The phrase “a death choice” has generated a lot of trouble not only in the legal arena but also in the social field all over the world. Specifically, euthanasia is the termination of a very sick person’s life in order to relieve them of their suffering. A person who undergoes euthanasia usually has an incurable condition (1). But, can a person be capable of deciding about its own ending? How free we, as citizens, are to take such a decision? Is it all about liberalism? There are so many questions and doubts about this topic. I truly believe that in the nick of time, this controversy is not over and for sure, it is good because it lets the debate go on.
From a legal point of view, and I am not talking about what rules or a Constitution may say, I am referring to the core of the legal reasoning: paternalism. Actually, the main discussion is not about if paternalism does exist or not, there are several academics who have done hard work to define paternalism, its types and limits (2). Besides, the questions that we need to start making are when is it justified to be paternalistic? Is ever justified to be paternalistic? Is it justified to decide over the autonomy of an individual? Moving forward, is it justified a law banning physician-assisted suicide? To answer them, firstly, we do need to understand how and where we can find a justification for a rule. Talking about assisted suicide, there are so many rules quoted to the debate, such as the right to live (not to die), the freedom of choice, the government’s duty to protect life overall. Thus, which of those rules can be the justification to ban or allow the Law to be paternalistic and decide over the autonomy of an individual.
Those same questions would had been Alicia’s doubts when the King of Hearts yell out the rule forty-two “All persons more than a mile high to leave the court” (3). Alice was confused not only because of the development of the trial but also due to the logic behind the rules applied to it. As she said “that’s not a regular rule”, she could not find a justification for such a rule. Nevertheless, what do we find as a regular one? Would the White Rabbit or the Hatter find that rule as a regular one? The justification of the King was that “It’s the oldest rule in the book”. Of course, Alice was not cheerful with that answer and we neither.
Let’s try to focus on our last question: Would the White Rabbit or the Hatter find that rule as a regular one? Maybe the first answer would be a positive one and with arguments as the following ones: they are mad, they do not have a comprehension of logicalness or perhaps they live in a nonsense world. Now, let’s focus on the last possible answer. The comprehension or the logic of a rule depends on the type of world, the type of society where it is valid. That’s why the rule told to Alice has meaning, logic and earned obedience by the King’s eyes, the White Rabbit, the Hatter and others.
In other words, what that small part of the chapter wants to say is that to identify a rule, we need to look at the society (judges, officials or the King of Hearts). I mean, look at what they apply and get as a rule in their daily basis and then, we would find the justification for the rule. Strictly speaking, to look for a social rule of recognition as Hart would say (4). Hart defends that Law is a social system. Actually, this social rule of recognition is a secondary rule as Hart understands it, because this gives us the possibility to identify what is a rule: the legal validity. In that sense, the justification of the existence of a rule, of the interference of the human autonomy, depends on the margin of appreciation that each “wonderland” can have. There are no prima facie arguments or justification for any rule, they all depend on the society and its margin of appreciation. That is why a government can be as paternalistic as they want in correspondence of its margin of appreciation. Do not misunderstand that a margin of appreciation can be anything, it ought to be reasonable. Lawyers and philosophers have been working so hard on finding standards for it and the majority of them have come to the conclusion of the necessity of a weightness of rights and principles when we are talking about margin of appreciation (5). But also, they do recognize that most of the time it is a political decision, so it is not only a legal problem anymore (as Kelsen would like).
There is no doubt that as individuals, we do have the right of freedom and personal development, the autonomy and right to decide over our body and life. But we also know that rights are not absolute, they coexist with others. Thus, all the interference on any freedom has to be justified on the margin of appreciation as we have already said. Actually, government had reasonable justification for not creating different legal regimes concerning assisted suicide for those physically able and those physically unable due to the risk of abuse and undermining of the protection of life safeguarded, for instance, by Suicide Acts. Those governments based their justification and specific rule of recognition in the protection of life above everything. Basically, they say that “we need to protect the lives of vulnerable ones, the ones that because of the illness, cannot take an unpressured decision about their lives”. Of course their rule of recognition is based on a paternalistic point of view, but is it justified? If you ask Mill, it is due to the protection of autonomy, if a person dies there will not be autonomy anymore. Nevertheless, as far as we recognize paternalism exists to provide wellness to individuals who cannot foresee the negative effects of their decision, paternalism related to assisted suicide for terminal illness patients may not be legitim because it forces the individual to suffer due to their illness instead of chosing about its own life (6).
On the other side, we have the governments such as Holland, New Zealand, and lately Spain, that have a different rule of recognition: they protect life but not above everything, there are some exceptions related to dignity and of course, to terminally illness where you can exercise your right to decide and choose death. As far as we can see, authanasia is a typical case that Ronald Dworkin would call: a difficult case or “weighted ties” if we follow Alexy’s theory. There is no black and white here.
Now, it is important to remind Pretty vs. UK (7) case where the Court concludes that the interference in autonomy of individuals may be justified as “necessary in a democratic society” for the protection of the rights of others and, accordingly, that there has been no violation of article 8 of the European Convention of Human Rights (referred to right of freedom). Moreover, the Court let the government decide on this topic due to the margin of appreciation, but this is based on a specific rule of recognition that can evolve, change and disappear. In response to the government’s margin of appreciation about the protection to the vulnerable ones: “Protecting the vulnerable is a reason to justify a general ban on assisting suicide, but it’s not sufficient to justify a universal ban”. Bear in mind the difference of what Kant determinates as a categorical imperative and a particular one.
Along this lines, the aim was to realize that euthanasia is not a matter of rights recognition, but a margin of appreciation of the rights that are already recognized. This escenario is marvelous for citizens. A no ending related to euthanasia debate lets citizens to be more aware of what is the margin of appreciation that their authorities on charge manage (is it legal, political, private?), be more conscious of the evolution of this margin of appreciation because it is not fixed. Perhaps, as well as Alice, stand up and point out that “that’s not a regular rule”, bring up that the rule of recognition is based on social rules and that society can evolve. Although never forgetting the reasonable justification required and a proper weightness of rights. All of this because paternalism is part of the legal system but it will only be justified if, as citizens, we identify a valid rule on paternalistic actions, if not, we do need to claim the valid social rule of recognition to be applied on the margin of appreciation of each government’s decisions.
(1) For further information: http://www.bbc.co.uk/ethics/euthanasia/overview/introduction.shtml
(2) For further information, there are huge names in the field of the meaning of paternalism such as Jeremy Bettam, Hans Kelsen, Ronald Dworkin, H. L. A. Hart, John S. Mill and more others.
(3) View: (1858) CARROLL, Lewis. Alice in wonderland. “King reflecting in court” Chapter XII. https://www.cs.cmu.edu/~rgs/alice-XII.html
(4) View: (2008) MACCORMICK, Neil. H.L.A. Hart. https://www.universitypressscholarship.com/view/10.11126/stanford/9780804756785.001.0001/upso-9780804756785-chapter-3
(5) For further information about the weight formula: https://www.researchgate.net/publication/283703488_On_Robert_Alexy’s_Weight_Formula_for_Weighing_and_Balancing