Understanding willful death through analysis of historical jurisprudential debates

“To be or not to be, that is the question”

William Shakespeare, Hamlet
This sentence is a part of a soliloquy where Hamlet ponders upon his miserable life and wonders if it would be a better option to die rather than living a painful death.

Introduction

Euthanasia is a term used to refer to the process of terminating a person’s life, mostly due to incurable illness and suffering. That is why, it has also been referred to as ‘mercy killing’. The topic of its legalisation or decriminalization was and has remained a highly controversial and highly debated topic of discussion between their proponents and opponents. People who have remained against the legalisation of euthanasia have argued against it on various grounds, out of which for the purpose of this article, the emphasis is on preserving the sanctity of a person’s life. It is a moral argument, especially a religious moral argument that one should not take away their own life since it is gift from god and that there is a duty to respect it. However, morality cannot only be seen in a religious setting, there is also arguments against euthanasia on the basis of secular morality. It is an aspect of philosophy which deals which morality outside of religious traditions. In this context, to further critically analyse the discourse on euthanasia and also broadly the scope of an individual to have a willful death, it will be fruitful to revisit the two important debates which revolved around the question of what constitutes as morality and whether law can enforce moral standards.

Morality & Law: Hart-Fuller Debate and Hart-Devlin Debate

The rivalry between natural law and positive law is at the heart of common law jurisprudence and the debate about the inclusion of morality in law is one of the primary reasons why these two jurisprudential traditions have clashed regularly.

  • HART-FULLER DEBATE

Natural law philosopher Lon Fuller was a defender of secular naturalism based on morality that comes as natural to human conscience, present in each one of us. Laws which are a violation of such universal human tendencies, cannot be called as valid law[1] . Hart, being a positivist, rejected Fuller’s idea and argued that law and morality are mutually exclusive. However, he has also accepted that there is a set of minimum moral standards[2] that society has the right to preserve. Therefore, even though a law does not become an invalid law simply because of its non-fulfilment of some minimum moral standards as long as at the end of the day it is still enforced by an authority, it also does not necessarily have to be void of all moral obligations. The conclusion to draw from analysing both these arguments is that existence of secular morality in law is not objected by either of the two philosophers so far.

  • HART-DEVLIN DEBATE

Lord Patrick Devlin’s opposition to the proposed decriminalisation of homosexuality in the UK was based on the argument that it went against the morals envisaged by the society. On the other hand Hart in favour of decriminalisation and moving away from religion based rules and laws, in response to Devlin’s criticism wrote that a mere immorality cannot be the basis for criminalisation of homosexuality or any other acts.

The case of euthanasia

According to Devlin, if public morality is not enforced, then it will lead to the downfall of society and it will disintegrate[3] . Even though he made this argument in the context of decriminalization of homosexuality, applying this in modern times when many countries around the world have made this possible, Devlin’s disintegration thesis fails. There has not been a collapse of the society. Therefore, it can be said that when it comes to euthanasia as well, such an anticipated outcome by Devlin will have unfounded conclusions. Devlin while speaking about morality did not however, refer to a static or set in stone set of morals set by the society. According to him, laws used to enforce morality should in fact, change with time as morality also changes. Here, the earlier argument presented in earlier in this article about a shift from religious morality towards a secular morality in the modern world becomes relevant. Because even though Devlin did not differentiate in his writings between two types of morality as is presented in this article, it is submitted that he did not only believed in religious morality to be the ultimate form of morality. If he did so, then he would not identify morality as a changing and evolving phenomenon. Religious scriptures and books are not re-written to mean different things even couple of year, certainly. To him, whatever was the community opinion in majority, was morality. Therefore, if there is a current global consensus on protecting the interest of an individual in regards to what they want their end of life care to be, then it should be taken as the establishment of a new public morality- which on a closer analysis is a shift from morality based on religion to a more secular idea of morality from the UK[4] , to Europe[5] , Australia[6], to Italy, Portugal[7] and America[8]. Hart would not prima facie object to decriminalization of euthanasia as well because firstly, it will be based on logic and reasoning and a shift from reliance on religious grounds which he had vehemently opposed.

