A time to kill: Ronald Dworkin and the ethics of euthanasia

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<ul><li><p>Res Publica Vol.II no.1 [1996] </p><p>A TIME TO KILL: RONALD DWORKIN AND THE ETHICS OF EUTHANASIA </p><p>BRADLEY W. MILLER* </p><p>I. Introduction </p><p>In recent years the highest courts in the United Kingdom, the United States and Canada have each been forced to contend with deeply contentious philosophical issues such as: what is it about human life that gives it its sacred character? what is it about human beings that makes justice our due? what does respect for individual autonomy and the sanctity of human life require? 1 These are not issues with which our courts are comfortable. 2 In order to understand the philosophy (and the discomfort) underlying recent decisions on euthanasia and assisted suicide, it may be useful to consider the recent arguments offered by Ronald Dworkin. The Supreme Court of Canada makes explicit reference to Dworkin in Rodriguez and Dworkin makes extensive reference to Cruzan in developing his theory on euthanasia. </p><p>Despite his influence, Dworkin's arguments are not uncontroversial, </p><p>Barrister and Solicitor, Bell Spagnuolo and Company, 560-2755 Lougheed Highway, Port Coquitlam, British Columbia, Canada, V3B 5Y9. See Rodriguezv. British Columbia (Attorney General) (1993) 107 D.L.R. (4th) 342; AiredaleNHS Trusty. Bland [1993] 2 W.L.R. 316; and Cruzan v. Director Missouri Department of Health (1990)110 Supreme Court Reports 2841. Increasingly, especially in the lower courts, our judges lack any significant education in moral philosophy. The leading Canadian political philos- opher, the late George Grant, cautioned that "When society puts power into the hands of the courts, they had better be educated ... The more the justices quote philosophy or religious tradition the less they give the sense they understand what they are dealing with." ("The Triumph of the Will", in A Time to Choose Life: Women, Abortion and Human Rights, ed. Ian Gentles (Stoddart: Toronto, 1990), 9-18, endnote 3 at p.213, as cited in Iain Benson, "Medical and Legal Ethics: Objective Truth and Subjective Schooling", Focus 15/1 (1994), 12-23). </p></li><li><p>32 BRADLEY W. MILLER </p><p>especially in his reading of the concept of the "sanctity of life". Before engaging Dworkin's revision, I will give an account of the traditional principle of the sanctity of life, drawing heavily on natural law theory. I will then trace Dworkin's argument for euthanasia through his account of the sanctity of life, and his related concepts of "intrinsic value" and the "frustration of life". I will use an argument against "legalism" to demonstrate that despite his assurances to the contrary, the traditional concept of the sanctity of life and Dworkin's redescription of that principle are radically opposed to one another. I then move to the point that Dworkin's restyled "sanctity" locates human dignity in human ability and relies on arbitrary and suspect metaphysics to do so. I conclude that such a theory encroaches on the value of life and places at risk those people whose weakness makes their continued existence dependent on the commitment to the traditional principle by the relatively powerful. My critique of Dworkin continues with a contrast of his concepts of "autonomy" and "integrity" with principles of practical reason. Finally, I draw from the foregoing a conclusion as to the desirability of legalising euthanasia. </p><p>II. The Sanctity of Life </p><p>When the question of the constitutionality of the criminal prohibition of assisted suicide in Canada was recently put before the Supreme Court of Canada in Rodriguez, the court took the opportunity to affirm that the state has a legitimate interest in protecting human life, and that the "fundamental conception of the sanctity of human life" in Western culture requires that human life should not be depreciated by allowing life to be taken. 3 But Sopinka J. took care to point out that when he speaks of the sanctity of life, or says that life is %acred" or "inviolable", he uses these terms in the non-religious sense described by Professor Dworkin in Life's Dominion ;4 that human life has a deep intrinsic value of its own. Although the reference to Dworkin is just in passing, is it accurate for Sopinka J. to equate Western culture's "fundamental conception of the sanctity of human life" with Dworkin's account of that principle? </p><p>It may be useful to briefly summarise the key elements of the </p><p>3 Rodriguez, supra n.1, at 389. 4 R. Dworkin, Life's Dominion (London: Harper Collins, 1993). </p></li><li><p>RONALD DWORKIN AND THE ETHICS OF EUTHANASIA 33 </p><p>traditional concept before considering the extent to which Dworkin is consistent with it, and whether or not his departures offer any advantages in terms of justice and guidance for end of life decisions. </p><p>1. The Traditional Concept of Sanctity of Life </p><p>The principle of the sanctity of life, as reflected in the common law, has been shaped historically by the Christian tradition. 