 (hereinafter N). Their Lordships ruled in that case that a failed asylum seeker infected with HIV could not challenge her deportation, even though this would result in the effective cessation of life-sustaining treatment. Given its pedigree, this decision is of great formal importance within the British legal system. But, as is clear, it also influences the prospects and behaviour of individuals and institutions in the rest of the world. The House of Lords can, thus, be seen as a ‘node’ within an emerging network of global health governance, which includes courts, governments, companies, international bodies and non-governmental organisations in different locations.Footnote 3 The power of such nodes lies, not only in their capacity to compel certain behaviours, but also in the development of more or less legitimate rhetorics as regards global health problems (Braithwaite and Drahos, Reference Braithwaite and Drahos2000, p. 528).
This essay is arranged as follows. In the next section I consider in detail the facts and reasoning of the House of Lords in N, which was subsequently confirmed by the European Court of Human Rights.Footnote 4 The following sections focus on the ‘means of persuasion’ in rhetoric elaborated by Aristotle and others. These refer to the common-sense assumptions shared between speaker and audience, the emotions evoked in the audience by the speaker, and the positive character traits of the speaker which may sway an audience. Their combined force depends on the local and historical context within which they are deployed. Thereafter I seek to show the importance of state policies and institutions in ‘producing’ spaces and scales. Britain’s National Health Service made a profound contribution to the material production of national space and the creation of a nationally defined common sense regarding health care entitlements. More recent reforms, as well as the broader trends already mentioned, mean that the national scale is no longer wholly predominant in the organisation and representation of health care delivery in Britain. The judgments in N are then considered from this perspective. It will be seen that national scale of health care entitlement was deployed to check N’s cross-border quest for therapy. But what was previously implicit now had to be openly asserted by judges under scrutiny, not just from the rest of the legal community, but also from activists, the media and the general public. Moreover, the House was concerned to contain and displace the emotions raised by the facts of the case in order to secure the plausibility of their own judgments. This rhetorical strategy can be explained with reference to Hannah Arendt’s work on the risks presented by an untrammelled ‘politics of pity’.
The decision in N v Secretary of State for the Home Department
N concerned a Ugandan national who had sought asylum in Britain in 1998. Ms N had been kidnapped by the insurgent Lord’s Resistance Army and held for two years.Footnote 5 On being captured by the Ugandan army she was subjected to rape and further ill-treatment. Soon after her arrival in Britain Ms N was diagnosed as HIV-positive, having a CD4 cell count of 10; the normal count is 500. She was successfully treated with anti-retroviral drugs, which restored her CD4 cell count to 414. With the therapy she would remain well for decades; without it she would die in great pain inside two years. Her application for asylum was refused by the Home Secretary. She claimed before an Immigration Appeal Tribunal (IAT) that deportation would violate her right to freedom from torture and inhuman and degrading treatment under Article 3 of the European Convention on Human Rights (ECHR). In Uganda anti-retroviral therapy was more expensive than she could afford. A terrible death would be the inevitable consequence of her forced return.
The IAT, Court of Appeal and House of Lords all rejected this claim. Under s.2(1) Human Rights Act 1998 they were required to take into account the jurisprudence of the European Court of Human Rights, and in particular its 1997 decision in D v. UK.Footnote 6 There D successfully invoked Article 3 of the Convention to resist his deportation from Britain to St Kitts. He had entered the final stages of AIDS-related illness. Given the lack of medical facilities in St Kitts, the absence of any family support there, and his residence in a UK hospice, it would amount to inhuman and degrading treatment to return him. The difficult task of distinguishing the facts of D from N’s case was achieved through a close study of the subsequent Strasbourg jurisprudence.Footnote 7 In all except two out of nine cases an appeal to remain in a Convention state on grounds of mortal medical need under Article 3 was rejected. The European Court of Human Rights had confined the ratio of D v. UK to cover only cases where the applicant was already terminally ill.Footnote 8 By contrast, those benefiting from anti-retroviral therapy were invariably in good health at the time of the trial. Though their deportation to a developing country would mean the end of therapy and certain death, they fell outside the facts of D and thus also outside the protection of Article 3. These decisions were clearly influenced by the development of (costly) anti-retroviral therapies in the years after D was decided (Palmer, Reference Palmer2005, p. 537).
As Laws LJ had held in the Court of Appeal in N, the protection afforded in D v. UK was an ‘extension of an extension’ of the core meaning of Article 3.Footnote 9 The Convention aimed to protect individuals from inhuman and degrading treatment by signatory states. In Chahal v. UK Footnote 10 this had been extended to cover the direct actions of non-signatory states. There it was held that a Sikh militant could not be deported from Britain for fear of being tortured on arrival by agents of the Indian state. Article 3 was further extended in D to include circumstances of extreme human need caused by no direct state action at either end. In the present case Laws LJ, and a unanimous House of Lords, held that the scope of Article 3 should be confined to this extent. Beyond D, there might be ‘other exceptional cases, with other extreme facts where the humanitarian considerations are equally compelling’.Footnote 11 But the facts in N were not of this order. Thousands in a similar position arrive in the UK every year.Footnote 12 The reasoning of the House of Lords was subsequently endorsed by a majority of the European Court of Human Rights (ECtHR), which confirmed that there had been no violation of Article 3.Footnote 13
The uses of rhetoric
It is clear that the decision in N did not simply unfold from fundamental principles. Rather the conclusion of the House of Lords was arrived at by way of disanalogy. The facts of N were held to be insufficiently similar to those in D to allow the same rule to be applied in the later case. Analogy and disanalogy are familiar forms of legal reasoning.Footnote 14 But they are never logically compelling in and of themselves.Footnote 15 This is borne out by the opinion of the ECtHR minority in N. For the dissenting judges, the ‘practical realities’ of the case were that N would endure great suffering soon after returning to Uganda.Footnote 16 By contrast with the ECtHR majority and the unanimous House of Lords, they held that any difference with D’s case was merely superficial.Footnote 17 Whichever view of a precedent case is taken, judges are required to make a specific effort to show that their conclusion is plausible.Footnote 18 In doing so, they deploy a variety of persuasive strategies historically comprehended within the study of rhetoric.
