 [12] ALT.POLITICS.LIBERTARIAN (1:375/48)  ALT.POLITICS.LIBERTARIAN 
 Msg  : #5251 [405]                                                             
 From : Ian Geldard                         1:2613/335      Tue 09 Aug 94 18:47 
 To   : All                                                                     
 Subj : Pt 1/3: The Right to Death                                              

From: igeldard@capital.demon.co.uk (Ian Geldard)
Organization: Myorganisation

                           THE RIGHT TO DEATH

                        By Professor Antony Flew

                           Legal Notes No. 8

              ISSN: 0267 7083         ISBN: 1 870614 72 0

         An occasional publication of the Libertarian Alliance,
       25 Chapter Chambers, Esterbrooke Street, London SW1P 4NN.

     (c) 1990: Libertarian Alliance; "Reason Papers", Antony Flew.

This paper was first delivered at the Sangamon State University
Gerontology Institute Conferences 1979, Springfield, Illinois.  It was
included as a chapter in "Aging and the Human Condition", Frontiers in
Gerontology Series, ed. Gari Lesnoff-Caravaglia (New York: Human
Sciences Press). It was subsequently published in Reason Papers, No. 6,
Spring 1980, and is reprinted with permission.

Professor Antony Flew is Professor Emeritus of Philosophy at the
University of Reading, and the author of numerous books and articles on
philosophy, politics and sociology.

The views expressed in this publication are those of its author, and not
necessarily those of the Libertarian Alliance, its Committee, Advisory
Council or subscribers.

 LA Director: Chris R. Tame      Editorial Director: Brian Micklethwait

                     FOR LIFE, LIBERTY AND PROPERTY

--------------------------------------------------------------------------

I want to start with a phrase from the Declaration of Independence, but
by the slightly indirect approach of quotation within a quotation.  With
his usual shrewd grasp of fundamentals, the lawyer Lincoln once wrote:
"The authors of that notable instrument ... did not intend to declare
all men equal in all respects.  They did not mean to say that all men
were equal in color, size, intellect, moral developments, or social
capacity.  They defined with tolerable distinctness in what respects
they did consider all men created equal - equal in certain `unalienable
rights, among which are life, liberty and the pursuit of happiness.' "

It is perhaps tempting to digress to support and to labour the point
that neither Lincoln nor the Founding Fathers believed: either that "at
birth human infants, regardless of heredity, are as equal as Fords" or
that some such repudiation of genetic fact is implied or presupposed by
any insistence upon an equality of fundamental human rights. [1]  But
our present concern is with the actual prescriptive and proscriptive
content of these particular norms.  For us the crux is that they are
all, in M. P. Golding's terminology, "option" as opposed to "welfare"
rights: the former forbid interference, within the spheres described,
entitling everyone to act or not to act as they see fit; whereas the
latter entitle everyone to be supplied with some good, by whom and at
whose expense not normally being specified. [2]  Hence, with that
"peculiar felicity of expression" that led to his being given the
drafting job, Thomas Jefferson spoke: not of rights to health,
education, and welfare - and whatever else might be thought necessary to
the *achievement* of happiness; but of rights to life, liberty, and the
*pursuit* of happiness - it being up to you whether you do in fact
pursue (and to the gods whether, if so, you capture) your prey.  An
option right is thus a right to be allowed, without interference, to do
your own thing.  A welfare right is a right to be supplied, by others,
with something that is thought to be, and perhaps is, good for you,
whether you actually want it or not.

To show that the Founding Fathers were indeed thinking of option rather
than welfare rights, it should here be sufficient to cite a passage from
Blackstone, which has the further merit of indicating upon what general
feature of our peculiarly human nature such fundamental rights must be
grounded.  From their first publication in 1765, his "Commentaries on
the Laws of England" had a profound influence on all the common law
jurisdictions in North America, an influence that continued well into
the Federal period.  Blackstone wrote:

     The absolute rights of man, considered as a free agent, endowed
     with discernment to know good from evil, and with the power of
     choosing those measures which appear to him to be most desirable,
     are usually summed up in one general appellation, and denominated
     the natural liberty of mankind ...  The rights themselves ... will
     appear from what has been premised, to be no other, than that
     residuum of natural liberty, which is not required by the laws of
     society to be sacrificed to the public convenience; or else those
     civil privileges, which society has engaged to provide in lieu of
     the natural liberties so given up by individuals. [3]

