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

Res Publica Vol.II no.1 [1996]

A TIME TO KILL: RONALD DWORKIN AND THE ETHICS OF EUTHANASIA

BRADLEY W. MILLER*

I. Introduction

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.

Despite his influence, Dworkin's arguments are not uncontroversial,

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).

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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.

II. The Sanctity of Life

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?

It may be useful to briefly summarise the key elements of the

3 Rodriguez, supra n.1, at 389. 4 R. Dworkin, Life's Dominion (London: Harper Collins, 1993).

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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.

1. The Traditional Concept of Sanctity of Life

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

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

5 Edward Keyserlingk, Sanctity of Life or Quality of Life (Study Paper, Law Reform Commission of Canada, Ottawa, DSS, 1979).

6 R.P. George, Making Men Morak Civil Liberties and Public Morality (Oxford: Clarendon Press, 1992), 19.

7 On the role of tradition in general, see A. MacIntyre, Whose Justice? Which Rationality? (Notre Dame, Ind.: University of Notre Dame Press, 1988).

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.

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.

10 Supra n.9.

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intention in this context, a brief digression on natural law theory may be helpful.

Natural Law

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 o f 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

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

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.

12 J.M. Finnis, "Natural Law and Legal Reasoning", in Natural Law Theory, ed. R. George (Oxford: Clarendon Press, 1992), 134-57, at 136.

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.

14 "Natural Law and Legal Reasoning", supra n. 12, at 147.


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

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 opt ion) 7

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

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.

16 Finnis, supra n. 12. 17 Supra n.6, at 8-9; also J.M. Finnis, MoralAbsolutes (Washington, DC: The

Catholic University of America Press, 1991), 43-44. 18 Finnis, supra n. 15, at 62.

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Intentions

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 o f 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

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

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 o f 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

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

Practice", in Gormally supra n.9, 1-107, at 48-50.


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 surgery and automobile travel are examples of activities which include death as a possible and foreseeable, though not desired, side-effect. 23

Innocence

The requirement of innocence means that the sanctity principle is not violated when the state and those it authorises use proportionate violence to resist unjust attack (such as when an enemy is killed in a just war, an attacker is killed in proportionate self-defence, or more controversially, a criminal is killed in the administration of public justice). 24 But while the sanctity principle provides no prohibition, there may yet be compelling moral reasons prohibiting taking life. Capital punishment, for example, though not a violation of sanctity, may nevertheless show inadequate respect for life. 25

Framed in this narrow way, the principle of sanctity of life is not limited by considerations of autonomy or economic expediency, and admits no exceptions. It can be characterised as absolute. Rooted in the natural law tradition, sanctity retains a coherence which is absent from the caricatures of that principle recently espoused by the House of Lords in B/and and the Supreme Court of Canada in Rodriguez.

Lord Goff understood the principle to say that "It is unlawful to kill (take another man's life)" and "Human life should be preserved if at all possible, by any available means, regardless of circumstances". 26 So stated, the principle would be vulnerable to the critique of McLachlin J. in Rodriguez that sanctity of life has never been an absolute in the common law, because it has admitted capital punishment and has never held anyone liable for an omission which caused death, except where there was a duty of care. Furthermore, McLachlin J., joined by the Law

22 "Act so that you treat humanity, whether in your own person or in that of another, always as an end and never as a means only", cited in Finnis, supra n.13, at 121.

23 Finnis, supra n.15. Also, supra n.9, at 48-50. 24 Supra n.9, at 39. 25 Supra n.9 at 39-41. Also Finnis, Fundamentals of Ethics, supra n. 13, at

124-33. 26 Bland, supra n. 1, at 367.


Reform Commission of Canada, concluded that as the sanctity principle has never been absolute, it is appropriate for it to be limited by "quality of life" considerations, i.e. considerations of personal autonomy and dignity. 27

But this alternative reading completely overlooks the significance of intention and innocence, which requires the principle to be stated in a narrow, absolute fashion. It also misunderstands the goals of medical practice. A primary goal of medical practice is the restoration of health and, where that is not possible, the palliation of suffering. 2s Respect for the sanctity of life has never required that life be extended as long as possible. Medical procedures which prolong dying and keep a patient alive while creating physical and psychological burdens out o f all proportion to any benefit they procure, do not form a part of either the sanctity principle or good medical practice. 29 In such a case, treatment may be withheld not because it is judged that a patient's life is not worth living, but because the proposed treatment entails burdens, such as pain or financial hardship, which he is unwilling to bear, or because he thinks the promised medical benefits are either too improbable or dispropor- tionately small to justify enduring the burdens. 3~

2. Dworkin's Revision

Professor Dworkin intends that his arguments should help diffuse the violent and seemingly intractable debates on abortion and euthanasia. His starting premise is that the debate should be shifted away from the entrenched and unresolvable dispute about rights, and towards common ground - - a shared respect for the sanctity of life. He is optimistic that a fresh look at the sanctity of life can provide a common commitment which will unify political communities and yield greater tolerance for individual choice, even though private and personal

27 Rodriguez, supra n.1, and the Law Reform Commission of Canada, Euthanasia, Aiding Suicide and Cessation of Treatment, Working Paper 28 (Ottawa: DSS, 1982), at 33.

28 J.M. Finnis, "Bland: Crossing the Rubicon?", Law Quarterly Review 109 (1993), 329-37, at 333.

29 See N. Pace, "A Practitioner's Overview", an unpublished manuscript presented at the University of Glasgow, Conference on "Death, Dying and the Law", 3 September 1994, at p.3.