5 To come to understand the traditional principle, it is perhaps best to place it within the context of what Sir Isaiah Berlin refers to as "the central tradition of western thought" and what others have called the natural law tradition. 6 While an account of the sanctity principle from a natural law perspective is admittedly controversial, it is arguably the tradition which is responsible for the sanctity principle as it has come to be embodied in our legal tradition, and it cannot be understood coherently if it is wrenched from that tradition. 7, s </p><p>The heart of the principle is simply that "one ought never to kill the innocent (that is, one ought never to adopt any course of action or omission intended to terminate the life of an innocent human being). "9 The dignity conveyed by this principle applies to all human beings by virtue of their nature, and not their abilities, and therefore applies to all human beings equally. 1~ It is important to take note of what is meant by "intention" and "innocence" in the above definition. To understand </p><p>5 Edward Keyserlingk, Sanctity of Life or Quality of Life (Study Paper, Law Reform Commission of Canada, Ottawa, DSS, 1979). </p><p>6 R.P. George, Making Men Morak Civil Liberties and Public Morality (Oxford: Clarendon Press, 1992), 19. </p><p>7 On the role of tradition in general, see A. MacIntyre, Whose Justice? Which Rationality? (Notre Dame, Ind.: University of Notre Dame Press, 1988). </p><p>8 I do not provide any defence of natural law theory here, and I will attempt only a brief summary of some key concepts. By "natural law theory" I mean the particular restatement developed largely by John Finnis and Germain Grisez. References to works by Finnis, Grisez, Robert George and others should point the reader towards a satisfactory exposition and defence of this tradition. </p><p>9 Linacre Centre for Health Care Ethics, "Submission to the Select Committee of the House of Lords on Medical Ethics", in Euthanasia, Clinical Practice and the Law, ed. Luke Gormally (London: The Linacre Centre, 1994), 111-65, at 119. </p><p>10 Supra n.9. </p></li><li><p>34 BRADLEY W. MILI.I::R </p><p>intention in this context, a brief digression on natural law theory may be helpful. </p><p>Natural Law </p><p>In the natural law tradition, practical reason provides guidance for morally significant choices. At the most abstract level, reasons for action are constituted by the basic human goods. 11 Human flourishing is the integrated pursuit of these basic human goods. But these goods can be pursued in indefinitely many ways; they yield many reasons to adopt many purposes to achieve indefinitely many goals. The possibility of pursuing many rationally appealing goods, together with the finite limits of human beings, creates (and necessitates) the possibility of choice. 12 One of these goods, the good of practical reasonableness, includes the intermediate principles which lead the individual on reflection to identify more specific moral norms. 13 </p><p>Identifying one possible option as morally wrong (because, for example, it involves choosing against a basic reason for action) does not mean that there is a single option which is uniquely right. 14 While practical reasoning will sometimes lead to the conclusion that a particu - lar course of action is morally obligatory, more often it will merely foreclose the consideration of some courses of action, leaving open to the </p><p>11 In John Finnis' account these include life, knowledge, play, aesthetic experience, sociability (friendship), practical reasonableness, and "religion"; J.M. Finnis, Natural Law and Natural Rights (Oxford: Clarendon Press, 1980), ch. IV. </p><p>12 J.M. Finnis, "Natural Law and Legal Reasoning", in Natural Law Theory, ed. R. George (Oxford: Clarendon Press, 1992), 134-57, at 136. </p><p>13 Finnis argues for nine basic principles of practical reasonableness. They are: (1) have a harmonious set of orientations, purposes, and commitments; (2) do not leave out of account, or arbitrarily discount or exaggerate, any of the basic human goods; (3) do not leave out of account, or arbitrarily discount or exaggerate, the goodness of other people's participation in human goods (i.e. have no arbitrary preferences among persons); (4) do not give any particular project the significance which belongs only to a basic good; (5) do not abandon your commitments lightly; (6) do not waste opportunities through unnecessary inefficiency; (7) do not choose directly against a basic human good; (8) promote the common good of your communities; and (9) follow your conscience. See J.M. Finnis, Fundamentals of Ethics (Oxford: Oxford University Press, 1983), 75; supra n. 11, at ch. V. </p><p>14 "Natural Law and Legal Reasoning", supra n. 12, at 147. </p></li><li><p>RONALD DWORKIN AND THE ETHICS OF EUTHANASIA 35 </p><p>individual a vast range of options. So while practical reasoning will not provide absolute affirmative duties, it can furnish negative moral absolutes. 15 The remaining options are morally indeterminate; none are unreasonable. The choice among them will not be rationally grounded (in the sense of "morally required") though they will still be reasoned and have rational appeal. 