But now, if those self-evident fundamental and universal rights are thus
option rights, and they surely are, then the right to life must be at
the same time and by the same token the right to death: the interference
forbidden must be the killing of anyone against that person's will, and
that person's entitlement, the entitlement to choose whether or not to
go on living as long as nature would permit.  In saying this I am not,
of course, so rash as to maintain that it is something which all or any
of the signers of the Declaration saw or intended.  The claim is,
rather, that, irrespective of what they or anyone else appreciated in
1776, this does necessarily follow from what they did then so solemnly
attest and declare.  It is today even more obvious that, if all men are
endowed with certain natural and unalienable rights, then all must
include all: black and white together.  Yet this now so manifest
consequences seems for many years to have escaped many people, up to and
including justices of the Supreme Court.  So a widespread failure to
appreciate what may now appear an obvious implication is not sufficient
to show it not really an implication at all.

OPTION RIGHT OR WELFARE RIGHT?

In the lower court decision in the now famous case of Karen Ann Quinlan,
Judge Muir denied the plaintiff's request to have the life-sustaining
apparatus switched off, indicating that he did not find grounds in the
Constitution for any right to die.  Insofar as the Declaration is not
part of the Constitution we might give him the point.  Yet, in my very
unlegal opinion, if the amendment on which Roe v. Wade [4] was decided
really does warrant what the Supreme Court decided that it did warrant,
then it must surely warrant both suicide and assisted suicide.  For in
abortion what the pregnant woman is killing, or getting her doctor to
kill for her, is arguably - notwithstanding that this this is not an
argument that I myself accept - another person with his or her right to
life.  So, if it would be a constitutionally unacceptable invasion of
privacy to prevent a woman from killing a fetus or getting someone else
to kill it for her, then surely it must be a far more unacceptable
incursion to prevent women, or for that matter, men, from either killing
themselves or getting someone else to kill them.  For in all those
secular systems of law in which suicide still is a crime, it is a much
less serious crime than murder.

(a) Judge Muir next went on to say, that, if he were to grant the
request of the plaintiff, then "such authorization would be homicide and
a violation of the right to life". [5]  Since it was not disputed that
Karen Quinlan had on at least three occasions insisted that, should this
sort of situation arise, she would not with to be maintained in the
condition in which she then was - and still is - Judge Muir's "right to
life" becomes one that is at the same time a legal duty.  Just that, or
substantially that, does seem to be the present position in all those
jurisdictions that recognize a right to life.  For even where, as in my
own country today, suicide itself is not a crime, to assist it still is;
while, with very few exceptions, doctors and others are legally required
to employ every available means to prolong life of any kind.

For good measure consider two further statements, one from each side of
the Atlantic.  The first was made by Mr. James Loucks, president of the
Crozier Chester Medical Center of Chester, Pennsylvania.  He had
obtained a court order to permit his hospital to force a blood
transfusion on a Jehovah's Witness who had previously requested in
writing that, out of respect for her religious convictions, the hospital
do no such thing.  Mr. Loucks explained that he and his staff overrode
her wishes "out of respect for her rights".  The second statement was
made by the chairman of a group calling itself the Human Rights Society,
set up in 1969 to oppose the legalization of voluntary euthanasia.  He
said: "There are really no such things as rights.  You are not entitled
to anything in this universe.  The function of the Human Rights Society
is to tell men their duties." [6]

It has sometimes been suggested that it is contradictory to speak of a
right where the exercise of that putative right is compulsory. [7]  This
is certainly a tempting suggestion, and it may be what led the chairman
of the Human Rights Society thus categorically to deny what his society
pretends to defend.  But if we are going to allow welfare as well as
option rights, then this contradiction seems to arise only with the
latter and not the former.  If that is correct then we can pass, for
instance, Article 26 of the 1948 United Nations Universal Declaration of
Human Rights: "Everyone has the right to education ... Elementary
education shall be compulsory." Yet it will still allow us to reject the
combination of a right to join a labour union with any corresponding
compulsion so to do.  For if the exercise of a welfare right is to be
made compulsory, then the justification of the compulsion can only be
the good, the welfare, of the persons so compelled.  Yet, in England at
any rate, the spokesmen for the labour unions, and their political
creatures in the Labour Party, try to justify forced recruitment on the
grounds: not paternalistically, that membership is in the best interests
even of those who fail to see this themselves; but indignantly, that all
holdouts are freeloaders enjoying the benefits, which it is alleged that
the union has brought, without undertaking the burdens of membership.