30 Supra n.9, at 63-64.


disagreement on the morality of abortion and euthanasia may remain. 31

A Simple Definition of Sanctity

Dworkin argues that a societal consensus can be built around the principle of sanctity of life, by which he means that "it is intrinsically regrettable when human life, once begun, ends prematurely". 32 Notwithstanding this common ground, he foresees people will remain deeply divided over which actions show "wrongful contempt for the intrinsic value of life". Nevertheless he is optimistic that quiet toleration over personal differences as to the best application of a shared, cherished belief can replace the hostility which has characterised the legal and political battles over rights. Because sanctity is a "quasi-religious" concept, decisions as how best to satisfy it should be left to the individual, in the tradition of religious tolerance. The expected payoff, in the spirit of non-perfectionist liberal thinking, is that disagreement will shift from the public sphere to the private, where the individual is left alone to choose how sanctity is best respected in the unique circumstances of his life. 33

"Intrinsic Value"

Dworkin differentiates among three ways in which a human life can have value. The first is subjective value; that is the value that a person ascribes to her own life. The second is instrumental value; that which results from the contribution that a person makes to the lives of others. But thirdly, a human life has intrinsic value independent of whether it serves anyone's desires or interests; this worth is inherent and exists independently of anyone evaluating it as valuable. 34

The intrinsic value of a human being requires respect for the creative investment in that person. Dworkin recognises two distinct sources of this investment; the natural (understood as either divine creation or a secular "pulse in the mud") and the human. 35 As individuals, we are each a high achievement of the creation of God or nature, and we

31 Supra n.4, at 101. 32 Supra n.4, at 68-69. 33 Supra n.4, at ch. III, 34 Supra n.4, at 69. 35 Supra n.4, at 92.


become increasingly profound when our choices, participation in community, commitments, etc., make us more mature. This growth in our intrinsic value is the result of the application of human creative intelligence. 36

"Frustration" of Life

Dworkin further explains that this investment in human life, which gives it its intrinsic value and sanctity, can be "frustrated". Some cases of premature death are greater tragedies than others. The later in its term that a fetus is aborted, the greater the tragedy. Similarly, it is a greater tragedy for an adolescent to die than a newborn, and a greater tragedy for an individual to die at age 25 than at age 75.

Dworkin assesses the degree of tragedy with reference to the frustration of investment in that life. If a human being dies in the fetal stage, Dworkin maintains that both the natural and human investment in that life are lower than that in a mature woman who has been nurtured by a community and has made a substantial contribution to her own life through self-constituting choices. 37 Once those investments have been made in an individual, it is a shame, Dworkin says, when that individual dies before that investment has been substantially fulfilled. 38 Unfortunately Dworkin is a little vague as how to determine when, or to what degree, that investment is fulfilled. Perhaps he means to reference the use of a person to her community (such as a community which loses the services of its only surgeon, or a child who loses a parent), but more likely he means the degree to which the particular individual would feel that she accomplished her goals.

Dworkin carries on to say that investment in a life can be frustrated in ways which fall short of death. Human beings can be prevented from making the best use of the investment in them through physical handicaps, poverty, lack of opportunity, bad luck, etc. Dworkin contends that the main point of controversy surrounding the sanctity of life lies with the question of whether an avoidable, premature death is the most serious frustration of life. This is because people place different importance on the two "modes of creative investment in that life", the

36 Supra n.4, at 84. 37 Supra n.4, at 84-89. 38 Supra n.9, at 84-89.


human and the natural. 39

Dworkin explains the controversy underlying abortion and euthanasia by reference to the relative importance we each attach to the human or the natural investment in life. He submits that it can be "more frustrating of life's miracle when an adult's ambitions, talents, training, and expectations are wasted because of an unforeseen and unwanted pregnancy than when a fetus dies before any significant investment of that kind has been made". 40 Similarly, sanctity can be frustrated at the end of life. For life to be sacred means that it is terribly important that it go well. But if it is not going well, the individual shows greater respect for the human contribution in his life by having it terminated. 41

So to summarise, Dworkin asserts that most people believe life to be sacred, and he apparently believes that his extended redefinition of sacred is uncontroversial. His observation is that all agree that our lives have "intrinsic, inviolable value", although we are divided as to "which acts show respect and which disrespect for human life". 42 He interprets such decisions as "religious" and therefore too important to be imposed or limited by others. He advocates that decisions as how to best show respect for each life be left to the individual, in the spirit of religious toleration.

3. Criticism of Dworkin

Does Professor Dworkin succeed in his goal to reconcile diverging positions through demonstrating their common ground? By reference to the concept of legalism, we can see that his revision of "sanctity" is actually incompatible with the traditional principle. Further, it provides an individual with no guidance in decision making, and relies on a doubtful construction of the basic human good of life.

39 Supra n.4, at 89-94. 40 Supra n.4, at 93. 41 Supra n.4, at 215-216. 42 Supra n.4, at 28.

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Legalism and Sanctity

L~sm

Aspects of Dworkin's argument are intuitively attractive. In particular the question of how best to respect the principle o f the sanctity of life is an important one. It reflects an appropriate concern that society should serve people rather than rules, and engages the broader question posed by Zenon Bankowski of"what is the relationship between legalism and legality?" When do we "not think about it" and follow a rule, and when do we "think about it ' , exercise discretion and depart from the rule? 43 The essential starting point is to understand the aspirational quality of law. 44 Especially in a moral perfectionist or natural law understanding, 45 law serves the purpose of "making people moral" by encouraging people to make morally upright choices. At first compliance may be out of fear of legal sanctions, but ultimately the hope is that with the guidance of the law and the support of the resulting moral climate, people will freely choose morally correct options for the right reasons q which is true morality.46 Conformism and mindless obedience are not the desired ends of legal sanctions in the natural law tradition. 47

There is purpose behind law, and any other kind of rule. Blind obedience to a rule will not necessarily bring about the state which the rule is designed to encourage. Compliance with a rule must be within the spirit of the principle which that rule seeks to embody. And in this vein, Dworkin questions whether an absolute rule against killing in any circumstance will always best fulfil the principle of the sanctity o f life. Bankowski provides a useful analogy of a vegetarian who, as a rule, will

43 See Z. Bankowski, ~Don't think about it?: Legalism and Legality", Rechtstheorie Beihefi 15 (1993), 45-54.

44 Supra n.43. Also, St. Thomas Aquinas, Summa Theologiae I-II q.96, a.2; George, supra n.6.

45 Although Dworkin's liberalism also allows for limited paternalism: see R. Dworkin, "The Right to Death", New York Review of Books, 31st January 1991, 14-17 at 17 n.6; and R. Dworkin, ~Foundations of Liberal Equality", in 1989 Tanner Lectures on Human Values (Salt Lake City: University of Utah Press, 1989), vol. II, cited in George, supra n.6, at 102.