Some of the other non-religious arguments against legalisation of euthanasia, besides the loosening bonds of society as the respect for human life diminishes are that if euthanasia is legalised then it would lead to deteriorating standards of care for the terminally ill, it will encourage people to give up on life every time they feel like it is not worth living anymore, it will become an excuse to get rid of people whose illness might be seen as a burden on others. To summarise, the commonality found in all these concerns is that fact that one person choosing to die will harm others in certain ways. This is something that both Mill and Hart have considered as a boundary while deliberating whether an act can be criminalized or whether it needs state intervention as even liberty of an individual is limited to this aspect. But this harm is to be compared to the pain and suffering endured by the people who want euthanasia. The majority of people who want legalisation of euthanasia are the one who either are suffering from incurable disabilities, diseases, or people who have seen the suffering of people close to them, go through the painful ordeal throughout the years. The harm that is envisaged here are all things that can be avoided by exercise of the very same shared public morality that the article has talking about, all this while. It is outweighed by the suffering that isn’t a probable occurrence to be endured by individuals but it is their reality that they have to live it, every day. Devlin had asserted that Wolfenden committee’s use of the harm principle, to justify immoral acts done in private to be unacceptable. If the same harm principle is applied to euthanasia, Devlin would perhaps make an argument about how it does not matter if harm is caused to others or it. It is a matter of upholding society’s morality and there cannot be a difference between a public and private sphere[9]. Therefore till now the views of Devlin and Hart that had been expressed in response to the Wolfenden report, on their application on the euthanasia debate seems to suggest that Hart would perhaps be in favour of its legalisation while Devlin would be in the opposition.

Euthanasia can be of several types. In most countries where euthanasia is legal, there is a general agreement that it can only be allowed in cases where patients have endured pain and suffering for a long time and there is not plausible hope for recovery[10]. In India, post the Aruna Ramchndra Shaunbaug[11] judgement, passive euthanasia has been made legal, provided that consent from the patient is taken, along with their close relatives. If contested by anyone else however, then it could be required to get an approval from the court until a formal law is in place. This landmark judgement was justified on the grounds of extending Article 21 of the Indian Constitution to also include the right to die with dignity. Even here, however, the judgement limited the instances in which euthanasia might be requested- as terminal illness or patient in permanent vegetative state with no hope for recovery. The court’s judgement that passive euthanasia can only be approved if there is a consent of the patient and their relatives is a breach of their liberty to be able to make decisions about their life on their own can be said to be a breach of their liberty to make decisions about how they want their end of life to be. However, this is where the stance of Hart and Devlin which seemed to be clear earlier, on the issue of euthanasia gets a little complicated. Hart would agree to the state’s intervention in certain cases to exercise legal paternalism, such as euthanasia as nothing can be more harmful than dying[12] . This is not however, say that law should enforce morality, as was the position of Devlin. Therefore he shifts from Mill’s idea of liberty and freedom and proposes a narrower view of it which limits its exercise to a certain extent. To be very clear, Devlin’s limitation of an individual’s exercise of liberty and Hart’s reasons for agreeing to certain types of limitations are completely different.

  • Attempt to suicide

Where the harm principle talked only about harm done to others, legal paternalism stops a person from taking any decision which might prove harmful to themselves. It is submitted that this legal mechanism even though places a negative covenant on the right of exercising liberty by a person, the output is a positive and necessary one. Human beings do not think rationally all the time and can make mistakes. In India, section 309 of the IPC contains provision for penalising persons who attempt suicide. The court in the case of Gian Kaur[13] clarified that right to die with dignity is only considered when there is a case of natural death and not in the case of an unnatural death and therefore, section 309, which talks about suicide, not being a natural extinction of life cannot be brought under the scope of Article 21. Therefore, because it is authority implemented law, Hart would agree to the upholding of section 309 along with the additional justification of legal paternalism, in place to stop people from making rash, erroneous decisions. However, what about a situation where a person suffering from depression or some other severe form of mental illness which causes profound suffering such as the inability to function as a healthy working member of society, leading to a miserable life. According to the Aruna Shaunbaug standard, the person has no option to request for euthanasia even if their suffering is just as much. Or a situation where because of a mental illness, the person in a state of panic attempted to kill themselves, will then a punishment under S. 309 of the IPC, enforced on the concept of legal paternalism be justified?

