The right to commit suicide: quality of life and inviolability of agency

2.5.1 Introduction

17See also Davis 1984 and Price 2006.

18Haas v Switzerland (2011) 53 EHRR 33, Ulrich Koch v Germany (2012) (App no 497/09) judgment of 19^th July 2012, Gross v Switzerland (App no 67810/10) judgment of 14^thMay 2013. See further 3.4.3.

The moral value attributed to life that is defended by rule-utilitarian and rights-based moral theorists differs in fundamental respects from the sanctity of life view set out above.¹⁹ Utilitarians defend life as having an instrumental value because, they argue, life enables us to have positive experiences, and our fear of being killed undermines our enjoyment of our lives (Glover 1977, 194ff.). In other words, for a utilitarian, the quality, as opposed to the quantity, of life is the reason that life is valuable (Seneca 4BC-65AD). An alternative view is that life is valuable because free agency is uniquely valuable and life is the basis for that. Unlike the duty-based sanctity of life view to the effect that human agency is uniquely valuable and therefore that our fundamental interests must be preserved regardless of our dispositions towards them, the rights-based view finds that freedom is essential to valuing our lives (eg Beyleveld and Brownsword 2001, 263). This position, which may be termed the ‘inviolability of agency’ position, is most readily defended from a deontological rights-based perspective.

This chapter proceeds in 2.5.2 to consider the quality and inviolability conceptions of the value of life. It then (in 2.5.3) considers the rule-utilitarian and (in 2.5.4) rights-based positions advanced to defend them. Chapter 4 will set out the reasons for preferring the Gewirthian rights-based approach as opposed to other approaches, including rule utilitarianism.

2.5.2 Quality of life and inviolability of agency

Advocates of the quality of life approach consider continued life to be valuable when it contains ‘good’ experiences. On this view, it is not life but the experience of life entailed by existing that is valuable. Life is therefore of instrumental value to a person in that his experiences are of sufficient quality for him to enjoy his life (Harris 1995, 10ff.). This view gained favour briefly in Renaissance Europe alongside the early development of European liberalism and human rights (Minois 1999, 86f.; Griffin 2008, 9ff.).²⁰ As regards enabled

19 There is a degree of overlap between the rights-based and rights-utilitarian conceptions of life and it is important not to overstate the commitment to any one conception within either camp.

20 An example of this is the work of clergyman/metaphysical poet John Donne whose Biathanatos (1608)

suicide the continuation of a person’s existence which is characterised by negative experiences, for example extreme suffering, is viewed as not being in his interests (Huxtable 2007, 15). Therefore where a person’s condition is one of persistent suffering, or he is ‘tired of life’ (eg SOARS 2014), it is argued that no moral duty should be imposed upon him to continue his life, or on others to require that another should abstain from ending it at his behest (Singer 1993, 83ff.). The conception of life as instrumentally valuable to human interests is connected to the function of human rights as protecting the fundamental experiences of humans, which include, most significantly, fundamental human physical/psychological integrity or avoidance of extreme suffering (eg captured in Article 3 ECHR).

The instrumental value of life under a quality of life view may be contrasted with a further approach, which finds that it is not enjoyment of experience but the willed continuation of agency that is valuable. On this view an individual who wishes to commit suicide (who does not will to continue his agency) is morally entitled to do so, and others may be under a duty to enable him to do so (eg Doyal 2001). This conception of life is sometimes described as being based on the value of being able to choose life’s worth for oneself (Huxtable 2007, 13);

it is the life chosen autonomously by a person that is viewed as having intrinsic value on this view (eg Dworkin 1993, 217; Doyal and Doyal 2001). This value can be described as the

‘inviolability of agency’ because intentional destruction of free agency is always impermissible. It is necessary to distinguish the conception of the inviolability of agency under rights-based theory from the duty-based sanctity of life position considered above.

Briefly, the rights-based view finds that a suicidal purpose does not necessarily contradict one’s unique value as a human with the capacity for agency (eg Beyleveld and Brownsword 2007, 273). On this view it is only a self-aware person with the capacity for agency who is able to decide to ‘determine’ his existence by bringing it to an end at his instigation (Harris 1985). Controversially, on the rights-based view, where suicide is a freely chosen purpose then it is one that is arguably capable of having a similarly fundamental value to the choice to continue to live (eg Ford 2005). Interference designed to frustrate a suicidal purpose is

judgements upon them' (Donne 1608, 1-2). The work goes on to express the view that rational suicide should not be considered immoral, contradicting the prevailing Christian thought of previous centuries. The enlightenment philosophers drew upon classical Greek philosophers, most famously the Stoics (prevalent 332BC-180AD eg Seneca (4BC-65AD: letters 70, 77)).

therefore potentially as serious a violation of the fundamental rights of a free agent as is (unwanted) killing of that agent (see 4.4).