46 Supra n.6, at 28-35. 47 Supra n.6, at 43.


not eat meat. 4s The aspiration, or principle, behind this rule is to not cause unnecessary suffering to any sentient being. But the aspiration will not be fully instantiated by merely following this rule alone, and indeed there may even be instances when following the rule would be contrary to the principle. Such would be the case if, for example, the vegetarian was visiting a poor country and was offered meat by his hosts, at great personal cost to them. The vegetarian must consider both the consequences of his refusal (his hosts' humiliation) and his acceptance (the potential harm caused by eating the meat of an animal which he arguably cannot benefit) and then make a reasonable choice which is guided by the underlying principle of not causing unnecessary suffering.

When should "not thinking about it" yield to "thinking about it"? With respect to the issue of euthanasia, the answer to this question depends on the approach taken to human flourishing. If it is accepted that there are objective, basic goods, then principles of practical reason provide some guidance. The essence of practical reasoning is to eliminate choices which do not conform to moral norms. And this is not heteronomous; the basic goods are opportunities to excel at being a human b e i n g - - choosing how to participate in them is the essential purpose of autonomy. 49 Practical reasoning seldom points to one unique course of action, but it can clearly delineate the boundaries of acceptable options. 5~ The principle that one ought never to choose against a basic good comes into play here. "Thinking about it" must be consistent with practical reasonableness. The discretion to depart from some moral norm is to be exercised so as to better achieve some instantiation of a basic human good. But it is unreasonable to depart from a moral norm (such as "do not kill") with the purpose of better fulfilling some intermediate principle (such as "treat others as you would be treated") when any departure from the moral norm is morally excluded because it necessarily involves choosing against a basic reason for action (a basic human good). 51

The temptation is to "think about it", and unreasonably choose against the basic good of life, when emotions are engaged. And they are certainly engaged in the face of the suffering of the patient dying from

48 Supra n.43, at 8. 49 Supra n.13, at 124. 50 Supra n.12, at 145-48. 51 Supra n.12, at 148-50.


AIDS, and the tragic incapacity of the patient in a persistent vegetative state. A most natural response is to wish to accede to the requests of the person in such a condition, whatever those requests may be. But decisions as to the entitlement and content of justice are to be determined by reason and not emotion. It is important to not confuse emotional motives with rational motives. 52 "Thinking about it" is, above all, thinking. While Dworkin derides moral perfectionism as "... abstract judgment born in stony halls", 53 it must be preferable to an ad hoc "sanctity" which radically cuts away at justice.

"Sanctity"

Dworkin's restatement of "sanctity" formally pays great respect to the individual. He smuggles personal autonomy into the definition of sanctity, which then requires great deference to the desires of the individual in order to respect sanctity and affirm the value of that individual. Dworkin maintains that our moral norm of protecting the sanctity of life has been misdescribed; that there has never been a social practice of not killing. He seems to be saying that the rule against killing the innocent is just an imperfect manifestation of the principle that we should "do no harm", and by thinking about it we can see that we can fulfil that injunction in some situations by killing people. But on a close reading, Dworkin's project, while formally affirming the "intrinsic value" of the person, can be seen to gravely weaken the inherent worth of the person that is affirmed by the traditional notion of sanctity. 54

Adhering to the tradition of common morality does not necessitate an unthinking legalism. To be sure, on-going critical examination of our understanding of the formulation and application of principles of traditional morality is required to root out inconsistencies and contradictions. And an aspect of this is "thinking about" whether specific applications of moral and legal principles in prohibitions directed at specific individuals involve an unreasonable (and hence

52 J.M. Finnis, "The 'Value of Human Life' and 'The Right to Death': Some Reflections on Cruzan and Ronald Dworkin", Southern Illinois University Law Journal 17 (1993), 559-571, at 567-70. This is not to suggest that emotions form no part of rational deliberation; see supra n. 12, at 39-41 and supra n.6, at 9-10.

53 Supra n.4, at 213. 54 Supra n.9, at 121-23.


immoral) preference of some reason for actions over other, more fundamental, reasons; such is the error of legalism. But C.S. Lewis explains that the diagnosis of legalism must be made from within the spirit of natural law:

The legitimate reformer endeavours to show that the precept in question conflicts with some precept which its defenders allow to be more fundamental, or that it does not really embody the judgment of the value that it professes to embody. 55

And understanding these principles of natural law, which Lewis calls the "Tao" is essential to any modification:

Those who understand the spirit of the Tao and have been led by that spirit can modify it in directions which that spirit demands. Only they can know what those directions are. The outsider knows nothing about the matter. His attempts at alteration ... contradict themselves. So far from being able to harmonize discrepancies in its letter by penetration to its spirit, he merely snatches at some precept, on which the accidents of time and place happen to have riveted to his attention, and then rides it to death m for no reason that he can give. From within the Tao itself comes the only authority to modify the Tao. 56

Dworkin does not attempt to modi~ / the sanctity principle in any way consistent with a respect for the value of human life. He introduces to sanctity notions of au tonomy (which are merely instrumental to human flourishing) as some sort of Trojan Horse. His redefinition of the sanctity principle utterly empties it of its former content; the term which presently stands for the equal dignity of all human beings (regardless of how helpless, disabled, and imperfect) is to be changed to mean that some lives are to be judged to be worthless. While the judi- ciary in Canada, the US and the U K can be accused of straightforward error in their attempts to articulate the sanctity principle underlying our common morality, Dworkin offers a wholesale redefinition which is fundamentally hostile to the spirit o f that principle. The point is made forcefully in the Linacre Centre's "Submission to the Select Committee of the House of Lords on Medical Ethics":

The "sanctity" appropriated by Dworkin is now remarketed as a self- assertive sanctity.., parcelled out so as to ascribe to human beings a radical inequality of dignity . . . . Dworkin strives to deprive the common morality underlying our law about the protection of life of its very vocabulary, press-

55 C.S. Lewis, Abolition of Man (New York: Macmillan, 1947), 60. 56 Supra n.55, at 59.


ganging it into the service of the campaign to overthrow that law...57

The sanctity principle is a moral absolute which cannot, in the natural law analysis, be subordinated to notions of individual autonomy.

