5.2.1 Introduction
The constituent elements of the hypothetical claims refer to a situation in which an official (respondent) is in a position to act to interfere with the suicidal claimant (subject) as regards the enabled suicide (object) (see 1.3.3 and 2.2.3). Both the official and the suicidal claimant are necessarily agents in this scenario. This section will construct a dialectically necessary judgement in terms of an official’s dialectically necessarily understanding of an agent-claimant’s suicidal purpose. To develop this scenario it is useful for the presentation of the argument to assign names and genders to the hypothetical agents. Thus Olivia is a hypothetical agent-official (O) who is empowered to interfere with the enabled suicide of suicidal agent-claimant Sam (S). Her judgement as to whether or not she should interfere is based on her assessment of S’s ability to make a sufficiently informed and voluntary choice to commit suicide, which is a judgement about his competence to make that decision. It is argued that O dialectically necessarily must understand that the information relevant to S’s decision covers his generic interests and that he must have the ability to make use of this information. However, before setting out the argument in full, it is useful to consider arguments critical of the premise that agents exist and act voluntarily, in order to provide context for the Gewirthian approach adopted.
5.2.2 Judgements about human capacity for voluntariness
The judgement that a ‘person,’ (without seeking to define this concept further in terms of agency – i.e. an ‘ordinary person’ as conventionally understood) is acting voluntarily is generally considered to be a judgement as to whether he is acting as he desires. However, it is clear that desire is only the basis for his voluntary choice; for a person to be acting voluntarily he must also be free to desire as he chooses, so that his choice to fulfil his desire
basis that it requires a division between ‘first order’ desiring and self-reflective ‘second order’ endorsement of these desires (Frankfurt 1988; Shroeter 2004; Ford 2005; Christman 2012). A person’s ‘self-reflective’ desire is characterized by critics as an action based upon his desires and reasons that are his ‘internal’ desires and reasons, rather than another’s
‘external’ reasons, but the possibility of a person possessing such independent reasoning and desires is attacked by critics as a radical claim given the social nature of personal reasoning (Friedman 1989; Benson 1991; Meyers 2000).
A prominent feminist criticism of the political and practical value of self-reflective reasoning has been advanced by certain feminist theorists, who argue that social conditions are necessary to achieve such a state and therefore it is the social, rather than individual, basis for action that has practical significance (Mackenzie and Stoljar 2000; Benson 2000). Feminist critics argue that a woman who has suffered historic disempowerment and who has come to accept her status, and submit to sexist norms, would be understood to have endorsed her submission on individualistic models of practical reason (eg Benson 1991), but this flaw is not evident on a social reasoning model. The argument that individual models of reasoning argument are compromised in this way has been termed ‘false consciousness,’ which conveys the idea that a woman has embraced a false value of herself which informs her self-reasoning (eg Meyers 2000).3 The plausibility of false consciousness as undermining women’s free choice, such critics argue, gains credence from the fact that there are women who endorse clearly disempowering identities and values, such as extreme sexist values (eg Cudd 2006, 160, 178-80;Oshana 2005, 53-7).
There are broadly two alternative models of non-individualistic self-reasoning that are advanced to address the problem of ‘false consciousness’: ‘relational-reasoning’ and ‘social-reasoning’. The relational view of a person’s self-reasoning finds that personal autonomy is plausible but it cannot be identified separately from the social and historical context within which a person is embedded (Christman 2004, 143). On this view only those persons within empowering social relationships have developed the capacities necessary for ‘self-reflective’
3The theory of false consciousness has historically formed a decisive rejection of the value of the concept of autonomy as a concept of decisive importance to social science (eg Engels 1893 (Trans: Torr 1968): Engels to Franz Mehring) the broader contention of such theories that individual rights are nonsensical or pernicious is rejected by the confirmation of the value of ‘human rights’ interpreted as generic rights under the PGC (4.2).
reasoning, so that a person whose relationships are disempowering cannot necessarily develop the necessary capacities for self-reflection (eg Meyers 2004; Nedelsky 2012, 30-31, 51-53). The alternative social-reasoning thesis is that persons reason in social manner, not individually, which straightforwardly denies that anyone possesses ‘self-reflection,’ and thus the concept lacks practical value (eg Mackinnon 1987). On either view, the permission of enabled suicide for a competent ‘person’ is problematic since it potentially exposes her to self-destruction that is not her true desire despite it being her, individual, rationally considered purpose (eg Wolf 1996, 298-301; Donchin 2000).