By contrast with logical demonstration, rhetoric is concerned with things which admit of being otherwise (Aristotle, 1991, p. 77 [1357a]). It treats of the probable, not the certain; the reasonable not the rational. It focuses on the skill of a speaker, such as a judge or advocate, in crafting and presenting arguments. As such it offers a mode of reading cases sensitive to the common law’s traditional lack of system, as well as recent theoretical insights into contingency and indeterminacy in law.Footnote 19 It also allows us to relate a particular decision to its broader social and political setting, without falling into simple determinism. This is so because, as Kenneth Burke pointed out, persuasion is more likely where a speaker achieves ‘consubstantiality’ or identification with her audience.Footnote 20 She must show that she is ‘one of them’, speaking their language and sharing their values and understanding of the world.
In Peter Goodrich’s words, given this public dimension, rhetorical analysis can be seen as:
‘political criticism in its classical sense of the study of arguments related to the historical situation and immediate needs of the community (polis) to which the speech or discourse is addressed.’Footnote 21
This approach to health care law contrasts strongly with the dominant mode of analysis, which seeks to ground judicial and academic reasoning in timeless and universal principles of human rights and bioethics.Footnote 22 It is true, of course, that such principles have played a growing role in medical jurisprudence since the incorporation into British law of the European Convention on Human Rights.Footnote 23 But, in themselves, they do not offer much help in tracking the development of the relevant law in a given jurisdiction over time.Footnote 24 Rather, their exclusive use in commentaries tends to have a dehistoricising effect, obscuring the influence of concrete developments in culture, politics and the economy upon legal reasoning in this area.
Means of persuasion
Classical writers elaborated a range of persuasive strategies, focusing on the style of delivery, as well as the content and organisation of speeches.Footnote 25 I wish to focus here only on the so-called ‘forms of proof’. Each of these aims directly at establishing a relationship of consubstantiality between the speaker and their audience. Aristotle identified three such means of persuasion: logos (including shared common-sense assumptions), pathos (the audience’s feelings) and ethos (the speaker’s character).Footnote 26 Their deployment requires an exercise of skill and judgment on the part of the individual speaker. But, as will be seen, the means of persuasion available at any given time and place are socially produced. In examining each form of proof, I consider its specific relevance to health care law reasoning and, more specifically, the decision of the House of Lords in N.
In the theory of rhetoric, logos refers to the truth, consistency and plausibility of the argument itself (Hollander, Reference Hollander, Brooks and Gewirtz1996, p. 179). Its most important feature, for present purposes, is the topic or commonplace.Footnote 27 As the name suggests, these are common-sense assumptions, shared between speaker and audience, from which an argument can progress. The persuasive strength of a given topic depends on its timeliness, its relevance to the matter under discussion and the extent to which the audience addressed identifies with it. Specific topics constitute the tradition of any given discipline or subdiscipline, like law or health care law. Legal topics are heterogeneous in nature. They include precedent cases, statutes and constitutional provisions (Viehweg, Reference Viehweg1974, p. 31). The good faith practice of law dictates that these formal sources cannot be ignored (Hutchinson, Reference Hutchinson2000, p. 33). However, as was seen above, they never finally determine the outcome of a given case. The meaning and applicability of a given precedent, for example, has to be established using a range of argumentative resources (p. 189). These include a broader category of topics to do with the nature of reality and the values to be advanced in judicial decision-making.Footnote 28 Unlike the norms of positive law, topics of this sort cannot be said to be valid or invalid. Rather they gradually enter the law, just as they may gradually fade out of it. The implicit common sense of one period may thus become the object of criticism or ridicule in another.
Health care law is particularly suited to this kind of topical analysis. Its doctrinal substance is wholly borrowed from longer-established fields, such as tort, equity and criminal law. Historically its distinctiveness can be seen to lie in an underlying set of commonplaces to do with the nature of clinical work and the purpose of the health service. These include the notion that medicine is both a progressive science and a matter of ‘art’ or fine judgment.Footnote 29 In the following sections I argue that a further topic of ‘national space’ has characterised decisions concerning access to NHS care. These diverse topics were articulated by courts to justify and reinforce professional domination over patients and the health service as a whole. To this extent health care law reproduced and contributed to the broader common sense of Keynesian welfarism.Footnote 30 However, as the post-war welfare state is reformed, sovereign clinical judgment, the progress of medical science and the priority of national space are all challenged. These developments have had a substantial impact on the rhetoric of health care law
A speaker will use pathos in order to evoke emotions, such as pity, envy and rage, in order to gain the approval of the audience.Footnote 31 Pity is the most important of these emotions in the present context. According to Aristotle, it is apt to be felt by those who think they might suffer or who have suffered themselves.Footnote 32 Pity responds to the ‘great evils for which chance is responsible’, like death and disease.Footnote 33 It may be directed towards the speaker herself or a third party referred to in the speech. In either case, its successful evocation depends on there being sufficient proximity and identification as between the audience and the object of its pity. Pathos must not be confused with purely subjective emotion. Just as the rhetorical logos is made up of shared common-sense assumptions, so pathos draws upon public emotions, stock responses to specific situations (Barthes, Reference Barthes1994, p. 75). These responses are themselves ‘nourished’ by a common culture which produces and disseminates images of suffering and appropriate responses to it (Piper, Reference Piper1991, p. 738).