B. The Value of Life

For Dworkin there are degrees of the sacred; 58 his sanctity is not an absolute and has no fixed value. When Dworkin labels something "sacred" or "inviolable", he is not providing much information about it; this designation does not imply any particular minimum value. The life of an advanced Alzheimer's patient is sacred (i.e. terribly important) but without some further reference as to whether it is more or less sacred than some competing person or good, nothing can be deduced about what treatment or concern is owed to such a person.

While he stops short of explicitly saying that not all lives are equal in dignity, and thereby not all equally entitled to the protection of justice, a necessary implication of Dworkin's thesis is that a person who lacks the cognitive ability to make these self-constituting choices (such as the severely mentally disabled) will be unable to create significant value in her life.

It must follow then that a suicidal or euthanist choice cannot be contrary to the basic good of life when that life has no value. For Dworkin, life has no value when a certain mental element is not present. 59 The life of the Alzheimer's victim, for example, is "incapable of the acts or attachments that can give it value. Value cannot be poured into a life from the outside; it must be generated by the person whose life it is, and this is no longer possible for him."6~ I argue below that Dworkin's conceptualisation of the value of life is necessarily arbitrary, and that it relies on an indefensible dualism.

57 Supra n.9, at 122, note 8(2). 58 Supra n.4, at 80. 59 Vc'hile Dworkin's contention that life can have no value is placed in the

context of an autonomous request for death, the concept of the valueless life has necessary implications for involuntary euthanasia, as well as the creation of a moral climate which encourages people to make life terminating decisions (either in advance directives or contemporaneously) based on a vision which encourages them to feel worthless in themselves and a burden on society.

60 Supra n.4, at 230.


Arbitrariness

Dworkin contends that for a human life to have value the individual must have certain abilities which will enable her "to make something" of her life. But there are many such abilities, involving reflection, communication, and choice, and these are present in individuals in varying degrees. 61 Dworkin says nothing about which abilities must be possessed, and in what degree they must be present before the individual's life has sufficient value to outweigh the frustration it causes in the investment of some other life (or lives) with which it may be in competition. 62

When the issue is entitlement to justice (and in particular, to not be intentionally killed without just cause) the use of an ability as the criterion to determine who is entitled to justice must be arbitrary. Justice, in a traditional account, does not require of its subjects any particular abilities, and any discrimination based on an ability cannot be determined rationally. Such a discrimination can only result from using an arbitrarily chosen degree of proficiency in an arbitrarily chosen ability, and then granting or withholding justice to individuals based on whether they fall on either side of that line. Where the line itself is placed cannot be logically derived from the nature of justice. 63

Even if there were rational grounds to declare that cognitive ability should be the criterion to determine who is and is not a subject of justice, where ought the minimum threshold be set? With the person in the persistent vegetative state? It would be tempting to draw the line at those who are permanently unconscious, because they have no hope of ever engaging in meaningful communication, thought, or activity. But of course neither can those with advanced senile dementia formulate or carry out meaningful projects and communications. Neither of these possess Dworkin's requisite life-constituting abilities. But then at what stage of dementia should the line be drawn? Do we also include the severely mentally retarded? Why or why not? I do not raise these characterisation questions to demonstrate a "slippery slope" argument. It appears that even if cognitive ability could somehow leap the logical

61 L. Gormally, "The Aged: non-persons, human dignity and justice", in The Dependent Elderly, ed. L. Gormally (Cambridge: Cambridge University Press, 1992), 181-88, at 184.

62 Supra n.9, at 123. 63 Supra n.9.


hurdle and establish itself as the criterion for entitlement to justice, there is still no min imum standard of cognitive ability which logically determines who possesses sufficient mental capacity to be entitled to justice and not to be killed without just cause. Even with the most generous of assumptions, the dividing line remains arbitrary.

Dualism - - The Instrumentality of Life

Dworkin's theory, as well as the judgment of Hoffman LJ in Bland and Justice Stevens in Cruzan, use the premise that life is only instrumentally good and is simply a necessary precondi t ion to participating in the things which are inherently good. After all, people do not just wish to live but to live well. Life with any disability is emotionally unattractive, but life in a coma is radically removed from anything that we emotionally conceive of as good or valuable in the joy of integrated life. The temptation is then to leap from the understated reaction "such a life is not good" to the conclusion "such a life is not a good". But, again, whether life itself is good or merely instrumental to attaining other goods must be settled by reason and not emotion. 64

No one wants to be just alive, without being able to participate in any other goods, such as friendship, play, appreciation of beauty, etc. No one wants to be deprived of any goods. No form of existence (if it were possible) instantiating only one of the basic goods, to the exclusion of all the others, would be attractive. Even if an existence were possible whereby the good of life could only be combined with participation in one other good, such as knowledge, that existence would be shallow and unfulfilling compared with the richness of the life engaged in the inexhaustibly different means of participating in all the goods. But that does not demonstrate that life itself (taken apart from opportunities to participate in any of the other goods) or any of the goods (taken by themselves) would be only instrumentally good. 65 Friendship is a pre- condition to enjoying certain forms of play and co-operative effort. That does not make it purely instrumental to those goods. Friendship without the ability to play is not as full as friendship that allows for a fuller participation in the human goods. Similarly, life wi thout the capacity for friendship is not as full as it otherwise would be. Never-

64 J.M. Finnis, "Economics, justice and the value of life: concluding remarks", in Gormally, supra n.61,189-98, at 193-96.

