In their book Identity, Personhood and the Law,1 authors Charles Foster and Jonathan Herring seek, among other things, to show that the law is based on overly simplistic assumptions about the nature of personal identity. In their Author Meets Critics précis, they summarise the main contentions of the book on this issue. Difficulties in the law’s simplistic approach are, they claim, exposed when we think about people with dementia, ‘where [in advanced cases] I may turn into a person with no (...) apparent continuity at all with my own self’ and where: > X2 will simply inhabit a body composed of some of the same cells as belonged to X1. Deep brain stimulation ‘may similarly transform ‘my’ attributes to such an extent that it seems false to continue to talk about ‘me’ at all.’ Other examples, including cases of patients suffering severe anorexia or who have fallen into a permanent vegetative state, are given. All of them ‘call into question the atomistic, billiard-ball model of identity used by the law and by our uninterrogated intuitions.’ The authors’ approach is to begin with these and a number of other examples and raise several philosophical and ethical issues. They then discuss the issues and develop principles which they apply to the same examples at the end of the book. In this commentary, I cannot do justice to all the claims and challenges to the law the authors make in their rich and highly recommended book. I will focus only on the issue of personal identity and their remarks about the simplistic assumptions made by the courts on this issue. Although my comments will not always be in agreement with theirs, these remarks should be taken …. (shrink)

Charles Foster and Jonathan Herring are to be congratulated on their useful presentation of the roles played by concepts of personhood and identity in English medical law.1 However, I fear that the project they have undertaken here is misconceived. It is an interesting and important misconception, which is widely shared in the literature on medical law and ethics; but a misconception it remains. The problem is this. What we call ‘the Law’ is in fact a complex assemblage of institutions, rules, (...) accredited persons, practices and systems. What it is not is a self-sufficient, integrated and self-interpreting system of doctrine. As such it does not have a clear structure which we can excavate and the idea that we can find concepts which explain and unify that structure at some deep level is thus quixotic. To approach ‘the Law’ in that way is to pursue a chimaera. We should instead think of ‘the Law’ as Wittgenstein taught us to approach a language.2 We can find concepts through investigation of language in practical use, but the …. (shrink)

In English law there is a strong presumption that life should be maintained. This article contends that this presumption means that it is always unlawful to withdraw life-sustaining treatment from patients in permanent vegetative state and minimally conscious state, and that the reasons for this being the correct legal analysis mean also that such withdrawal will always be ethically unacceptable. There are two reasons for this conclusion. First, the medical uncertainties inherent in the definition and diagnosis of PVS/MCS are such (...) that, as a matter of medical fact, it can never be established, with the degree of certainty necessary to rebut the presumption, that it is not in the patient’s best interest to remain alive. And second, that even if permanent unconsciousness can be unequivocally demonstrated, the presumption is not rebutted. This is because there is plainly more to human existence than consciousness. It can never be said that the identity of the patient whose best interests are at stake evaporates when that person ceases to be conscious. Nor can it be said that the best interests of an unconscious person do not mandate continued biological existence. We simply cannot know. That uncertainty is legally conclusive, and should be ethically conclusive. (shrink)