The inviolability of agency view of the value of life captures another theme that is prominent in contemporary human rights discourse, which is that of protecting individuals from undue interference with their freely chosen purposes regarding their fundamental interests, even if those purposes are judged to be self-destructive (eg Lewis 2007, 14-15). Moral and legal human rights arguments for enabled suicide refer to the ‘dignity of human life’ requiring control over the continuation of one’s life, regardless of the quality of one’s experiences (eg Harris 1985, 15-18; see also Pretty v UK discussed in chapter 3).²¹ This is illustrated by the popular call for ‘liberty at the end of life’ that lies behind calls for human rights-based reform in the context of prohibitions upon assisted suicide and voluntary euthanasia in Western countries (eg Pretty v UK).²²As Dworkin puts it: ‘[m]aking someone die in a way that others approve but she believes is a horrifying contradiction of her life, is a devastating, odious form of tyranny’ (1993, 217). Libertarian arguments refer simply to a liberty to die, stemming from the notion of self-ownership (eg Battin 1996, 163–164). More prevalent, however, is the argument for autonomous suicide, so that only competent agents possessed of relevant understanding are able to exercise the right (Battin 1996, 115).

The inviolability of agency position as a basis of rights-based legal reform necessitates strict safeguards to minimise the occurrence of insufficiently wanted or informed suicide occurring (eg Beyleveld and Brownsword 2001, 263). An individual who committed suicide when subject to coercion or under false premises would have suffered a violation similar to that suffered by a person who had been murdered (Beyleveld and Brownsword 2007, 274). The risks created by certain forms of enabled suicide, taking into account requirements of law and public policy, might therefore justify prohibition (eg Beyleveld and Brownsword 2007, 273ff.; see further chapters 5-9).²³ There is therefore a limited possibility for agreement between the natural law-based sanctity of life view and the inviolability of agency view. In

21(2002) 35 EHRR 1 [58].

particular, the threat of a ‘slippery slope’ to unwanted killing raises a crucial challenge to the argument for the right to enabled suicide under an inviolability of agency view (Dworkin 1991, 216; cf Keown 2012, 101).

2.5.3 Rule-utilitarian approaches

The view that what is morally right is the maximization of the wellbeing or welfare of a community provides the foundation for all utilitarian approaches; versions of utilitarianism that support ‘fundamental’ rights, such as human rights, are rule-utilitarian (eg Brandt 1992, 199).²⁴ This theory cannot, of course, justify human rights’ peremptory status in relation to a particular community’s welfare, but rather accepts such rights as being particularly weighty considerations in the utility calculus, so that the State’s responsibility to secure a person’s fundamental right is only displaced where so doing would be severely detrimental to the welfare of the community (eg Glover 1977, 83-85). A rule-utilitarian approach does not directly support the Hohfeldian conception of a human right above, but a rule-utilitarian position can be advanced to defend that conception indirectly, and rule-utilitarianism has been advanced as a basis for the Convention rights (Dembour 2006, 68ff.).²⁵

The basis of community wellbeing/welfare in terms of utilitarianism is a utility calculus based on an aggregate calculation of the wellbeing of all individuals in that community; rule-utilitarians argue that the adoption of rules in the form of rights is defensible since if they were not recognized that would undermine the overall experience of wellbeing (Battin

24 As is obviously well established, utilitarianism is contrasted with deontological theories in that moral rightness relies on the future consequences of actions for all, rather than on the actions in themselves for individuals (see eg Kagan 1998). For the purpose of this section it is only necessary to outline the fundamental characteristics of utilitarianism, which is summed up by the classic (act) utilitarian claim that a person’s action is morally right if it ‘maximizes the good’ (Bentham 1789; Mill 1861; Sidgwick 1907), so that on a calculus of good outcomes against the bad the good outcomes are maximised. The nature and measurement of this good, within classical utilitarianism, is a hedonistic measure, calculating the pleasures and pains (of people) associated with the consequences of an act, rather than abstract values such as ‘life’ or ‘autonomy’ (see eg Hutcheson 1755). The interests of all people are equally counted within the calculus, and these interests are capable of being aggregated. In terms of personal action it is the actual (rather than foreseen) and direct consequences of an act which should be focused upon.

25Utilitarian ethicists argue that human rights are better characterised as advancing of utility within societies that adopt a common morality (Talbott 2005, 134; Nickel 2006, 47).

1996).²⁶ The utility calculus is not a ‘vitalist’ calculus that maximizes life; such an approach would, of course, undermine the welfare of the community, which would then devote its resources to a unlimited effort to sustain life (eg Harris 1985, chapter 4). Since the principle of utility (on a rule-utilitarian perspective) defends the quality of life approach, it does not in principle require recognition of a right to life that conflicts with a purported right to suicide or enabled suicide. On this basis the rule-utilitarian conception of the right to preserve life is inherently not in conflict with the right to discontinue life.