65 Supra n.61,189-98, at 193-6.


theless, it is still life and is still a participation (albeit a damaged participation) in a fundamental human good.

To hold that life itself is not intrinsically good is to embrace a dualistic theory of the human person. Such a theory characterises human beings as inherently disembodied beings which only occupy and use bodies. Dworkin quietly assumes the controversial metaphysical position that life can be cleanly divided between "biological life" and "personal life" in much the same way that we would differentiate between a car and its driver. 66 But this is counter-intuitive; in the words of Germain Grisez, "(dualism) does not explain me; it tells me about two things, one a nonbodily person and the other a nonpersonal body, neither of which I recognize as myself'. 67 A human being is an organism which is thoroughly human. She is as human in the action of breathing as she is in the action of composing poetry. A loss or impairment of higher cerebral functioning does not reduce the individual to some other form of being which is less worthy of respect and justice.

It is dangerous to maintain a radical dualistic distinction, as Dworkin does, 68 between the person and the body. If the body is merely a vessel or tool, and if life is only instrumentally good, then there is no point in the continued life of the severely mentally disabled. 69 Indeed Dworkin explicitly says that where such a person has made an advanced directive, during previous mental competency, expressing a wish to die, that wish should be carried out. What he stops short of saying, but his argument gives no reason to deny, is that if life is only instrumentally good there is no reason not to kill all those "incapable of acts and attachments" that make life valuable. But if life is an intrinsic good, then choosing to kill a person is to harm that person, notwithstanding the attendant feelings of affection and compassion which lead to that choice, and is inconsistent with a rational love of that person. 70

66 G.V. Bradley, "Life's Dominion: A Review Essay", Notre Dame Law Review 69 (1993), 329-91, at 374.

67 G. Grisez, "Should Nutrition and Hydration Be Provided to Permanently Unconscious and Other Mentally Disabled Persons?", Issues in Law and Medicine 5/2 (1989), 165-79, at 173.

68 "The Right to Death', supra n.45, at 17. 69 Supra n.67, at 174. 70 Supra n. 67, at 174.


Dignity

The alternative to locating the value of human life in ability is, as previously stated, locating it in human nature. The traditional concept of the sanctity of life finds value in all human beings by nature of their being human. All human beings are o f equal worth and dignity, regardless of ability. But isn't it just sentimentality to say that someone in a coma, unaware and unable to control most bodily functions, has equal dignity to a thinking, creating, self-aware individual? To be in such a dependent state is to be removed from all that is thought of as pleasurable in life. However, to call it undignified, as Dworkin does, is to confuse the emotional sense of "dignity" with the rational sense of human dignity. 71

The emotionally repulsive aspects of being in a persistent vegetative state, such as being tube fed and surrounded by the mess of one's own excrement, reflects a desperate level o f dependence. But this emotional reaction does not lead to the conclusion that the person who tragically faces such an existence no longer has human dignity. 72 Rational human dignity is served when someone treats a disabled person as a human person; in actions and attitudes which express solidarity. This is to identify with a person and affirm that that person is a human being too, and her life, though tragically incomplete, has value. A distinction must be drawn between the undignified circumstances and the person whose dignity is something innate which no circumstance can remove. 73

Instead Dworkin says that such treatment is a harm to the patient, causing him to live out his life in a way which he did not want. TM But if life has value, to kill such a patient is to harm him. Certainly a patient can legally choose to refuse treatment, either in advance or contemporaneously if still competent, so as to forego what is owed him in justice.

71 Finnis, supra n.64, at 192-94. 72 Finnis, supra n.64, at 192-94. 73 On the distinction between emotional reactions and the rational

requirements of justice: "Neither solidarity nor justice can be maintained by reliance on sentiments of affection uninformed by recognition of duties of care to those who in the course of nature (because of immaturity and decline) are necessarily dependent and without a sense of responsibility for their own lives. The lives of many of us have depended at some stage on others recognising duties of care towards us, a recognition overriding any strong inclination to abandon care for us" (supra n.9, at 121 n.4).

74 Supra n.4, at ch. VII and VIII.


Such a sacrifice can be made by an individual who intends to spare those responsible for him the burden of his care. This does not authorise killing. 75

Of course none of this is to say that respecting the dignity of the severely mentally disabled requires that an individual (such as the mother of a permanently unconscious child) redirect all of her attention, time, and financial resources toward caring for the child, to the exclusion of caring for other children, or pursuing any personal ambitions. Nothing could be further from practical reason. One of the principles of practical reasonableness is to make no arbitrary preferences amongst persons; that is a requirement of impartiality among persons. 76 This leaves scope for self-preference, though not for bias. If the situation existed that (unlike in our relatively affluent society where costs of medical care are spread throughout the community) caring for such a child would mean that others were forced to go without necessities, it would be reasonable to use limited resources to care for those most likely to benefit.77 This is not to say that there are degrees of the s a c r e d - that some lives are intrinsically worth less. Practical reasonableness maintains the equal value in dignity of all human beings, but does not require that all of a community's resources be directed toward maintaining one individual.

C. "Sanctity" as a Guide to Action

What is the practical use of "sanctity"? The "shared ideal of the sanctity of life" cannot guide an individual's deliberations. The ideal is not a single, shared belief, but rather has competing, contradictory expositions which cannot be reconciled to each other. Dworkin's definition and the traditional understanding are not mere differences in emphasis between natural and human contributions; they contradict each other. So an appeal to an imaginary shared understanding provides no guidance in resolving morally significant questions. 78

Dworkin seems vague on whether or not an individual can use "sanctity" as a guide in making mortal decisions. To be fair, he does not

75 J. Boyle, "The American debate about artificial nutrition and hydration", in Gormally, supra n.61, at 28-46.

76 Supra n.11, at 106-107. 77 Supra n.67, at 169. 78 Supra n.9, at 122.

52 BRADLEY W. MII.I.ER

claim to provide an ethical theory. His primary purpose is in urging that such decisions be left to the individual whose life is in question, but insofar as he does attempt an explanation as to how individuals make such decisions, his theory is utilitarian. He repudiates a utilitarianism which simply maximises pleasure, as individuals are not motivated solely by physical experiences (which he labels "experiential interests") but by "critical interests" as well. Instead, he suggests that individuals make decisions based on convictions of how best to minimise the "frustration of life's miracle".