So, allowing that it can be coherent to speak of a right that its
bearers are to be forced to exercise, could there be such a compulsory
welfare right to life?  The crux here is whether the prolongation of
life which it is proposed to impose can plausibly be represented as
being good for the actual recipients of this alleged benefit.  But
perhaps, before tackling that question, it needs to be said that any
answer will leave open the different issues raised by considering the
good of others.  Certainly, while insisting on a universal human option
right to life, in the sense explained earlier, and while urging always
that it is overtime for this to be recognised and protected by our laws,
I am myself ever ready to maintain that such most proper considerations
of the good of others make some suicides morally imperative and others
morally illicit: the suicide of Scott's last expedition, provides an
example of the one; and of the other that of the English poetess Sylvia
Plath, effected in another room of the house in which she was living
with her two young and dependent children.

So long as we continue our attentions to what may vaguely but
understandably be called normal times, and to the suicide and suicide
attempts of the tolerably fit and not old, it is reasonable enough to
hold that in general the frustration of such attempts does further the
good of the attemptors.  Indeed, any realistic discussion in this area
has to take account of the facts, that a great many of what look like
attempted suicides are in truth only dramatised appeals for help and
that many of those genuine attemptors whose attempts are aborted by
medical or other interferences survive to feel grateful to their
interferers.  But when we turn to the old, faced perhaps with the
prospect of protracted senility, of helpless bedridden incontinence, of
lives that will be nothing but a burden both to the liver and to
everyone else, then the story is totally different.  Here you do have to
be some sort of infatuated doctrinaire to maintain an inflexible
insistence that all life, any life, is good for the liver.

I will not now repeat more than a word or two of what was last year said
with such force and charm by the splendid Doris Portwood in her book
"Common-sense Suicide". [8]  It should be enough to report that as a
woman over 65 she sees herself as making, and encouraging her peers to
join with her in making, a distinctive contribution to the women's
movement.  "How many of us," she asks those peers, "attending a friend
or relative in her final days (or weeks, or months, or years) have said,
`It won't happen to me.  I'll take care of that.'  But did we say it
aloud?  It is time to say it loud and clear.  And often." It is time,
she concludes, mischievously mimicking the jargon of her juniors, to
"declare our intention to start a meaningful dialogue on common- sense

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 [12] ALT.POLITICS.LIBERTARIAN (1:375/48)  ALT.POLITICS.LIBERTARIAN 
 Msg  : #5252 [405]                                                             
 From : Ian Geldard                         1:2613/335      Tue 09 Aug 94 18:47 
 To   : All                                                                     
 Subj : Pt 2/3: The Right to Death                                              

suicide." [9]

What I will quote instead comes form a newspaper letter written by Mrs.
Margaret Murray, a still very active and much valued member of Britain's
Voluntary Euthanasia Society.  Two years ago she published an article
"declaring my intention to end my own life when increasing helplessness
from multiple sclerosis makes it a hopeless, useless burden."  This led
to the production of a memorable television programme.  The present
letter was a response to the statement by the medical director of St.
Christopher's Hospice that "requests to end life are nearly always
requests to end pain".  That medical director had in that programme
asserted "that though I might be helpless and actually fed and washed
and have other sordid details attended to, my life has a value and I
still had something to give."  Dismissing this particular piece of
santimonious self-deception with the question "Who are these greedy
takers?" Mrs. Murray proceeded to deploy three cases:

     An eighty-year old army colonel, who realised that he was becoming
     senile, flung himself in front of an Inter-City express as it went
     through the village where I live.  A few months later a Newbury
     coroner gave a verdict of "rational suicide" on a retired water
     bailiff who took his own life because increasing infirmities means
     it was no longer worthwhile to him.

