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of high quality research’ at the top of the ‘evidence hierarchy’ (Fulford, 2004, p. 215).
Additionally, the Cartesian notion of the body as a machine has remained central to
medical practice (Kennedy, 1981). Through this paradigm, the doctor approaches
disease as a mechanic approaches an engine and illness is perceived as mechanical
failure (1981, p. 20-21). This reductionist approach may also have influenced the
primacy of value-free methods in health care contexts where scientific evidence is
perceived to provide all the solutions.
Similarly, the idealised model of legal decision making is the technical, objective and
scientific approach, thought to lend neutrality and legitimacy to legal process (Kairys,
1992, p. 13). To achieve this end, legal mechanisms (such as the elaborate and
mystifying rules governing precedent) have developed which aim to eliminate or
objectify values. In the positivist environment, the judge is portrayed as a neutral
instrument of the law and “impartiality and the appearance of it are the supreme
judicial virtues” (Devlin, 1979, p. 4; emphasis added). What has resulted is what Kairys
has described as ‘the myth of legal reasoning’ (1992, p. 12-13).
The problem is not that the courts deviate from legal reasoning. There
is no legal reasoning in the sense of a legal methodology for reaching
particular, correct results. There is a distinctly legal and quite elaborate
system of discourse and body of knowledge, replete with its own
language and conventions of argumentation, logic and even manners. In
some ways these aspect of the law are so distinct and all-embracing as
to amount to a separate culture, and for many lawyers the courthouse,
the law firm, the language, the style, become a way of life.
But in terms of a method or process for decision making – for
determining correct rules, facts or results – the law provides only a wide
and conflicting variety of stylised rationalisation from which courts pick
and choose. Social and political judgements about the substance, parties
and context of a case guide such choices, even when they are not the
explicit or conscious basis of decisions.
Fact and reasoning methods alone can never be sufficient to guide our decisions,
particularly in ethically challenging questions about, for example, withdrawing life
sustaining treatment from adults in a persistent vegetative state, or sterilising women
with learning disabilities. From a moment’s self-reflection we know that values have an
integral and necessary role in the decisions we make in our every day lives. There also
exists a considerable body of research demonstrating that individual values are
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