The incoherence of this injunction to minimise the frustration of life is perhaps most readily grasped through the example of abortion. Which would result in a greater frustration: the abortion of a fetus at four months, or the (temporarily/permanently) thwarted life plan (relation- ships, possible impairment of health, career, etc.) of the woman who will give birth and raise the child? To say that each individual woman must provide her own answer is to evade the question. How will she answer the question? How will she weigh the life of the child against the prospective trauma and disruption in her life? These goods are incommensurable; it is senseless and impossible to compare them. 79 All she can do is consider the future likely outcomes, with their possible joys and sorrows, and choose one or the other. She will have reasons to choose one option, and she will have reasons to choose the other, but she will not be able to put them on the same scale and weigh them. To tell her to minimise the frustration of life provides no guidance.

Looking at expected costs and benefits is useful only in limited circumstances. It is a technique which can work only when: (1) goals are well defined; (2) both costs and benefits can be compared using some definite unit (such as money); and (3) differences among the possible means adopted to achieve the goals can be treated as not morally significant. 80 In the above scenario, "frustrating life's miracle" as little as possible is not a definite goal (i.e. such that you can more or less know when you have achieved it, like earning a university degree) and there is

79 And this is not simply to make the epistemological complaint that it is impossible to foresee the benefits and burdens that would occur as a result of each option. On incommensurability, see J. Raz, The Morality of Freedom (Oxford: Clarendon Press, 1986), ch. XIII; also J.M. Finnis, J. Boyle, and G. Grisez, Nuclear Deterrence, Morality and Realism (Oxford: Clarendon Press, 1987), ch. IX.

80 Finnis, Grisez and Boyle, supra n.79, at 252.


no means available to compare the benefits to the fetus as against the costs to the mother and vice versa. Furthermore, even if there were commensurable criteria available, the differences in means cannot be ignored. A sound theory of morality cannot ever allow for a person to choose against a fundamental good.

However, Dworkin's appeal to "the abstract ambition to lead a good life" 81 suggests that he does not expect that individuals employ any sort of utilitarian calculation in making such decisions. But he does not offer any alternative to a utilitarian ethical theory. What then is the point of "minimizing the frustration of life"? It seems that he is urging that individuals be free to make a decision based on whatever emotional commitment or prior conception of human flourishing they may hold, and then simply use the injunction to "minimize the frustration of life" as a utilitarian rationalisation. His project, argumentation designed "to

/ " 8 2 succeed in the political realm , resembles less a "careful weighing of reasons" and more an excuse to do anything at all.

III. Autonomy

Even if it is accepted that Dworkin's restatement of the sanctity principle should be resisted, and that sanctity as it is formulated within traditional moral theory is inconsistent with involuntary euthanasia, what place is to be given to personal choice and autonomy? It is an easy conclusion that the sanctity principle must be an absolute bar to killing those who are incapable of choice. But I have also argued that sanctity is a moral absolute and, as such, cannot be limited by considerations of autonomy. This would preclude assisted suicide (where the life terminating act is performed by the patient herself), voluntary euthanasia (where the patient specifically asks to be killed) and advance directives (where the patient has included a suicidal provision which is effective when certain preconditions are fulfilled). What is the conception of autonomy in this tradition, and how does it differ from that incor- porated by Dworkin?

1. Autonomy and Liberalism

Respect for personal autonomy is a cornerstone of liberal political

81 Supra n.4, at 205. 82 Supra n.4, at 29.


and legal theory, and Dworkin stands in this tradition. Autonomy is popularly thought of as the good of being able to do what one happens to want, as opposed to being forced to submit to someone else's requirements. But in the liberal tradition, the good in autonomy is not achieved simply in satisfying whatever desires one may have at any given moment. It is not the satisfaction of desires, but the ability to make self- constituting choices which is the essence of personal autonomy. Raz describes personal autonomy as an ideal of self-creation; to be autonomous is to be the part author of one's own life. 83 Similarly Dworkin says that the purpose of autonomy, which he defines as "a right (of adult citizens) to make important decisions defining their own lives for themselves", is self-creation. 84 In choosing one's "values, commitments, convictions, and critical as well as experiential interests" we have the ability to shape who we become. 85

There is considerable controversy over the nature of autonomy; whether it is inherently or only instrumentally good. And this controversy has implications for how far (and whether) the state can legitimately restrict the options available for its citizens on moral grounds. Dworkin falls into an anti-perfectionist camp, which holds that autonomy is inherently good, and that this good is instantiated by the act of choosing, regardless of the morality of the choice that is ultimately made. Because of the value created by the exercise of choice, the state should not proscribe conduct simply because it deems that conduct to be immoral. It must be neutral as to competing conceptions of human flourishing, s6 In Dworkin's revision, the application of the sanctity principle in one's own life is categorised as a religious question, therefore removing it from the public sphere.