Pathos is not common in judicial rhetoric, which cultivates an air of neutrality and objectivity.Footnote 34 However, this is less true of health care law cases, given the pressing questions of life and death which they often raise. In such instances the court becomes a kind of theatre of human suffering.Footnote 35 The visible presence of the patient litigant helps to furnish the necessary element of immediacy between them and the audience. Indeed, owing to extensive media coverage, the audience for such decisions is unusually wide. Judges are increasingly aware that activists, religious bodies and the general public are listening in on their decisions, so to speak. Moreover, the public emotions likely to be called forth are both particularly intense and well nourished by media representations and interest group publicity. Given this context, judges often develop compensatory rhetorical strategies to contain the pathos aroused by the facts of the case at hand. It will be seen that this was an important feature of the reasoning in N.
Ethos emphasises the speaker’s status and authority in order to gain the confidence of their audience (Meyer, Reference Meyer1999, p. 10). It is implicit in the distinctive decoration of courtrooms and in the costuming of judges and barristers. It is also produced within the texts of decisions, as a connotation of the phrasing and the figures of speech used.Footnote 36 Peter Goodrich has demonstrated how many, ostensibly redundant, usages in legal speech tend to bolster the authority of the court in reaching a particular verdict.Footnote 37 Thus, controversial decisions on the withdrawal of medical treatment are often prefaced by ‘oratorical definitions’ in which the judge states what are fairly obvious limits to her competence, e.g. ‘this court is a court of law, not a court of morals’.Footnote 38 Such statements evoke a distinctive judicial character, one associated with careful deliberation and frankness, a sympathetic persona.Footnote 39 As Barthes puts it, while she speaks the orator must also keep saying, ‘follow me. . .esteem me. . .and love me’.Footnote 40 The specific characteristics (or virtues) valued in a speaker are not always and everywhere the same.Footnote 41 Like commonplaces, their persuasive force varies with the form of speech used (e.g. judicial or political), but also as between different historical periods and geographical locations.
In practice, any given argument will involve a ‘complex articulation’ of all three modes of persuasion (Meyer, Reference Meyer1999, p. 51). Each is prominent in the reasoning of appellate courts. Judges at this level are typically faced with problematic cases, where a novel interpretation of the common law or statute is sought, or where a ruling one way or the other will have significant social and economic consequences. The overall rhetorical effort will have to be commensurate with the novelty of the question. As well as showing mastery of formal legal sources, a judge will deploy imagery, figures of speech and common-sense assumptions to reinforce her argument.Footnote 42 However, the problematic nature of such cases often reveals that formerly well-established topics are no longer adequate to the task of persuasion. Frank assertions of judicial authority may be used to compensate for this decline in plausibility.Footnote 43 A new or alternative common sense may be articulated. Judicial innovation of this sort can also be understood as a form of political deliberation, often involving an appeal to the audience’s passions and sense of reasonableness. Health care law cases are particularly prominent in this regard, as they often involve distressing facts and morally controversial issues thrown up by scientific progress and attracting the attention of the general public. N was a clear example. Their Lordships deployed elements of pathos and ethos with some care in order to support their reassertion of the national frame for health entitlements. In the following section I consider the social and political origins of this territorially defined common sense and the important role of the NHS in producing it.
National space and the NHS
I claimed above that national territory is an important topic of health care law in Britain. The present section seeks to explain how it achieved this status. The explanation rests on a fundamental insight from human geography, namely that space is socially produced. The arbitrariness of this production is generally naturalised and hidden.Footnote 44 Specific spatial frames are widely shared and acted on, for example, by the population of a given territory. They are taken for granted, offering a common starting point for political and legal argument. However, this obviousness may be lost in times of economic crisis and political conflict. As a result of these struggles, new spaces and new scales are often created, rivalling or replacing existing ones and functioning as topics of a new rhetoric.
Social theorists traditionally assumed that space was a neutral and transparent medium, innocent of politics and history.Footnote 45 However, the ‘lived-in’ space of individuals and human societies cannot be reduced to the timeless, abstract space of mathematics and geometry.Footnote 46 As Henri Lefebvre argued, space is actively and continually produced by human intervention. He identified three ‘modes of spatialization’.Footnote 47. First, the material construction of space in the form of fences, houses, railways, factories and hospitals. This is the world as experienced every day through tactile, sensual interaction with matter. Second, representations of space in maps, plans and statistical tables. This is the world as conceived or ‘read’ by engineers, planners and public health specialists. Third, idealisations of space in myths, utopias and arcadias.Footnote 48 These are rooted in the emotional history of individuals and peoples. They ‘overlay physical space, making symbolic use of its objects’.Footnote 49 These three modes must not be seen as hierarchical. Each interacts with the others (Harvey, Reference Harvey2006, p. 131). Maps and plans decisively shape the built environment. Construction projects can destroy mythic landscapes or create new ones.Footnote 50
In contemporary society the state plays a central role in each mode of spatialisation. State institutions penetrate everyday life, creating the material, cultural and human infrastructure of the capitalist economy, as well as mapping the spaces thus created. The state seizes upon territorial myths and legends, reproducing them as its own.Footnote 51 The figure of the nation is at the heart of this spatialisation. As Nicos Poulantzas put it:
‘The modern nation. . .tends to coincide with the State and acquires flesh and blood in state apparatuses; it becomes the anchorage of state power in society and maps out its contours.’Footnote 52
The state produces the nation by producing the national territory, not just at the borders, but also within. The school system, transport authorities, the army and the broadcast media are good examples of these ‘state apparatuses’.Footnote 53 National curricula in history and literature, a uniform system of road signage, frontier posts and television weather maps all secure the common-sense nature of the national territory (Bourdieu, Reference Bourdieu2000, p. 97). In the rest of this section I will argue that the NHS has also functioned as a state apparatus of this sort, actively producing British national space in the post-war period.
