Debating Death #1: Should liberal societies legalize euthanasia?

This is a first in a series of “Debating Death” articles which thematize ethical, political, medical, legal, social and cultural aspects of legalizing euthanasia.

It is commonly understood that liberal societies are based on a concept of negative liberty. The notion was first introduced by Hobbes in Leviathan where he defined it simply as “the absence of impediments [i.e. external constraints] for motion”. A more sophisticated definition came from a liberal champion Isaiah Berlin in his essay Two Concepts of Liberty. Here, negative liberty is defined as “freedom from interference of others”, where “others” usually are the States, social groups, individuals etc.

The logic behind this is that there should be spheres of action in which individuals are left alone so that they can determine themselves what is good for them and how they want to act. The only constraint is that they don’t “harm” others or infringe on their freedom.

On the other hand, positive freedom is a freedom for and implies some concept of the good to which all human actions should strive. As George Weigel says “freedom is the method by which we become the kind of people our noblest instincts incline us to be”. Liberals usually reject the notion of positive freedom out of fear that some universalist concept of the human nature or of the good will be imposed on the individual by others (State, religious authorities, dominant social groups etc.).

Philosopher Charles Taylor, Winner of 2007 Templeton Prize

Although the concept of negative freedom in its crude form has serious limitations, it still rests on a valid proposition. As Charles Taylor puts it, it is the “idea that each person’s form of self-realisation is original to him/her, and can therefore only be worked out independently”. Since each person is an autonomous being, he or she can perfectly determine his own goals and form a conception of a “good life” for himself. He doesn’t want the State to do it. We surely don’t want the others, and especially not the State, to tell us should we be philosophers or businessmen (some mothers would obviously object to that) or should we spend weekends working or having leisure.

But, there are other spheres where this concept is seriously limited. The fear of Totalitarian Menace, as Taylor calls it, shouldn’t prevent us from recognizing that some degree of positive freedom is necessary for every society. The concept of negative freedom itself already implies that we positively value self-determination. But, negative freedom by itself still doesn’t ensure that the self-realization will be achieved. We need a whole framework of “rights” and principles which we value positively, and which ensure that the negative freedom will be respected. Each society must rely on at least some positive values and basic principles in order that the “protection of freedom” makes sense.

This framework of basic values is usually codified in the national Constitutions and international human rights declarations and treaties, such as United Nations Universal Declaration of Human Rights (UNUDHR) or European Convention on Human Rights. For this reason, UNUDHR in its Preamble states its intent to set  “a common standard of achievement for all peoples and all nations”.

Negative liberty and euthanasia

Now, the question arises whether the liberal states should legalize euthanasia out of respect for individual autonomy and self-determination? If we adopt the concept of negative liberty as freedom from interference, then it seems obvious that the State should not interfere if someone has decided to end his life in the way he considers most appropriate. Finally, everyone should be free to define his own concept of a “good life”.

First what we can notice here is that euthanasia doesn’t want to prevent others from interfering if I choose to die. On the contrary, it wants to make them complicit. You can obviously take your own life without anyone knowing (and interfering), but quite the other thing is to ask the State to grant you the right to be killed by another person, usually a doctor.

What we are considering here is not the “right to die”, but the “right to be killed by a doctor” or the right to be supported in suicide. It is not just a private matter because, as Daniel Callahan says, “euthanasia requires two people to make it possible and a complicit society to make it acceptable.”

The state could grant you different wishes as “rights”, but there are obviously limitations to that. Let us suppose that by an autonomous and rational decision I decide to sell myself in the slavery. In my “calculus of happiness,, ” this seems like a profitable option and no one other apart from myself is harmed. Also, let us suppose two rational and consenting adults agree to have a duel (to death) to defend their honor. In both cases law wouldn’t allow that (and most of us would agree that it should stay so) even though only one who could get harmed is the one who freely and autonomously agreed to it.

This is so because the State cannot legalize something which is in direct contradiction with the basic framework of values and principles the society accepts and promotes, and which give meaning to the exercise of the negative liberties. We cannot freely agree to be slaves since it contradicts the basic value framework of our society in which slavery is against human dignity and thus forbidden.

Similarly, euthanasia contradicts one of the basic rights contained in every Human Rights document, which is a right to live. The UN Universal Declaration of Human Rights, European Convention on Human Rights and all other international human rights documents recognize the right to life as one of the fundamental values of the society which should be preserved and protected.

As John Finnis in his testimony in front of UK House of Lords noted, this right rests on a “rational principle that a person’s life is the very reality of the person, and whatever your feelings of compassion you cannot intentionally try precisely to eliminate the person’s reality and existence without disrespect to the person and their basic equality of worth with others.” I cannot make a State to grant me a wish which contradicts this right and this principle because this would undermine the very essence of justification of rights and freedoms in the society.

Legal Scholar John Finnis

European Court of Human Rights explicitly confirmed this in its judgment in the case Haas vs. Switzerland from 2011. There it stated: “Article 2 [of the Convention] guarantees no right to die, whether with the assistance of a third party or of the State; the right to life has no corresponding negative freedom.”

Abolition of Autonomy

In the end, what happens is that in the search for the autonomy of the individual, this very autonomy becomes abrogated. As Finnis in his article Euthanasia, Morality and Law says: “But healthy Americans who demand assistance in suicide, or actual euthanasia at the hands of medical personnel, will find themselves being told… that, well, after all the right belongs not to those with an autonomy interest in defining their own concept of existence and so forth, but to people whose lives are no longer worth living and, that means whose lives are no longer worth living in the opinion of a court, or medical practitioners, in the context of legislative criteria adopted by courts or legislatures from time to time.”

Your autonomous decision, in reality, is not at all autonomous. “Even when you fall seriously ill, or become clinically depressed, you will find… that your right to autonomy does not give you the right to be assisted in suicide unless you are ill enough or suffering enough, or depressed severely and incurably enough in each case ‘enough’ in the view of somebody else, other people”, Finnis explains.

There is also another reason why the decision very often is not really autonomous. This is because those affected by euthanasia are the vulnerable groups who are usually less able to exercise autonomous decisions, and they are more able to be influenced in their decision by their surroundings. They become viewed as a burden to society and they tend to internalize this view. Monetary and social incentives can make relatives persuading the ill person to take the lethal injection.

The claim for euthanasia does lie on a noble wish that a person should be able to practice his autonomy, but in reality, what happens is that a person usually loses that autonomy. And undermining one of the basic ethical principles opens up “pandora’s box”. First under attack will be the integrity of medicine, which I will try to show in the next article.

Written by Hrvoje Vargić, Regional Director of WYA Europe.