2. Dworkin on "Integrity"

In Life's Dominion, Dworkin derives the good of autonomy from "integrity". Integrity is explained through a brief sketch of what makes life worthwhile. To Dworkin, leading a worthwhile life is not just a matter of satisfying desires. He formally repudiates a utilitarian concept-

83 Raz, supra n.79, at 370. 84 Supra n.4, at 224. 85 Supra n.4, at 224. 86 Supra n.6, at 129.


ion of the good (the maximisation of pleasure/minimisation of pain) and distinguishes between what he terms a person's "experiential" interests and "critical" interests. Experiential interests are those pleasures which, though they add enjoyment to a person's life, are matters of taste and could very well be different from what they are without any loss in the quality of life. By contrast, critical interests are those which one feels that people in general "should" have because the absence of them would mean that life is less than it otherwise would be. Dworkin includes close friendships as an example. Although he is vague on this point, Dworkin implies that critical interests are not objective; that while each individual will have these critical interests, and that to her it will seem that all should share her interests, in fact what is a critical interest to an individual in one culture may not be a critical interest to another, s7

One wide-spread critical interest is that life should have a structure which expresses a coherent choice among experiences, achievements and connections; this is what Dworkin labels "integrity". Part of life's value lies in the "integrity" that, having lived a particular way, an individual ought to go on living that way. Acting out of character for gain or to avoid trouble (i.e. selling out) is to show insufficient self-respect. 88

One aspect of Dworkin's restyled "sanctity" is that to respect the sacred character of another person's life, you must not interfere with their apparently victimless choices as how to end life. Dworkin's appar - ent purpose for integrity, with respect to euthanasia, is to provide a basis to legitimise the killing of those who (though they formerly expressed a contingent desire for euthanasia, and though that contingency has been fulfilled) seem content with life and presently have no desire to die. Integrity requires that we respect "precedent" autonomy; the formerly competent person's past decision as to how she should to be treated if she should become demented. Such precedent au tonomy takes precedence over her later decisions. In Dworkin's words:

We might consider it morally unforgivable not to try to save the life of someone who plainly enjoys her life, no matter how demented she is, and we might think it beyond imagining that we should actually kill her ... We might have other good reasons for treating (her) as she now wishes, rather than as ... she once asked. But still, that violates rather than respects her autonomy. 89

87 Supra n.4, at 202-206. 88 Supra n.4, at 202-206. 89 Supra n.4, at 228-29.


Incredibly, respect for autonomy and integrity as Dworkin conceives it may require that we kill those who strongly desire to live.

3. Integrity and Practical Reason

Dworkin's concept of "integrity" resembles two of the requirements of practical reason; that an individual should have a coherent life plan, and that an individual should have commitment and not abandon his goals lightly. To distinguish between practical reason and "integrity", beyond the fact that there are several principles of practical reason which "integrity" does not subsume, it is important to take note of what Finnis calls the "transparency" of practical reason. 90

The transparency of practical reason means that the reason that it is good to engage principles of practical reason, such as to have plans and to not abandon them lightly, is because such commitments are a form of participating in the basic goods. To pursue the goods in another way, i.e. with neither thought nor commitment, would result only in a very inadequate realisation of those goods. This external aspect of practical reasonableness is simply the principles of how to participate well in the other basic goods. However, practical reasoning is not purely instrumental. While its purpose is partially fulfilled in shaping one's participation in the other goods, engaging in the self-constituting discipline of following principles of morality in making commitments, selecting projects and choosing means to carry them out is a basic good itself. 91 "Integrity" is the principle of "commitment" of practical reasonableness taken to fanaticism; that once particular goals cannot be fulfilled, life itself should be abandoned.

Something is intrinsically valuable if it provides a basic reason for action. Autonomy itself provides no reason to follow one path rather than another; the bare fact of having a choice among options does not indicate which option should be pursued. A course of action does not become morally good simply because it was freely chosen. 92 But does the notion of integrity change this? In natural law morality, "integrity" could not justify the life terminating actions which Dworkin says it requires. The purpose of the principles of practical reason which

90 Fundamentals of Ethics, supra n.13, at 70-74. 91 Supra n.12, at 100. 92 Supra n.6, at 178.


"integrity" most closely resembles is for the more perfect pursuit of the basic goods. A commitment to do x is good only because x itself is good. Similarly a commitment to do y could not be good (but instead unfortunate, a waste, damaging) if y is not good.

There is also an inherent value in the commitment itself, but it lies in the benefit which the individual receives (the strengthened character, etc.) as a result of using practical reason. The inherent value is exhausted in the choosing of the commitment and continued resolve to maintain the commitment. Once the individual is mentally incapacitated (by Alzheimer's for example) it is senseless to talk of the continuing benefit of that individual living (or dying) according to some past choice. The inherent benefit of practically reasonable decision making is no longer available, and if death itself is not a good, then there is no good to be furthered by others carrying out the prior request for euthanasia. So what Dworkin says about the good in respecting the integrity of the Alzheimer's patient is simply sentimentality. And at the same time he denies the attainable good of the continued, although gravely impaired, life of that person.

Obviously, whether one believes that au tonomy is inherently valuable will shape how one looks at a request for euthanasia. If one believes that there are human goods which a human being must participate in order to flourish, then it is difficult to see why options which threaten this flourishing should be permitted. 93 The basic goods are not a threat to autonomy; rather they are

... no more and no less than opportunities of being all that one can be. So far from being heteronomous, they are in fact the worthwhile "self" that one may constitute by one's self-determination, i.e. by the free choices towards which all one's practical reasoning is directed. 94

When a perfectionist view is taken, then the fact of the desire of the individual patient for assistance in suicide or euthanasia cannot be determinative of the issue. Just because someone wants something does not mean that the state should permit it. In the words of Joseph Boyle:

... many people seem to believe that a patient's decision about his or her health care is morally justified just because it is an exercise of the patient's will. This sort ofvoluntaristic subjectivism seems plainly false, whatever its appeal in popular ethical discussion: the simple fact that a person wants

93 Supra n.9, at 131. 94 Supra n.13, at 124.


something or decides on something has no tendency to make it right. 95

As emotionally difficult as it is to deny the request of someone who is suffering, to accede to the request is not to benefit them. To kill in this situation is to harm, and the exercise of autonomy towards such an end is empty.