As argued in the previous chapter (see 4.2), it is dialectically necessary for an agent to value his purposes and to consider himself to be a rational agent; therefore he contradicts his agency if he denies the existence of the capacity of other agents to freely purpose and reflect (see 4.3; Gewirth 1978, 31ff.). The conceptual approach to false consciousness under the relational and social theses of self-reflective reasoning is therefore ruled out by the PGC, because such approaches deny the practical value of individual selves (eg Gewirth 1978, 125, 156). Olivia (a hypothetical official), as an agent, cannot deny agency in general or she contradicts her own agency, even if she witnesses others embracing disempowering social trends; therefore the social-thesis is clearly incompatible with the dialectically necessary implications of her agency.
However, the idea of ‘false consciousness’ under the relational thesis raises a problem that is indirectly relevant to the PGC. If Olivia were able to accept her own agency and accept that others were equal in dignity and rights, but deny that any other ‘persons’ were agents, then the dialectically necessary implications of her agency would not require her to accept that such ‘persons’ possess generic interests or to grant them generic rights.4If this were possible then she could support the relational-thesis indirectly by finding that while she can act voluntarily, other ‘persons’ cannot, without contradicting the PGC or her contingent acceptance of human rights. However, it is argued below that this argument is not plausible because she is dialectically necessarily required to accept that all other ‘persons’ who display a sufficient level of self-reasoning behaviour are agents or risk harming such ‘potential
agents’ under the PGC; her dialectically necessary recognition of this fact also provides the basis for Olivia’s acceptance that others act voluntarily.
5.2.3 The dialectically necessary and contingent basis for official evaluations of competent suicide
As Beyleveld and Pattinson have demonstrated, the PGC provides a framework for judgements about the existence of moral properties that are not empirically verifiable (2000, 43). This is termed the ‘Precautionary Principle,’ which Beyleveld and Pattinson have set out as follows:
If there is no way of knowing whether or not X has property P, then, insofar as it is possible to do so, X must be assumed to have property P if the consequences (as measured by the [PGC]) of erring in presuming that X does not have P are worse than those of erring in presuming that X has P (and X must be assumed to not have P if the consequences of erring in presuming that X has P are worse than those of assuming that X does not have P). (Beyleveld and Pattinson 2000, 43)
On this basis, even though hypothetical official-agent Olivia (O) cannot strictly know that hypothetical suicidal-agent Sam (S) is an agent, she dialectically necessarily must judge that he does have that status on the basis that he behaves likes an agent (behaviour indicative of self-reflective reasoning and purposivity; see 1.4.4), and therefore that he possesses generic interests; otherwise she risks violating the PGC (Beyleveld and Pattinson 1998; 2000, 41ff.).
If O is also committed to the premise that human beings are equal in dignity and rights, then she must (dialectically contingently) accept that S possesses generic rights (on the will conception) or risk violating the PGC. O must therefore judge that S is capable, as an agent, of exercising his generic right to enabled suicide (see 4.3) on the basis of his behaviour indicative of his self-reflecting reasoning and purposivity. Olivia’s judgement is therefore that S has the dispositional competence to commit suicide, since dispositional competence is what S requires to exercise his generic right to enabled suicide (waive his generic right to life). The judgement by O that S is capable of giving valid reasons to commit suicide, and has the dispositional and occurent competence to weigh these reasons, is therefore dialectically
necessary. However, it is not the case that O is necessarily able to judge S’s dispositional competence to commit suicide. Furthermore, S may not have occurent competence (eg Gewirth 1978, 38).
To illustrate the argument that there can be a dialectically necessarily judged ‘valid reason’ to commit suicide, it is useful to refer to a situation where Olivia would have dialectically necessary insight into Sam’s suicide in order to preserve another’s agency. An example would be where Sam desired to save his dying son by donating his vital organs. Olivia dialectically necessarily understands that Sam could grant equal weight to the continuation of his own agency as he could to his son’s, since their agency is of equivalent value from O’s perspective. The PGC cannot, of course, require an agent to sacrifice himself, but if Sam’s reason for dying was to prevent the destruction of another’s basic-generic interests or that other’s life, then Olivia would have a dialectically necessary commitment to regard such reasons as a ‘good reason’ for his ‘suicide’. On the same basis, where Sam’s suicidal purpose is entirely based on his own condition Olivia has various dialectically necessary insights into that purpose.