Established in 1948, the NHS was the most prominent institution of the Keynesian welfare state in Britain.Footnote 54 It was created through the merger of innumerable smaller concerns, e.g. voluntary, charitable and local authority hospitals.Footnote 55 Local fragmentation was to be replaced by national ownership and regional organisation.Footnote 56 Direct lines of accountability would link clinical practice with the Secretary of State himself.Footnote 57 Moreover, it defined and sought to meet a uniform entitlement to health care across the territory. Under the old system the best hospital facilities were available where they were least needed. Access to care often depended on the location of the patient or their ability to pay.Footnote 58 Henceforth care would be funded out of general taxation and free at the point of use to all UK residents.
The NHS contributed to the production of the national scale in each of the three modes elaborated by Lefebvre. It created space materially through its standardised infrastructure of hospitals and clinics. It also represented space, in the (only apparently) mundane form of health statistics. These allowed the measurement of health inequality and health improvement across the nation.Footnote 59 Beyond this, in linking solidarity with citizenship, the Service contributed to an idealisation of national space. By putting care of the ill ahead of commerce, Britain was at the forefront of civilised nations. As Charles Webster put it, Health Service staff:
‘achieved a sense of corporate unity [believing] they were part of a prestigious national service, capable of achieving in peacetime something like the feats of collective action and patriotic sacrifice recently witnessed in the special circumstances of total warfare.’Footnote 60
Of course the actual contribution of the NHS to homogenising national space failed to match the ideal in each of three modes outlined above. Up to 1974 NHS resource allocation tracked the distribution of existing facilities rather than current need (Timmins, Reference Timmins2001, p. 339). Health inequalities, closely associated with class and occupation, persisted (Webster, Reference Webster2002, p. 221). Individual clinical judgment was privileged over more rational forms of resource use, leading to presumed, though often unmeasurable, divergences in health care provision (Newdick, Reference Newdick2005, p. 52). The Service was heavily dependent on staff directly recruited from former colonial territories, particularly in the Caribbean and South Asia (Doyal, Reference Doyal1979, p. 205).
Notwithstanding the shortcomings just discussed, the national scale remained pre-eminent in this period. Uneven and unequal access could only appear as objects of concern against the ideal of a truly ‘national’ health service. This is evident in the response of English courts to patients seeking judicial review of health care rationing. Courts uniformly rejected these applications on grounds of justiciability.Footnote 61 They held that allocation of resources at the macro-level was solely a matter for government. At the clinical level doctors had to decide. The finitude of resources that produced these cases was defined nationally. Thus Stephen Brown LJ, rejecting an attempt to compel the provision of more specialist nurses in a Birmingham hospital, held that:
‘This is not the forum in which a court can properly express opinions upon the way in which national resources are allocated or distributed. . .The courts of this country cannot arrange the lists in the hospital.’Footnote 62
Government and NHS planners were best equipped to decide on general allocation, not courts adjudicating on individual disputes.
The NHS and the crisis of national space
The Keynesian system in Britain and through the West went into crisis in the 1970s (Glyn, Reference Glyn2007). That crisis was expressed and resolved spatially through an extended process of rescaling .Footnote 63 This process is generally comprehended under the label ‘globalisation’. The neoliberal order which has replaced the post-war settlement is characterised by the breakdown of the relatively closed national space economy. But, though the national scale has lost its former predominance, no single scale has replaced it as the ‘primary pivot’ of economic activity, regulation or sociopolitical struggle (Brenner and Theodore, Reference Brenner and Theodore2002, p. 363). The local level has gained in prominence through an internal redifferentiation of national social space. The competitive ‘place marketing’ of cities is one example (Harvey, Reference Harvey1990, p. 89). So also is the trend to decentralisation and micro-autonomy in welfare delivery. Supra-state space has also thickened. Production and service provision are articulated across regional and global scales through outsourcing. To an extent this is enabled and contained by emerging regulatory regimes, such as the European Union (van Apeldoorn, Reference Van Apeldoorn, Brenner, Jessop, Jones and Macleod2003). Scalar denationalisation has also been effective in representations of space. The ‘global’ thus underpins a rhetoric of competitiveness aimed at higher productivity and lower wage costs. This does not mean, however, that the nation has lost all salience. On the contrary, competitiveness can only be promoted through the figure of different nations contesting for investment and employment. The state is profoundly implicated in producing the phenomena of globalisation.Footnote 64 Privatisation and the ‘opening’ of national economies, along with international and regional trade law, are all unthinkable without the practical and ideological contribution of governments and official institutions.
