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David Orentlicher & Tamara Hervey (eds.), The Oxford Handbook of Comparative Health Law (2022).

Every field of law has some comparative law studies, including health law. A search in the legal databases gives several hits using the keyword comparative health law; in other words, comparative law is ‘hot’. However, the comparison is often limited to a single topic (medical negligence, euthanasia, patients’ rights, etc.) and a limited number of jurisdictions. The added value of the Oxford Handbook of Comparative Health Law is the comprehensive nature of the study: a wide range of related topics within contemporary health law is addressed (regulating public health, health financing, health services and facilities, pharmaceuticals, the patient-provider relationship, new medical technologies, and end-of-life decision making). The editors opted for a so-called transatlantic approach, specifically comparing the United States and Europe. This choice is justified by the differences and similarities between the legal frameworks of health law in these regions. All in all, this is an ambitious project, partly because the legal rules can differ considerably between states and at the country level.

It is precisely the scope and quality of the legal comparison conducted that allows this Handbook to make a valuable contribution to the understanding and resolution of contemporary issues within health law. Mistakenly, health law issues are often approached exclusively as unique to the legal system in question, but the difference in manifestation does not make the issue any different in other jurisdictions. The question that needs to be asked first is why a particular legal rule is shaped differently in form and substance in different national jurisdictions. With respect to such explanatory research, as described by Dannemann: “Generally speaking, the (comparative) analysis should seek to explain differences and similarities as they arise from the description of the legal systems under consideration, so that whoever has predominantly found similarity, will predominantly have to explain similarity, whereas those who have predominantly found differences, will predominantly have to explain differences”.1

Viewed in this way, the legal comparative analysis must ultimately lead to an explanation of how the various jurisdictions relate to one another.2 This is by no means an easy task, because the health law framework ‘is sensitive to its local environment’ (P. 3), and cannot operate without acknowledging political, cultural, economic and historical considerations. The ideal model is to explain legal phenomena without ignoring the multidisciplinary factors that distinguish countries. In this way, statements can be made about the relationship between legal systems, and about which legal arguments or ‘best practices’ can be adopted with a view to ‘making things better.’ (P. 50.) This functional approach within contemporary comparative law underlies this Handbook. (Pp. 4-5.)

The Handbook is structured according to five themes: a general conversation on paradigms of health care systems, such as individual liberty and solidarity in health care, market competition, state vs. self-regulation, etc. (part One); followed by the law preventing ill health (part Two); treating ill health (part Three); regulating the development and use of medical treatments (part Four); and finally, healthcare at the beginning and end of life (part Five). The choice of this format is determined by the definition of health law and reflects the ongoing discussion on the object of research: health or healthcare? Here, the editors have opted for what they call a combination of ‘pragmatism and principlism.’ (P. 8.) As a consequence, the topics addressed reflect endogenous legal principles (such as human rights) when discussing topics such as public health law, inequalities in health care access, quality of care, information and consent, privacy and medical confidentiality, medical research with human beings, organ donation, procreation, abortion, and end-of-life decision-making.

The Handbook’s approach seems more principlism-driven than pragmatic, however. The pragmatic approach – covering topics affecting healthcare systems, such as antitrust law and regulated competition, health care fraud, regulation of medical devices, and medical malpractice – is incomplete and therefore less convincing. In a way, the editors have struggled with the pragmatic approach, as there are many other branches of law and socioeconomic factors that influence health and healthcare. A more conceptual approach structured according to the patient-provider-financier triangle might have been more helpful in that respect. But one cannot criticize the editors for that choice. What matters is that the Handbook discusses almost all of the most important themes within health law on both sides of the Atlantic Ocean.

Finally, the question: what can we learn from the comparative analysis? Common introductions by topic challenged the authors to think critically about whether there are lessons to be learned from the diverse contexts in which health law is situated and practiced. One of the unsurprising conclusions is that there is no universal concept of health law, but rather a “field of health laws.” (P. 13.) Moreover, there are a number of common principles/values, approaches, and areas of convergence, apart from the differences in jurisdictions. These differences do not so much indicate a conceptual distinction between the US and Europe. Rather, they are mostly explained by the interpretation of state sovereignty and federal unity — i.e. the division of powers at the federal and state levels, respectively, between the EU/Council of Europe and member states. (P. 13.) These lessons confirm that we cannot simply transplant health law concepts to another societal context, but must respect the contextual differences when bringing good ideas home. That is perhaps the most valuable contribution of this voluminous Handbook.

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  1. G Dannemann, Comparative Law: Study of Similarities or Differences? in: The Oxford Handbook of Cpomparative Law 416 (M Reimann and R Zimmermann eds. 2006), as quoted by M Adams, Wat de rechtsvergelijking vermag (in Dutch), Ars Aequi 192, 192 (March 2011).
  2. Id. at 192.
Cite as: André den Exter, Health Law: A Transatlantic Dialogue, JOTWELL (May 26, 2022) (reviewing David Orentlicher & Tamara Hervey (eds.), The Oxford Handbook of Comparative Health Law (2022)),