Conclusion

The application of the Hart-Devlin debate to the modern discourse on euthanasia is although a fruitful exercise in an attempt to answer questions raised regarding enforceability of morality by law, it falls short in certain contexts. Such as, Devlin’s standard of actions requiring legal intervention when it would invoke ‘widespread intolerance, indignation and disgust’[14] is unlikely to be the reaction of the modern society towards a person suffering long term, opting for euthanasia. Because Devlin while setting up some elastic guidelines for when the society can use law to enforce morality, also said that as far as possible, the maximum individual liberty should be allowed, provided that it is consistent with the integrity of society[15]. As soon as society becomes disturbed due to such acts, it can use law’s enforceability tool. It is submitted that even though Hart’s responses to Devlin in their debate has always gotten more critic backing, it is not possible to contribute to the discourse of euthanasia without the helpful points made by Devlin. Hart’s acceptance of a need for legal paternalism applied as the backing of Section 309 of IPC, fails to answer question related to suicidal attempts made by persons dealing with mental illness without an option to ask for an end to their suffering by euthanasia. These question further adds to the complexities of the rights of a person to die as they wish and state control over their wish.


[1] This connects back to the secular morality concept that was introduced earlier in the article. In simple words is the idea that there is an existence of an individual’s ability to distinguish between what is good and bad. It is based on the idea that human beings are inherently empathetic, are able to deploy common sense in order to make decisions without referring to religion. It need not have religious backing in order to validate it 3 Which includes 1) human vulnerability 2) approximate equality 3) limited resources 4) limited altruism and 5) limited understanding and strength of will.

[2] Sonali Banerjee, ‘The relevancy of the Hart & Fuller debate relating to law and morality- A critical analysis’ (2020) 4(2) IJLLJS https://ijlljs.in/wp-content/uploads/2017/04/Jurisprudence_draft.pdf accessed 10 December 2020

[3] Gregory Bassham, ‘Legistating morality: Scoring the Hart-Devlin Debate after fifty years’ (2012) 25(2) Ratio Juris https://doi.org/10.1111/j.1467-9337.2012.00506.x  accessed 10 December 2020

[4] Owen Bowcott, ‘Legalise assisted dying for terminally ill, say 90% of people in UK’ The Guardian ( 3 March 2020) https://www.theguardian.com/society/2019/mar/03/legalise-assisted-dying-for-terminally-ill-say-90-per-cent-of-people-in-uk accessed 10 December 2020

[5] Tom Haneghan, ‘Large Europe majorities for assisted suicide: survey’ Reuters (Paris, 30 November 2020)  https://in.reuters.com/article/us-euthanasia-europe-survey/large-europe-majorities-for-assisted-suicide-survey-idUSBRE8AT0EG20121130 accessed 10 December 2020

[6] 7 ‘It’s official: Australians support assisted dying or euthanasia’ (Roy Morgan, 10 November 2017) http://www.roymorgan.com/findings/7373-large-majority-of-australians-in-favour-of-euthanasia-201711100349 accessed 10 December 2020

[7] ‘Portugal: Over half favour euthanasia-survey’ Lusa (Lisbon, 13 February 2020) https://www.lusa.pt/article/UsrRdIrU_ZwTiNeR6mVBbTMSZM5iuSI1/portugal-over-half-favour-euthanasia-survey accessed 10 December 2020

[8] Megan Brenan, ‘Americans’ string support for euthanasia persists’ Gallup (Washington D.C, 31 May 2018) https://news.gallup.com/poll/235145/americans-strong-support-euthanasia-persists.aspx accessed 10 December 2020

[9] Patrick Devlin, The enforcement of morals (1959)

Devlin gives the example of an individual drinking every night in his own home, which is acceptable. However, this becomes a problem when more than half of the entire society’s population, for example starts developing alcoholism. Then there will arise a need to legislate the new moral standard of a society which is against excessive drinking because it is essential to the society to be healthy enough to thrive

[10] Nicola Davis, ‘Euthanasia and assisted dying rates are soaring. But where are they legal?’ The Guardian (15 July 2019) https://www.theguardian.com/news/2019/jul/15/euthanasia-and-assisted-dying-rates-are-soaring-but-where-are-they-legal  accessed 10 December 2020

[11] Aruna Shaunbaug v. Union of India, (2011) 4 SCC 454

[12] Christine Pierce,’ Hart on Paternalism’ (1975) 35 (6) OUP on behalf of the Analysis Committee https://www.jstor.org/stable/3327973  accessed 10 December 2020

[13] Gian Kaur v. state of Punjab (1196) 2 SCC 648

[14] Peter Cane, ‘Talking Law seriously: Starting Points of the Hart/Devlin Debate’ (2006) 10 The Journal of Ethics < https://www.jstor.org/stable/25115849 accessed 10 December 2020

[15] See note 4

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