The relativisation of scales has also been evident in health care. There has been a significant withdrawal of the NHS from its former role in producing British national space. With the spread of autonomous Foundation Trusts and the Private Finance Initiative, the role of the Service in the material construction of space has dwindled.Footnote 65 Local innovation and corporate autonomy are used to justify diversity and unevenness. Critics claim that ‘reforms’ are interfering with the collection of population health data, as well as with mechanisms for ensuring equity of resources (Pollock, Reference Pollock2004, p. 223). Capacity to represent national health space declines accordingly. At subnational level new scales are called into being through the devolution of health related powers to assemblies in Scotland, Wales and Northern Ireland. As will be seen in the next section, the institutions of the European Union increasingly intervene to create common entitlements to provide and use health care services across the member states.Footnote 66 On the ideological plane the ‘national’ form of the NHS is routinely disparaged. Thus, it is said to be ‘the second largest employer in Europe after the Red Army’.Footnote 67 Market space, locally heterogeneous, but unbounded by national frontiers, is the new utopia (Levitas, Reference Levitas2007).
Again it must be noted that national government continues to play a vital role in the production of new health spaces. As with other privatisations it is engaged as the realtor of its own assets (Whitfield, Reference Whitfield2001, p. 74). Moreover, some reforms seem to reassert the national scale. For example a dense system of clinical regulation and standard setting has developed since 1997.Footnote 68 In England, for example, the Healthcare Commission functions as an inspectorate evaluating and comparing clinical outcomes in NHS facilities across the country.Footnote 69 The National Institute for Health and Clinical Excellence produces guidelines on the cost-effectiveness of medicines which determine prescription practice throughout the Service.Footnote 70 But, if the national hasn’t gone away, it is also true that it no longer retains the ‘taken-for-grantedness’ that it had in post-war health care (Jessop, Reference Jessop2002, p. 180). The consequences of these developments for rhetoric and ethics have been diagnosed by Nancy Fraser. She says that:
‘Although it went unnoticed at the time, [the Keynesian-national] framework lent a distinctive shape to arguments about social justice. Taking for granted the modern territorial state as the appropriate unit, and its citizens as the pertinent subjects, such arguments turned on what precisely those citizens owe one another. . .Today however this framework is losing its aura of self-evidence.’Footnote 71
This loss of ‘obviousness’ is a vital context of the reasoning in N. In the next section I explore the contested deployment of the topic of national space in that case. I compare it with a contemporaneous Court of Appeal decision which addressed patient mobility from Britain to other member states of the European Union.
The topic of space in N
According to their Lordships, the application in N was not primarily a demand to be free from deportation. It was instead an attempt to obtain medical treatment unavailable in her home country.Footnote 72 In Lord Hope’s words, to allow the appeal:
‘would risk drawing into the United Kingdom large numbers of people already suffering from HIV in the hope that they too could remain here indefinitely so that they could take the benefit of the medical resources available in this country. This would result in a very great and no doubt unquantifiable commitment of resources which it is, to say the least, highly questionable the state parties to the Convention would ever have agreed to.’Footnote 73
This reasoning clearly starts from a very specific understanding of space rooted in the common sense of the national territory. Lord Brown offered a more detailed outline of the cost to the UK of N’s treatment:
‘[a]llowing the patient to remain in the host state to enjoy decades of healthy life at the expense of that state [would constitute] an expense both in terms of the cost of continuing treatment (the medication itself being said. . .to cost some £7,000 per annum) and any associated welfare benefits, and also in terms of immigration control. . .’Footnote 74
Admittedly, as Baroness Hale noted, N was unaware of her HIV status on arriving in Britain. She was not, said her Ladyship:
‘a would-be immigrant who came here to benefit from our superior services.’Footnote 75
However, though sympathetic, this evaluation is also anchored in a topic of national space delimiting access to ‘our’ national medical resources; a territorially defined ‘we’ which produces and is entitled to health care. This concern with eligibility was raised in the well-known case of Re A (Conjoined Twins: Surgical Separation).Footnote 76 There Ward LJ felt obliged to reassure his readers and auditors that ‘the parents are not Kosovan refugees unjustifiably draining our resources’.Footnote 77 It is this Keynesian common sense, rearticulated in the face of a deterritorialised attempt to access care, that defeats the analogy N had sought to draw between her case and that of D v. UK. Lord Nicholls was explicit about this:
‘The essential difference [between the two cases] is not to be found in humanitarian differences. Rather it lies in recognising that article 3 does not require contracting states to undertake the obligation of providing aliens indefinitely with medical treatment lacking in their home countries.’Footnote 78
Selectively deployed, the national scale remains pertinent even (perhaps especially) under pressure of increasing global mobility.