The role of the physician's judgment in such a case must also be kept in mind. A physician would not agree to assist every patient who wished to end his life. An individual suffering from treatable depression, for example, would be given medication and referred for counselling. A physician would not assist in a suicide or perform euthanasia unless she agreed with the patient that the patient's life was truly not worth l iv ing- - was valueless. But such a conclusion is inconsistent with upholding the principle that all human lives are of equal worth and dignity. 96

IV. The Moral Perfectionist Conclusion

In the foregoing, I have argued that a traditional concept of the principle of sanctity of life, anchored within the natural law tradition, should be maintained against Dworkin's revision. It provides a superior basis for justice for those most vulnerable and dependent. Dworkin's theory has great explanatory power; it no doubt accurately explains how many people think in the realm of euthanasia. But where Dworkin shifts from the descriptive to the normative, his argument should be resisted. I have also argued that a necessary corollary to the traditional concept of sanctity is an understanding of autonomy in the natural law tradition. In this tradition autonomy does not require that individuals be free to request euthanasia or assistance in suicide. Even though euthanasia may be immoral according to the central tradition of morality, it does not necessarily follow that it should be illegal. Natural law tradition recognises that morality and law are not co-extensive. 97 However, a legitimate purpose of law is to foster a cultural milieu (George) or social forms (Raz) which encourage people in their efforts to achieve the basic goods. State neutrality as to the good is an impossible

95 J. Boyle, "The American debate about artificial nutrition and hydration", in Gormally, supra n.61, 28-46, at 42.

96 Supra n.9, at 131-132. 97 Supra n.6, at 32.


and undesirable illusion. It is the responsibility of the state to choose wisely among the competing notions of human good which it can foster. 98

Raz rightly argues that autonomy must be exercised within a framework of constraints; it does not require the availability of immoral options. The government promotes the good when it acts to protect morally valuable social forms because it is preserving a morally valuable option for choice. This is true even if the government must restrict other options in order to promote what it judges to be morally valuable. Autonomy can exist only where there is a culture which recognises and supports social forms, in which individuals can pursue their goals, supported through public attitude and formal institutions. For example, while a monogamous marriage is permitted in a polygamous culture, it is nevertheless more difficult for an individual to maintain marital fidelity in a non-supportive or hostile culture. Therefore the state has a legitimate interest in proscribing certain conduct if it deems it necessary in order to protect a morally valuable option which would otherwise be much more difficult to attain. 99

Similarly, it will be more difficult to preserve the option of life for those already marginalised by their dependence, when they face the subtle (or overt) pressure to relieve others of the burden of caring for them. John Keown quotes Professor Leenen, a Dutch jurist, in observing that a doctor cannot be sure that any request for euthanasia is unpressured: "He does not know about emotional influence from the family ... He never knows about the annoyance which patients can be to the nursing staff sometimes." 100

None of this is to say that there is only one possible life plan or mode of human flourishing to which each individual must subscribe. Instead it merely states that while there are many morally valuable forms of human flourishing which are incompatible with each other, there are some options which will not be morally valuable, and must be restricted in order to preserve those which are. This means that in any community there will be significant limitations on the liberty of all. It will not be possible for all to pursue the good as they see fit, especially when their

98 Raz, supra n.79, at ch. 1. 99 Supra n.6, at 163-4. 100 J. Keown, "Some reflections on euthanasia in The Netherlands", in

Gormally, supra n.61, 70-100, at 79.


desired path will have a destructive impact on others. 101 It is obvious that prohibiting involuntary euthanasia, i.e. the killing

of those who are incompetent and have not requested death, is a straightforward question of justice. But it is less obvious why the state should prohibit assisted suicide or euthanasia where the individual has requested it either contemporaneously or in an advance directive. As argued earlier, it is not possible to permit euthanasia without broadcasting that there is such a thing as a valueless life. This will bring about a change in our understanding of the sanctity of life (such as that advocated by Dworkin) such that those who are disabled and vulnerable will be made to feel that they are of no value and are a burden to society. It will be difficult to maintain the sanctity of the individual in such a climate. And this is not treating the person who wants euthanasia as inferior to other members of society. Affirming the value of life is part of the common good, and the common good is the good of the individual seeking euthanasia too. He benefits as much as anyone else from the maintaining of a culture which affirms equal human dignity, and this culture cannot exist without collaboration, common endeavour, and common restraints. 102

And finally, although I join Professor Dworkin in consciously declining to consider any detailed legal proposals for euthanasia, I will briefly note a prudential concern. 109 Even if active voluntary euthanasia were not morally wrong, a case for its prohibition could be argued on the prudential grounds that its legalisation would lead to involuntary euthanasia and abuse of any established safeguards. Such fears seem to be confirmed by recent experience in the Netherlands, where doctors performing voluntary euthanasia will not be prosecuted if they follow certain guidelines, and where a government survey reported in 1990 there were 1000 cases of "life-terminating acts" without the explicit request of the patient. 104 Such statistics are rather chilling when read together with a recent report of an American sociologist who, embracing Dworkin's dualistic distinction between natural and human investment (which she terms "biological" and "biographical" life) concludes that

101 Finnis, supra n. 12, at ch. VI. 102 Supra n.6, at 99. 103 For a fuller discussion of policy considerations, see Y. Kamisar, "Some

Non-Religious Views Against Proposed 'Mercy-Killing' Legislation", Minnesota Law Review 42 (1958), 970-1039.

104 Supra n. 100, at 82.


... (economic) decisions are made based on biographical potential ... The demented, the decrepit, and those who have outlived their capacity for meaningful interaction, are all low priority ... Thus human economic decisions are quietly conveying important latent messages about the need for and appropriateness of aid in dying for those who can make no compelling case for their continuing use of scarce resources. 205

When it comes to the legalisation of voluntary and involuntary euthanasia, I am sceptical that we can have one without the other, and I submit that sound ethical and legal theory suggests we should have neither.

105 B. Logue, "Physician-Assisted Suicide: A Social Science Perspective on International Trends (Summary)", unpublished manuscript presented at University of Glasgow Symposium on "Death, Dying and the Law", 3 September 1994, at 3-4.

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