     And what of sufferers from Huntington's Chorea, never still a
     moment and unable to speak clearly enough to be intelligible?  One
     of these unfortunates who is well known to me has tried three times
     to end her own life. [10]

(b) The previous subsection dealt with the question whether there could
be a right to life, the exercise of which is not allowed to be a matter
for the choice of the individual: such a right, of course, could only be
a welfare not an option right.  The issue in the present subsection is
whether the option right to life, as explicated above, covertly contains
an incongruous and unacceptable welfare element.  The suggestion is that
a right to life which is at the same time and by the same token a right
to anticipate the death that would otherwise have occurred later must
impose on some other person or persons a corresponding duty to bring
about that earlier death: "A persons's right to be killed gives rise to
someone's (or everyone's) duty toward that person.  If anyone can be
said to have a right to be killed, someone else must have a duty to
cooperate in the killing ...  The important thing is that someone - a
doctor, a nurse, a candystriper, a relative - intervene actively or
passively to end the right-holder's life." [11]

This passage is, on the one hand, entirely sound insofar as it is
insisting that all rights must impose corresponding duties; though,
since all duties do not give rise to corresponding rights, the converse
is false.  This logical truth constitutes the best reason for saying
that welfare rights do not belong in the Universal Declaration of Human
Rights.  For who are the people who have at all times and in all places
been both able and obligated to provide for everyone: "social security"
(Article 22), "periodic holidays with pay" (Article 24), "a standard of
living ... including ... necessary social services, and the right to
security in the event of unemployment, sickness, disability, widowhood,
old age or other lack of livelihood in circumstances beyond his control"
(Article 25 (1)); to say nothing of the provision that compulsory
elementary education aforementioned "shall further the activities of the
United Nations for the maintenance of peace" (Article 26 (2))?

But the same passage is, on the other hand, entirely wrong insofar as it
is trying to draw out the implications of an option right to life.  Such
rights do necessarily and as such impose corresponding obligations.
These obligations rest uniformly and indiscriminately upon everyone
else, not just upon some unspecified and unspecifiable subclass of
providers, who may or many not in fact be available and able to provide.
But these obligations are obligations not to provision but to
noninterference.  In a jurisdiction, therefore, that recognised and
sanctioned the option right to life, the people who decided that they
wanted to suicide [12] would, if they needed assistance, have to find it
where they could.  Their legal right to noninterference imposes no legal
duty on anyone else to take positive steps to assist, although, of
course, this is quite consistent with its being the case that someone is
under a moral obligation so to do.  Here as always we have to
distinguish questions about what the laws do or would permit or prohibit
from questions about what people are morally obliged to do or not to do.

DOCTORS AND THE RIGHT TO DIE

When, a quarter of a century or more ago, I first joined the Voluntary
Euthansia Society the emphasis was on extremes of physical pain.  The
main policy objective was to get a Voluntary Euthanasia Act that would
establish official machinery to implement the wishes of those terminal
patients who urgently and consistently asked for swift release.  In
response to medical and other developments in the intervening years the
emphasis has shifted.  It is now on irreversible decay into helpless
futility and on operations resulting in prolonged but not especially
painful survival at a subhuman level of existence.  The chief and most
immediate objectives are also different.  The Young Turks, at any rate,
as well as their more wide-awake and forward-looking seniors, are now
pushing for amendment of the Suicide Act and for measures to enable
patients and their representatives to ward off unwanted treatment and
vexatious life-support, rather than for an act setting up the
paraphernalia of panels considering applications and directing that
their decisions be implemented.

(a) It is in consequence no longer so true as once it was that
"supporters of voluntary enthanasia do not merely want suicide or
refusal of treatment or allowing a patient to die.  They want the
patient dead when he wants to be dead, and they want this accomplished
through the physician's agency." [13]  In the great majority of cases
such as Doris Portwood and Margaret Murray have in mind, the agent would
be the patient or, with patients too far gone to act themselves, the
spouse or other close relative or friend.  Consider, for example, Lael
Wertenbaker's "Death of a Man" or Derek Humphry's "Jean's Way": [14] as
both would have wished, the prime agent in the former was the wife and
in the latter the husband.  The only necessary involvement of the
medical profession here is through the providing of advice on
instruments, and maybe the instruments themselves; and not insisting on
mounting an all- out campaign to revive the patients.