Olivia must, dialectically necessarily, understand that, unlike other purposes, the result of suicide cannot be willed by Sam since death is not a generic condition of agency. Sam’s purpose in saving his son was obviously based on his son’s agency; similarly, where Sam’s suicidal purpose is based on his condition, S’s choice must be based on his generic interests, and not upon the result of his destruction, since if his apparent purpose is the latter then this must indicate that he has failed to bring his purpose to bear on his agency. Furthermore, O must judge that S has apparently taken into account the entirety of his generic interests rather than a partial assessment, since she must dialectically necessarily understand that his decision destroys the basis for his generic interests. Finally, O, as an official with the opportunity to interfere, must understand that if she fails to judge that S has not brought his will to bear on his agency when he commits suicide she will have exposed him to destruction of his agency.
The unwanted destruction of S’s agency is a basic harm (Gewirth 1978, 62-63). She must resolve her doubts as to her duty not to interfere with the enabler (E) in order to accept S’s occurent competence as a dispositionally competent agent (in accordance with S’s purpose).
fundamental wellbeing, in accordance with the criterion of more probable harm (see as regards conflicts between agents eg Beyleveld and Pattinson 2000, 44).
In order for Olivia to judge that Sam’s suicide is in accordance with his reasons in practice she must have knowledge of the basis for his reasoning, which she can necessarily establish if he can advert to a condition that undermines his experience of his generic interests (eg wellbeing, see as regards basic harms, Gewirth 1978, 212ff.), and if he can establish that his reasoning process is sufficiently self-oriented and free from interference (see as regards freedom, Gewirth 1978, 251ff.). It is submitted that Olivia’s involvement in Sam’s self-reflecting reasoning about his generic conditions for agency necessitates that she is ‘close’ or proximate to these conditions. Olivia’s proximity to Sam’s agency is established where she possesses reliable evidence of his generic conditions, which may be established simply by straightforward physical and temporal proximity, but only if his generic conditions can be straightforwardly evidenced to her senses – which would not normally be the case. Sam’s condition might be of a nature that cannot be reliably evidenced to O in such a way (eg an internal medical condition that is internally evidenced only, or one that is predicted). The evidencing of generic conditions of wellbeing (eg life) is relatively straightforward compared to generic conditions of freedom which requires assessment of occurent freedom (eg restraint) and longer term control (Gewirth 1978, 253ff.). Olivia’s judgement that Sam’s self-control is sufficient to commit suicide necessitates a significant degree of oversight of his behaviour, given the complexity of his reasoning process and the basic harm to S if her assessment is deficient and she fails to interfere.
The operation of ‘good reasons’ to enable effective evaluation of considered, self-reflecting suicidal desires is illustrated by the example of Mary, referred to in the introduction (1.2.2).
The reason for Mary’s suicide, which her family ultimately assisted in, was second-stage terminal breast cancer (Shavelson 1995, 159).5 Her stepdaughter, Anne, with whom Mary was most intimate, records the first time that she became aware of her step-mother’s condition and suicidal desire, which was many months before the final stage of the disease and her step-mother’s assisted suicide. The conversation was recorded as follows:
5 Mary’s assisted suicide was not prosecuted, but was recorded for posterity by the family as recorded by Shavelson 1995, 158.
[Mary] “The last thing I learned from my mother… was how to die. It was an important lesson. Now I can pass it on to you… As I continue to deteriorate…
it will be obscene to prop up what’s left of me and have the family come take a look at it. So I’ve arranged to die before that.” (Shavelson 1995, 159)
Anne’s immediate response was to encourage her mother to reconsider and to engage the wider family; she did not accept her mother’s wish at that point. Her reason for doubting her mother’s purpose was her mother’s wavering desire to commit suicide on her own terms post-diagnosis (Shavelson 1995, 160). However, as her mother deteriorated, Anne recorded that her step-mother’s desire become more ‘real’ to her (Shavelson 1995, 160). Much later, when Mary was admitted to the cancer ward, the idea of suicide, which till then had been vague and transitive, is recorded as having become definite (Shavelson 1995, 183). Anne describes an implicit understanding that had arisen between them at this point, in favour of suicide (Shavelson 1995, 183).