This anxiety to secure the national frontier was reproduced by the ECtHR in N’s case. The majority held that:
‘a search for a fair balance between the demands of the general interest of the community and the requirements of the protection of the individual’s fundamental rights’
was inherent to the whole Convention.Footnote 79 Advances in medical science, as well as economic differences between regions of the world, meant that the level of treatment available could differ greatly depending on location. But Article 3 ECHR did not place an obligation on states to alleviate such disparities.Footnote 80 Interestingly, the dissenting judges in the Strasbourg court were equally concerned with the ‘floodgate’ argument. They sought, however, to show that it did not apply in this case. They quoted from UK asylum and immigration statistics to show that a humane decision in N’s favour would not lead to Europe becoming ‘the sickbay of the world’.Footnote 81
N concerns migration from the global south to the global north. Its assertion of the ‘national’ can be compared with the response of English courts to the movement of patients within the European Union. In Secretary of State for Health v. R (on the Application of Watts) Footnote 82 a patient was seeking NHS funding to travel to France for a hip-replacement operation. The European Court of Justice (ECJ) has long held that the freedom to provide services across borders guaranteed by the European law, implies a freedom on the part of the consumer to travel to receive services in another country.Footnote 83 Mrs Watts argued that, where such services are funded by welfare agencies at home, there is a duty on governments to fund ‘health tourism’ in such cases. The ECJ had already found such a duty where a patient could not be offered treatment at home ‘within the time normally necessary for obtaining it’.Footnote 84 The point at issue in Watts was whether national NHS waiting times would exclusively determine ‘the time normally necessary for obtaining’ treatment. The Court of Appeal suspected that they wouldn’t. It referred the case to the ECJ for a clarification of European law under Article 234 of the European treaty. In making the referral, May LJ noted the likely significance of such a finding for the NHS. Its effect would be to:
‘disrupt NHS budgets and planning and undermine any system of orderly waiting lists. . .[Furthermore] if the NHS were required to pay the costs of some of its patients having treatment abroad at a time earlier than they would receive it in the United Kingdom this would require additional resources.’Footnote 85
Since waiting lists were a product of scarce resources this extra funding could only be obtained if:
‘those who did not have treatment abroad received their treatment at a later time than they otherwise would or if the NHS ceased to provide some treatments that it currently does provide.’Footnote 86
May LJ’s fears were confirmed when the ECJ subsequently upheld Mrs Watts’s claim.Footnote 87 In the language of political economy used above, we can say that the European market scale triumphed over the Keynesian national scale in Watts, as it was bound to do, given the constitutional priority of European economic law over national law.Footnote 88
The politics of pity
Pathos plays an important role in their Lordships’ speeches in N. However, it was not deployed directly as a means of gaining the audience’s sympathy for N herself. To do so would have undermined the topic of national space reasserted by the House and thus, also, the decision to refuse her application to remain in the UK. Nonetheless, as discussed above, the facts of medical law cases often evoke pity or even anger, for example, at the behaviour of medical professionals or the law’s failure to offer relief to the patient. Furthermore, these intense feelings are likely to be widespread, given the high profile of such cases. As a result, pathos figures less as a positive strategy and more as a risk to be contained in judicial rhetoric. The nature of that risk can be explored with reference Hannah Arendt’s work on the history of revolutionary politics.
Arendt based her views on certain differences between the American and French revolutions. The aim of the former was to liberate individual men from tyranny; the aim of the latter was to free ‘the life process itself from the fetters of scarcity’.Footnote 89 She traced the immensely greater level of violence which followed the French revolution to this difference. After 1789, mass poverty was no longer simply a matter of fate and an object of charity. Its elimination became the central moral purpose of political change, taken up by thinkers and revolutionaries over the following two centuries. Arendt offered a trenchant critique of this ‘politics of pity’.Footnote 90 She argued that the great cruelty unleashed by the ‘social’ revolutions was precisely due to their instrumentalisation of sentiment for political ends. Boundless misery led first to boundless sympathy and then to boundless coercion in the attempt to eliminate it. ‘Pity-inspired virtue. . .played havoc with justice and made light of laws.’Footnote 91 The American revolutionaries, by contrast, had ignored social issues and avoided political sentiment.Footnote 92 Consequently, ‘nothing was permitted’ to them ‘that would have been outside the range of civil law’.Footnote 93
The risks presented by pathos to the House of Lords in N derived from just such a combination of politics and pity. Admittedly these were not of the same magnitude as the conflagration anticipated by Arendt, writing at the height of the Cold War. Rather they can be characterised as threats to the orderly functioning of the court and its sense of itself within the wider constitutional system. Though differing in intensity, they too can be seen to undermine legality and authority. For one thing, the strong feelings associated with pathos are held to be incompatible with objective deliberation. They lead to a ‘disproportion’ in judgment which favours prominent over more needy cases (Boltanski, Reference Boltanski1993, p. 27). For another, such applications offer a rallying point for social causes, whose prosecution would ‘politicise’ the work of the court, taking it well beyond its official task of adjudication. In the rest of this section I seek to show how the politics of pity were an important feature of N.
Luc Boltanski offers an insightful application of Arendt’s thought in the context of contemporary humanitarian campaigns. Drawing on this work it is possible to elaborate three key preconditions of a politics of pity.
(1) ‘The need for a face.’ Generalised presentation of a problem like the global AIDS pandemic is not likely to move audiences in the developed world. Statistics do not speak; they do not evoke feelings of pity (Boltanski, Reference Boltanski1993, p. 57). The engagement of spectators requires the visible presence of an identifiable, individual victim.
(2) ‘Exemplarity.’ There has to be a sufficient connection between the plight of the individual victim and the general problem. Though identified in her uniqueness, the victim must also be seen to be typical of the mass of sufferers (p. 28). Only thus will any subsequent intervention qualify as political.
(3) ‘Meaningful action.’ The intervention of the spectator to relieve suffering requires a medium of assistance (e.g. money) and an institutional vehicle for action (e.g. the banking system). However, these are abstract and impersonal forms, tending to distance the spectator from the individual victim and ‘swallow up’ their beneficent intervention. Accordingly, the action taken has to be shown to be effective in specific cases, as well as responding to the broader problem (p. 35).
Charities concerned with development and disaster relief attempt to meet these preconditions in their campaigning. They focus on named locations typical of a region or part of the world. For example, donors are encouraged to ‘adopt’ a child in an African village who subsequently corresponds with them.Footnote 94
Legal decision-making cannot be straightforwardly equated with charitable campaigning. Nonetheless, it is clear that each of the forgoing preconditions is met in N and cases like it.
(1) ‘The need for a face.’ As Tim Murphy has argued, the common law differs from other social sciences precisely through its reliance on individual disputes, rather than statistics, as a means of generating knowledge about the world.Footnote 95 Thus, in N a particular victim was brought before the court in person.Footnote 96 A detailed recitation of the painful facts of the case preceded and informed the doctrinal analysis.