The desired amendment of the United Kingdom Suicide Act 1961, an act
that already decriminalises the deed itself, would replace the present
general offence of "aiding, abetting, counselling or procuring the
suicide of another" by the limited an in fact very rare one of doing
this "with intent to gain or for other selfish or malicious reasons",
leaving the courts to decide, as they so often do elsewhere, when the
motives of the assistance were indeed discreditable. [15]  From a
libertarian point of view this suggestion has, as against any Voluntary
Euthanasia Act, the great advantage of specifying, not what is legal,
but what is illegal.

(b) Finally, and with special but not exclusive reference to the other
sort of case, in which it is almost bound to be the doctors who would be
either killing or letting die, I have a few brief and insufficient words
about the absolute sanctity of all (human) life and the idea that
killing (people) is always wrong.  My suggestion is that, if these so
often mentioned principles are to stand any chance of being ultimately
acceptable, then both need to be amended in at least two ways.

The first amendment is already accepted almost universally when people
think of it.  It consists in actually inserting the unstated
qualification "innocent".  The point is to take account of killing in
self-defence and of the execution of those who have committed capital
offenses.  In our terms, people who launch potentially lethal assaults
thereby renounce their own claims to the option right to life.
Reciprocity is of the essence; just as one person's option right gives
rise to the corresponding obligations of all others to respect that
right, so, if people violate the rights of others, then that nullifies
the obligations of those others to recognise any corresponding rights
vested in the violators. [16]

The second amendment consists in adding some indication that what is to
be held sacred and inviolate is a person's wish to go on living.  This
takes account of the enormous, and in almost all contexts crucial,
differences between murder and suicide.  These are that murderers kill
other people, against their will, whereas suicides kill themselves, as
they themselves wish.  It is perverse and preposterous to characterise
suicide, and to condemn it, as self-murder.  You might as well denounce
intramarital sex as own-spouse adultery.

In the present context the importance of this second amendment is that
it attends to those particular human essentials that provide the grounds
upon which all claims to universal human rights must be based.  It was
to these that Blackstone was referring when, in discussing "the absolute
rights of man", he wrote "of man, considered as a free agent, endow-ed
with discernment to know good from evil, and with the power of choosing
these measures which appear to him to be the most desirable."  It was on
these same universal features that Thomas Jefferson himself insisted.
In Query (XIV) to the "Notes on the State of Virginia" he made various
lamentable remarks about blacks, remarks that I shall not repeat and
that would today disqualify him from all elective office.  For
Jefferson, it was notwithstanding all these alleged racial deficiencies
that blacks (and Indians) certainly do have what it takes to be endowed
with the "rights to life, liberty, and the pursuit of happiness."
Again, it was to these same essential features of people as beings
capable of choosing values and objectives for themselves, and of having
their own reasons for these choices, that Immanuel Kant was referring
when he laid down that famous but most confused formula: "Act in such a
way that you always treat humanity, whether in your own person or in the
person of another, never simply as a means, but always at the same time
as an end." [17]

On some other occasion I might try to spell out more fully the rationale
for the fundamental option rights and, in particular, to dispose of
Kant's topsy- turvy contention that the respect for persons as
self-legislating choosers of their own ends requires that they not
choose their own end as an end.  But here and how I will instead
conclude by relating that right to die, which I take to be part of the
option right to life, to the Hippocratic Oath.  This is still often
cited as a decisive reason why doctors and other health-care
professionals must strive always and by all means to maintain life,
irrespective both of the quality of that life and of the wishes of its
liver.  This reason is still frequently flourished, notwithstanding that
nowadays probably only a small minority of doctors outside the
ever-expanding socialist bloc do in fact swear that oath.  (It is, of
course, within the socialist bloc outlawed, precisely because it makes
doctors the servants of their patients, rather than of society or the
state.)

