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Authors

Lisa R. Hasday

Abstract

An oath represents the strongest possible commitment a speaker can make. In linguistic parlance, an oath belongs to a specific class of statements known as "speech acts" or "performative utterances." By their very articulation, such statements have the power to put their contents into effect. In short, "speech acts" do more than just say something; they also do something. By swearing an oath, for example, a person promises to perform certain actions in the world. This promise is all the more powerful if, as is usually done, the oathtaker swears upon some divine power and utters the oath in a public setting. Perhaps the most well-known example of an oath is the Hippocratic Oath - the famous code of medical ethics often taken by those about to begin medical practice.

This Article examines the use of this important text in contemporary judicial opinions. In these settings, the Oath does not promise to perform what it says, thus losing its quality as a speech act. We hear the voice not of the oathtaker but rather that of the court. The judicial references to the Hippocratic Oath create a kind of "secondary" performative effect that serves to convince the reader of the Oath's enduring legacy, even if courts do not abide by the Oath's literal words.

The main argument of this Article is that the Hippocratic Oath exerts a powerful influence on modem legal controversies implicating medical ethics, leading courts to adopt an overly doctor-centered view of these disputes. This doctor-centered view results from two distinct phenomena: first, the history and enduring legacy of the Oath have served to dignify the medical profession, causing courts to treat social issues as medical ones and to displace difficult ethical choices onto doctors; and second, judicial reasoning based on the Oath treats the patient as subordinate to the physician, because the text of the Oath itself places a greater emphasis on doctors than on patients.

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