03 November 2011


'The Scope and Limits of Legal Intervention in Controversies Involving Biomedicine: A Legal History of Vaccination and English Law (1813–1853)' by Ubaka Ogbogu offers a concise account of the role of law and politics in the adoption of smallpox vaccination in Britain in the early Victorian period, when legislation was passed to enforce compulsory infantile vaccination.

Ogbogu states that -
The primary thesis of the study is that law, and the processes through which it is created and maintained, provide a distinct “envelope of social order” (Jasanoff 2008, 764) within which competing and duelling interests and opinions about scientific innovation find origin, expression, and debate. Consequently, the manner in which law responds to science and its impact on society is neither static nor self-evident, but subject to mutable circumstances that are historically, politically, and socially situated. The paper is divided into two main parts. The first provides a brief history of vaccination and the second focuses on events surrounding the introduction of compulsory vaccination laws in England and Wales.
He concludes that -
The history of vaccination policy and practice in England in the first half of the 19th century reveals that law played a central role in the development of the notions of public health and state medicine. Faced with the terrifying smallpox epidemic, the state turned to law to fashion responses that were both authoritative and scientifically informed. However, the application of law to the problem of infectious disease was neither calculated nor coherent. Legal intervention was made possible through the efforts of a few individuals and/or groups with parochial agendas rather than through concerted state action, and the form of intervention ranged from adoptive to coercive policies. More strikingly, legal intervention was initiated and implemented without deep consideration of its social significance or consequences, or of other policy options for combating smallpox, such as education. This regulatory approach set the stage for social opposition to vaccination measures and state medicine, and operationalized the inordinate and often controversial focus on law as a tool of public health governance that is still evident to this day.

Furthermore, support for the application of law to the smallpox dilemma was largely based on statistical evidence of the effectiveness of vaccination. There was hardly any reliance on scientific facts about vaccine safety and efficacy in the legislative debates. Pro-vaccination MPs simply substituted generalized statistical comparisons of pre- and post-vaccination mortality rates for core scientific evidence about vaccine safety and efficacy. This approach is hardly surprising given the context of the times; vaccination as popularized by Jenner was an empirical remedy, and proof of its efficacy was established by successful case studies rather than through rigorous scientific examination of the modality of vaccination.

Finally, law did not play an “outsider” role in relation to the social controversies provoked by the ban on inoculation or by the adoption of vaccination. As cases such as Pilcher and Allen make clear, many of the disputes associated with vaccination in 19th century England were provoked by legal intervention. Rather, the machinery of law provided a distinct social setting within which various competing interests found expression and in some cases, recognition. Indeed, the anti-vaccination movement was as much a response to the authority of law as it was to the “scientific” and social implications of vaccination.