Mary’s mental state, as evidenced by Anne, is portrayed as engaged and sensitive to the judgement; the conversations recorded between them demonstrate a closeness of personality in which both parties engage with each other’s self-reasoning. Anne sympathised with her step-mother’s prevarications, and argued against the defects in Mary’s reasoning when it was still un-thought out. Mary was familiar with her step-mother’s self-reasoning, since their close relationship was such that they were close as self-reasoners; this is the sense in which closeness or proximity of agency is understood in this thesis. However, for the members of Mary’s family who were less close than Anne, it is recorded that it was the fact of Mary’s terminal cancer that most convinced them (Shavelson 1995, 188). It is argued that the position of an official judging the purpose of a suicidal potentially incompetent agent (PIA) can be analogised to an extent with the position of Anne’s relatives who were not close to Mary’s self-reasoning process; an official’s lack of intimacy means that they would have incomplete information on which to judge Mary’s process of self-reasoning. In the case of an official (Olivia), who is not in a close relationship with a suicidal agent (Sam), she must approach his self-regarding decision in the neutral/formal terms of S’s condition as is
The primary difficulty in framing effective law to achieve sufficient proximity between officials and suicidal agents, enabling the former to achieve the necessary oversight, consists of the significant administrative burden that the practical enforcement of such law would entail (discussed further in subsequent sections, see 5.4-5.6). Furthermore, direct oversight by an official is burdensome to suicidal agents in itself and is therefore counterproductive to an extent. The necessity of official proximity with the purposes of suicidal agents forms the basis of libertarian humanist arguments against legalisation of assisted suicide on the basis that it would require legal intrusion into a situation in which such an ‘alienating’ presence has no place (eg Yuill 2013, 146-47). The following discussion will therefore seek to establish a basis upon which Olivia can demonstrate that Sam has weighed his decision to commit suicide with the minimum proximity that can reasonably be judged to be ‘safe’ in order to minimise both burdens. However, it is the administrative burden that is decisive at this emergent stage in English law, and therefore this chapter will focus upon that burden. It is submitted in the next section that proximity can be reduced within ‘safe’ limits where Olivia’s evaluation has a dialectically necessary basis so that she understands Sam’s ‘good reason’ to commit suicide, limiting the scope of her assessment (5.2.4), but that she must still evaluate S’s competence to advance such a reason (see below 5.2.5).
5.2.4 A dialectically necessary basis for accepting reasons to commit suicide
The dialectically necessary basis of Olivia’s evaluation of Sam’s suicidal decision, as set out in the previous section, is her self-oriented assessment of his generic interests (eg Gewirth 1998, 114). An alternative characterisation of Sam’s decision is that it is ‘on his terms’ in a way that is based on his current experiences, values and identity.6The title of Debbie Purdy’s memoir It’s not because I want to die (2010) captures the essence of this idea, which is that her suicidal desire stems from dying in accordance with her values rather than because she does not value her life (see eg Purdy 2010, 231). Olivia can only accept that Sam has conducted such an assessment of his generic interests on the basis that he has the dispositional competence to conduct it, which requires her to establish that he has the necessary self-control and understanding to make such a decision. However, S’s assessment
6Pretty v UK (2002) 35 EHRR 1, para 58.
of conditions affecting his generic interests can be extremely complex and involve a range of variables whose import he might find difficult to communicate to O.
The more complex is Sam’s assessment of his generic interests, the greater the requisite degree of proximity O must achieve if she is to ensure that he is in a condition to make such an assessment. If Sam commits suicide for no obvious condition at all, for example because S is merely ‘tired of life,’ then his purpose is not capable of being a reason for suicide as a rule, but is, rather, S’s unique assessment of his generic interests; such an assessment necessitates the degree of intimacy between Mary and Anne, considered above, if O is to understand S’s purpose (eg SOARS 2014). If Sam’s condition affects his non-basic generic interests then his purpose can be generalised to an extent, but the information required necessitates a high degree of proximity between O and S. It is submitted that there are conditions that so
The more complex is Sam’s assessment of his generic interests, the greater the requisite degree of proximity O must achieve if she is to ensure that he is in a condition to make such an assessment. If Sam commits suicide for no obvious condition at all, for example because S is merely ‘tired of life,’ then his purpose is not capable of being a reason for suicide as a rule, but is, rather, S’s unique assessment of his generic interests; such an assessment necessitates the degree of intimacy between Mary and Anne, considered above, if O is to understand S’s purpose (eg SOARS 2014). If Sam’s condition affects his non-basic generic interests then his purpose can be generalised to an extent, but the information required necessitates a high degree of proximity between O and S. It is submitted that there are conditions that so