(2) ‘Exemplarity.’ For Lord Nicholls, N’s:
Moreover, techniques of legal reasoning meant that N was reconfigured in general terms: first as an asylum seeker fleeing persecution in Uganda; and then as an applicant for relief under Article 3 of the European Convention on Human Rights. As such she stood in for a much broader class of victim.‘case as a would-be immigrant is far from unique. . .The prevalence of AIDS worldwide, particularly in Southern Africa, is a present-day human tragedy on an immense scale.’Footnote 97
(3) ‘Meaningful action.’ The process of abstraction just described means that decisions in such cases have (a potentially broad) precedential value. At the same time, however, a positive outcome to adjudication also confers a concrete benefit on a recognisable individual.
Thus, several important features of litigation and the legal form itself mean that a case such as N’s has the potential to convert the court into a ‘theatre’ for the politics of pity, as discussed above. ‘Theatre’ can be understood here in two senses.Footnote 98 First, as a stage for the display of human suffering and the evocation of sympathy in members of the audience (Marshall, Reference Marshall1984). Second, since the spectacle cannot be perceived neutrally, the court becomes a venue for global political struggles. It can be presumed that members of the House of Lords were aware of the broader ongoing politics of pity engaged in by charities and campaigning journalists. The facts of N’s case formed part of this wider spectacle of suffering. As such they threatened the court’s functioning as an ostensibly depoliticised zone of adjudication. In the next section I seek to show how the court addressed this risk by marginalising the politics of pity.
Beyond pity
There are four main ways in which the House of Lords sought to pre-empt the politics of pity in N: (1) they sought the sympathy of the audience for their own plight as decision-makers; (2) they suggested that the broader issues of access to essential medicines represented by the case were better addressed by bureaucratic, than individualised means; (3) they emphasised the capacity of the executive to refrain from exercising its power to deport; and (4) they substituted compassion for pity as an appropriate response to the plight of the applicant.
Ethos: sympathy for the judge
In a straightforward deployment of ethos, Lord Hope offered a negative oratorical definition of the tasks and competence of the court:
‘The function of a judge in a case of this kind. . .is not to issue decisions based on sympathy. . .[T]hey must not allow their decisions to be influenced by feelings of revulsion or sympathy, judges must examine the law in a way that suppresses emotion of all kinds. The position that they must adopt is an austere one.’Footnote 99
This seeks to bolster the status of the court, by relegating argument in the pathetic mode to the margins of the decision. Similarly, Baroness Hale stated that she could not allow the appeal, ‘much though [she] would like to do so’.Footnote 100 The question for the court, she said is:
‘How are we to distinguish between the sad cases where we must harden our hearts and the even sadder cases where to do so would be inhumane?’Footnote 101
An authoritative, reasoned decision would be reached. To reinforce the point, Lord Hope invokes the well-worn image of judges weighing and balancing:
‘[T]he fact is that there are at least two sides to any argument. The consequences if the decision goes against the appellant cannot sensibly be detached from the consequences if it is in her favour.’Footnote 102
The court, in other words, would not allow itself to be overwhelmed by feeling. As has been mentioned, such obvious rhetorical bids for authority are often made in novel or controversial cases. The judicial speaker is forced to address an audience wider than usual, including sections of the mass public, as well as legal professionals, academics and fellow judges (Goodrich, Reference Goodrich1986, p. 199).
The language of feeling is not absent from N. On the contrary, it is to be found in all of the judgments. Lord Nicholls accepted that the facts:
‘encompass much human misery. No one can fail to be touched by the plight of the appellant and of others in a similar position. The prospect facing them if returned to their home country evokes a lasting sense of deep sadness.’Footnote 103
These comments seem at first glance to be aimed at evoking sympathy for the applicant. However, on closer inspection it can be observed that ethos, rather than pathos, is the true mode of persuasion here too. In vivid, figurative terms, Lord Nicholls recounts the facts of the case and the probable consequences of deportation:
‘The cruel reality is that. . .if she returns to Uganda and cannot obtain the medical assistance she needs to keep her illness under control, her position will be similar to having life support switched off.’Footnote 104
This demonstrates that the judge accepts the very difficult nature of the case, and is not reluctant to convey this difficulty to his audience (‘esteem me’). Moreover, a judge who is not afraid to face these facts is one who can be trusted to reach a prudent decision in the case (‘follow me’). Lord Hope concluded on a similar note by avowing that he would ‘resist the temptation to remit this case for further consideration of the facts’.Footnote 105 The final character-based proof is the sympathy evoked for the judge faced with a tragic choice such as this. Like the members of his audience, he is a man of feeling, appropriately troubled by the consequences of his decision (‘love me’). In effect the audience’s feelings for N are redirected towards the judges here in order to bolster its sense of the court’s authority.
A bureaucratic alternative
According to Lord Hope, rather than drawing large number of HIV sufferers into the UK in quest of treatment, the:
‘better course. . .would be for states to continue to concentrate their efforts on the steps which are currently being taken, with the assistance of drug companies, to make the necessary medical care universally and freely available in the countries of the third world. . .’Footnote 106
This presents a second alternative to an open politics of pity, one addressed briefly by Arendt. She suggests that social issues are not best dealt with by political means. Any attempt to do so will generate all the risks of lawlessness and tyranny discussed above. Rather, insofar as human need enters the public realm, this must be a matter of administration ‘to be put into the hands of experts’.Footnote 107 The aggregate problem, and not the individual case, must be the focus of attention. It is in this spirit that Lord Brown prefaces his consideration of the facts of the case with a brief survey of the global scene:
‘There are an estimated 25 million people living with HIV in Sub-Saharan Africa (July 2004 UNAIDS report), many more million AIDS sufferers the world over. The prospects for the great many are bleak indeed.’Footnote 108
For Arendt, bureaucratic measures focused on statistics, rather than persuasion or revolutionary action, were the most appropriate means of relieving human suffering.Footnote 109 The ‘social question’ should be depoliticised and rhetoric replaced with the neutral and abstract language of science and policy.