16 </p><p>A choice is fully rational when it is not only made for a reason, but is also not contrary to any conclusive moral principles. In an immoral choice, rational choosing is often fettered by emotion which is usually coupled with a reason, or moral norm, which has been defeated by a conclusive moral principle. Rationalisation is rational, in that it involves following a reason, but it is unreasonable (in the sense of immoral) in that it fails to give adequate regard to other reasons which are conclusive against the chosen option) 7 </p><p>One principle of practical reasoning is to never choose (intend) to damage some instantiation of a basic good, either in yourself or in another. To so choose would be contrary to the reason for action which that good provides. As participating in the basic goods provides the rational motivation for all human endeavour, it is unreasonable (and therefore immoral) to choose against that reason. You cannot choose contrary to a reason unless you have a rationally preferable reason to choose otherwise. But where the reason to act is a basic human good, then there cannot, by definition, be a rationally preferable reason to choose against it. 18 </p><p>15 This is to be distinguished from F.A. Hayek's epistemological point that it is not within our cognitive capacity to know and choose good, and therefore we can only refrain from doing wrong (see Z. Bankowski, "Ambiguities of the Rule of Law", in Issues of Law and Morality, ed. H. Jung (Berlin: Forum Verlag, 1991), 101-12, at 105). The point from practical reasonableness is that even if we do know how to do good, some possible instantiations of good will be mutually exclusive, and we must choose among them. Therefore some possible good will not be pursued. Given finite human ability, we cannot have moral absolutes requiring that all good be done. See J.M. Finnis, "Intention and side-effects', in Liability and Responsibility, ed. R.G. Frey and C.W. Morris (Cambridge: Cambridge University Press, 1991), 32-64, at 63. </p><p>16 Finnis, supra n. 12. 17 Supra n.6, at 8-9; also J.M. Finnis, MoralAbsolutes (Washington, DC: The </p><p>Catholic University of America Press, 1991), 43-44. 18 Finnis, supra n. 15, at 62. </p></li><li><p>36 BRADLEY W. MJLI.FR </p><p>Intentions </p><p>So although we can avoid choosing to harm an instantiation of a basic good, we cannot avoid harming the participation in some goods (either in ourselves or others). Some harm is inevitable because of our finite capacities; every chosen action will have negative side effects. Some possible participation in a good will not be chosen. Therefore we cannot eliminate the possibility of harming a participation in a good from our reasoning. Accepting these harms caused to basic human goods will only be against reason (and immoral) if doing so is contrary to a moral norm which applies regardless of intention (such as the so-called Golden Rule; you must not be unfair in which side-effects you accept). We therefore have discretion as to which bad effects to accept. 19 </p><p>To intend to kill is to choose to kill, either as an ultimate goal or as a technique chosen to accomplish a particular goal. "Intention" is used in the sense of all that is chosen, both end and means, and not used in the artificial sense of the law of negligence that all that is foreseen and accepted is intended. 20 You do not intend to kill if the choice to kill does not enter into your deliberations (your choice of an end or means), even if killing is foreseen as a possible (or certain) consequence of your chosen actions. Such is the case when a doctor administers narcotics to relieve pain, knowing that as a side-effect the patient's life will probably be shortened. 21 </p><p>This is not to say that as long as death is not intended you can therefore cause it with a clear conscience; there are other moral norms to consider. The principle of sanctity simply allows for the possibility of causing death in a blameless, though foreseeable, fashion. It does not say that any unintentional killing is morally blameless. It is only one of several moral norms which must be respected. You could not (blame- lessly) make space for yourself on the sidewalk by pushing someone else into an oncoming car in the road. While the resulting fatal accident would not have been intended, in that it was neither the goal (which was to make room for yourself on the sidewalk) nor the technique (which was to push someone else out of the way) and therefore not a breach of the sanctity principle, you would nevertheless be guilty of at least </p><p>19 Supra n.18, at 62-4. Also supra n.6, at 17. 20 Finnis, supra n.15, at61. 21 The Linacre Centre, Report of a Working Party, "Euthanasia and Clinical </p><p>Practice", in Gormally supra n.9, 1-107, at 48-50. </p></li><li><p>RONALD DWORKIN AND THE ETHICS OF EUTHANASIA 37 </p><p>treating the victim unfairly (in breach of Kant's second formulation of the categorical imperative; 22 i.e. as someone whose physical well-being is of less importance than your immediate ease of transport). Heart sur...</p></li></ul>