The relevant sentences of the Hippocratic Oath read: "I will use
treatments to help the sick according to my ability and judgement, but
never with a view to injury and wrong-doing.  I will not give anyone a
lethal dose if asked to do so, nor will I suggest such a course." [18]
It is obvious that, in the area of today's gerontological concerns, the
second and subsidiary undertaking may come into conflict with the
primary promise to "use treatments to help the sick according to my
ability and judgement."

In such situations it is impossible to keep the oath.  Happily, these is
no doubt which of the incompatibles should then be preserved.  For at
the heart of the entire Hippocratic tradition is the idea of the
independent professional who - always, of course, within the framework
formed by the universal imperatives of moral duty - puts his skills at
the service of his patients.  So it is quite clear, to me at any rate,
that, given a more libertarian system of public law, that service must:
not only exclude forcing unwanted treatment upon those who have, either
directly or indirectly, asked to be left alone; but also include
providing instrumental advice on suicide, and maybe the means too, if
suicide is the considered wish of their patients.

NOTES

1. The quotation is borrowed from F. A. Hayek, "New Essays" (London:
Routledge and Kegan Paul, 1977), p. 290, and it is there said only to be
taken from an old "Encyclopedia of the Social Sciences".  On the
substantive issues see "The Jensen Uproar" in my "Sociology, Equality
and Education" (New York: Barnes and Noble, 1976).

2. See E. L. Bandman and B. Bandman, eds., "Bioethics and Human Rights"
(Boston: Little Brown, 1978), chap. 4.

3. Pp. 125 and 128 in the Cadell and Butterworth edition (London, 1825).

4. 410 U.S. 113, 93 S A. 705 (1973).

5. In the Opinion of Robert Muir, Jr., in the Matter of Karen  Quinlan:
An Alleged Incompetent. Super, A.N.J., Chancery Division, Morris
Company, C-201-75 (Nov. 10, 1975).

6. The first statement is copied from a report in "The General
Practitioner" (London), Nov. 26, 1978.  The other comes from the

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 [12] ALT.POLITICS.LIBERTARIAN (1:375/48)  ALT.POLITICS.LIBERTARIAN 
 Msg  : #5253 [405]                                                             
 From : Ian Geldard                         1:2613/335      Tue 09 Aug 94 18:47 
 To   : All                                                                     
 Subj : Pt 3/3: The Right to Death                                              

September 1978 issue of that doughtily libertarian magazine "Reason".

7. See, for instance, Bertram Bandman in Bandman and Bandman, "Bioethics
and Human Rights", chap. 5.

8. New York: Dodd Mead, 1978.

9. Ibid., p. 10.

10. "The Guardian" (London), Jan. 20, 1979.

11. Bandman and Bandman "loc. cit"., p. 141.

12. My employment of either the single word as an intransitive verb or
the affected-sounding gallicism "suicide themselves" is calculated.  For
the ordinary English expression "commit suicide" is one of those
expressions - first noted in Aristotle's "Nicomachean Ethics", 1107A
8-13 - that "already imply badness".  Since I do not hold that suicide
is always wrong I deliberately eschew that implication.

13. Bandman and Bandman, "Bioethics and Human Rights", p. 130.

14. Boston: Beacon, 1957.

15. We owe the precise terms of this suggestion to Tom Parramore,
secretary of our sibling society in Australia.

16. It is here to the point to quote words from a now perhaps no longer
disfavoured Sage.  A pupil once asked Confucius whether his rule of
conduct might not perhaps be epitomised in a single word: "The Master
replied, `Is not "reciprocity" the word?' "  See "The Analects",
translated and edited by W. E. Soothill (Taiyuanfu, Shansi: Soothill,
1910), XV 23.

17. "Groundwork of the Metaphysic of Morals", in "The Moral Law", trans.
H. J. Paton (London: Hutchinson, 1968), p. 94 (italics removed).

18. "Hippocrates and the Fragments of Heracleitus", ed. and trans. W. H.
S. Jones and E. T. Withington (Cambridge, Mass.: Harvard University
Press: and London: Heinemann, 1959), 1: 298.  The translation here is in
fact my own.

--
          +-----------------------------------------------------+
          | Ian Geldard | FidoNet  2:254/151      CIS 70734,426 |
          | London, U.K.| Internet igeldard@capital.demon.co.uk |
          +-----------------------------------------------------

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