Deus ex machina
Lord Brown concluded his judgment with the reflection that, although the Home Secretary could lawfully deport N, he was not obliged to do so:
‘The likely impact upon immigration control (and, doubtless, National Health Service resources) of an adverse Article 3 ruling would be one thing; the favourable exercise of an administrative discretion in this individual case would be another.’ Footnote 110
The possibility of clemency is raised here, though its exercise is solely a matter for government. The conflict of principle and sympathy might be resolved by a ministerial intervention in the individual case. As Raymond Williams argued, such expedient devices were a common feature of early Victorian fiction.Footnote 111 Structurally similar conflicts between the egoistic values of a predominantly commercial society and the sufferings of individual characters were often relieved through a kind of magic, in the form of an unexpected legacy or emigration. Of course, while these interventions resolved the immediate conflict, they left the dominant social values unchallenged in substance.
Compassion beyond rhetoric
None of the judges was unmoved by N’s plight. All spoke of their sympathy for her and their sadness at reaching the decision they did.Footnote 112 However, these feelings are better characterised as compassion rather than pity, to borrow another important distinction from Arendt. By contrast with pity, she argues that:
‘compassion. . .cannot reach out farther than what is suffered by one person and still remain what it is supposed to be, co-suffering. . .[It] can comprehend only the particular, [having] no notion of the general and no capacity for generalization.’
Unlike the politicised pity of campaigners and revolutionaries and unlike the topical reasoning of the law, compassion is not aimed at achieving agreement, it is not expressed in the form of an argument. It is gestural rather than discursive, even when expressed in words. As Arendt says:
‘Closely connected with this inability to generalize is the curious muteness or, at least, awkwardness with words that. . .is the sign of compassion in contrast to the loquacity of pity.’Footnote 113
The intimacy of compassion abolishes the ‘the worldly space between men where political matters are located’.Footnote 114 She draws a telling example from Dostoevsky’s The Brothers Karamazov.Footnote 115 In response to the Grand Inquisitor’s eloquent pity for suffering humanity, Jesus remains silent. He answers the troubled monologue only with a compassionate kiss.Footnote 116
As was seen earlier, rhetoric presumes a certain distance between speaker and audience. The compassionate gesture abolishes this distance, leaving no room for persuasion. We leave the realm of deliberative speech for the purely demonstrative, the personal and idiosyncratic.Footnote 117 By contrast, as we have seen, rhetoric is inherently social. The means of persuasion are collectively produced, so to speak. Topics embody a social common sense, typical of a particular group in a given period. In the present context we have seen the influence of the material and representational construction of space upon the logos of medical law. Pathos depends on shared emotions, imaginations ‘nourished from the same source’, including pity. The ideal character or ethos of the speaker is equally social.
Conclusion
This essay has used techniques of rhetorical analysis to illuminate the influence of social and economic change on reasoning in health care law. In particular it was seen that different spaces and scales have played an important role in shaping arguments about access to medical treatment. This was true, not only as regards the different topics of space invoked (logos), but also as regards the feelings likely to be evoked among audiences (pathos). The element of distance and its overcoming was a constant theme in this analysis. Obviously the physical fact of migration is likely to lead to ‘access litigation’, as in N’s case. On the level of discourse, it is clear that the common sense of national space has been deployed as a means of holding such migrants at bay. However, the declining persuasiveness of that topic was noted. Scales now multiply and compete. As the constructed nature of national space becomes increasingly evident, distance is relativised. On the one hand, European countries with little in common are to be united in a single community of health care users. On the other hand, a firm barrier is erected between Britain and the former colonies from which it has historically drawn material and human resources on the most favourable terms. These include medical knowledge and health care professionals.
Distance is also central to the deployment of pathos in judicial reasoning in this area. As was noted, the successful evocation of pity presumes a relationship of proximity or identification between sufferer and spectator. A number of factors serve to generate this proximity. Some are intrinsic to the operation of the common law itself. Others are a consequence of modern communications media and the educative campaigns of charities and other non-governmental organisations. With imaginations ‘nourished’ from a common stock of images and stories, people in the rich countries are capable of sympathising with identifiable victims of poverty and ill-health in poor countries. The overcoming of distance in this way presented risks which the House of Lords in N sought to avoid in different ways. On the one hand, the suggested bureaucratic solution would reinstate the gap between developed and developing nations. On the other hand, the demonstration of compassion for N made distance irrelevant by dissolving it in the immediacy of human feeling. Both moves tended to depoliticise and displace the question of access to essential medicines.
It is as well to end on a note of caution. Rhetoric offers a well-developed conceptual repertoire for reading cases in this area and linking them to their broader context. It does not, however, offer a fail-safe means of predicting the result of litigation in a particular conjuncture. Instead it highlights the substantive arguments and forms of presentation which are likely to be persuasive at a given time or place. The outcome is always contingent upon the skill of the individual speaker and the identity of the specific audience. We are always concerned with things that admit of being otherwise.