Sanctity of life theorists criticise this position as counter-intuitive since most people would find that living was more important than experiencing or ‘choosing’ (eg Finnis 1995). They further argue that the failure to account for the fundamental status of the right to life is part of a broader moral failing of the rule-utilitarian approach in that it cannot require that States accept fundamental moral rights without departing from the utilitarian premise of maximisation of community welfare (Finnis 2011, 213ff.).The preservation of life at great cost to the community creates a challenge for rule-utilitarians who seek to defend the weight accorded to a fundamental right to life by society (Keown 2002, 45ff). A utilitarian principle of welfare maximisation arguably struggles to defend adequately the intuition that certain aspects of the wellbeing of an individual should be deemed ‘fundamental’ and therefore unable to be weighed against the effect on the community created by protecting the ‘non-fundamental’ wellbeing of other individuals (eg Finnis 1995). A rule-utilitarian response to this criticism is that a right to life is justifiable, but not the near-absolute and intrinsic right to life that is defended by sanctity of life theorists (eg Glover 1977, 83-85). They defend the quality of life judgement on the basis that it is not mere existence that is intuitively valued by people (Harris 1985, 15-22). The continuation of existence is valued instead as the continuation of desired experience and agency (Cholbi 2011, 81ff.), rather than the human capacity for agency and experience (as Keown argues 2002, chapter 4).

In terms of the hypothetical claims to “end my life,” “help me die,” “end my suffering” and

“let me die” (see 1.3.3.) a rule-utilitarian-based criterion would defend enabled suicide as an interest in all cases, but especially where the claimant was experiencing a low quality of life,

as in the case of the “end my suffering” claim in particular (eg Almeida 2000). The justification for a right to enabled suicide from a rule-utilitarian welfare maximising perspective is primarily applicable to the situation where the claimant (S) desires that the enabler (E) should help him commit suicide when he is suffering or dying, and therefore the alternative to suicide is ‘merely’ preserving his life (perhaps also at great expense to himself and to his community).²⁷The claimant’s choice is not absolutely decisive in this case; rather, it is an interest that is taken into account alongside the quality of his life. For this reason possession of a right to the interest does not depend on control over it, so a rule-utilitarian-based human right to enabled suicide is not on the will-conception (eg Glover 1977, 158-62).

A rule-utilitarian approach to the State’s responsibility to secure the human right to life when a person is suffering, as in the “end my suffering” situation is, prima facie, less pressing than the duty to preserve the right to life of the other hypothetical claimants (eg Brandt 1980;

Almeida 2000). The distinction between the value of different persons’ lives runs contrary to a founding intuition of moral human rights theory that all human lives are similarly valuable (eg Keown 2002, 40). The apparent difficulty of defending the equal value of lives as a basic good has formed a powerful basis for slippery slope criticisms of utilitarian-based arguments for voluntary euthanasia (eg Finnis 1995). Various critics highlight the inherent contradiction between utilitarianism and a principle of seeking to value lives equally (Keown 2002, 43ff.;

Griffin 1989); they argue that reform based upon utilitarian premises would ultimately favour the healthy, ‘inexpensive’ members of a community and disfavour the vulnerable and sickly members (eg Keown 2012, 157-59).

The rule-utilitarian approach is influential in moral theory that defends a right to enabled suicide (eg Brandt 1992, 323ff.), and it provides a plausible interpretation of the findings as to Article 8 ECHR in Pretty,²⁸ which is considered in the next chapter. However, the criticism that autonomous suicide and euthanasia may in effect come to be conflated with marginally autonomous suicide and euthanasia by utilitarians is one that must be taken seriously (eg Gorsuch 2009, 172-76). The sanctity of life basis for such criticisms obviously goes further

27Controversially, on such a judgement it is relevant that the community could divert health resources to restore a greater number of healthier individuals members to a state of wellbeing (eg Almeida 2000).

28Pretty v UK (2002) 35 EHRR 1.

than would be supported on the rights-based position adopted in this thesis, but it is a criticism of theorists in both camps that the rule-utilitarian position does not justify protection of life to an extent that is compatible with the fundamental status of the human right to life (Dworkin 1993, 204; Gormally 1995). On this view the hypothetical claims to enabled suicide should therefore be of equal moral weight in principle. The rights-based approach is discussed in outline next, and the Gewirthian rights-based approach is further developed in 2.6 (and then in chapter 4).

2.5.4 Rights-based approaches

The rights-based defence of the human right to enabled suicide stems from the implicit commitment to non-interference with the ‘inherent rights’ of persons within such theories.

The essence of rights-based morality is a supreme right, or a principle of rights. This supreme right, or principle of rights, then justifies the nature of discrete rights, such as the right to life.

Deontological rights-based theories find consent to be integral to the existence of strict moral duties (eg Nozick 1974, 228), and consent is inherent in the conception of a ‘right’ which is relied on in this theory (Nozick 1974, 139; a right under the will conception (2.2.4)). Within this approach there are, broadly speaking two position: agent-centred deontological rights-based theories, and what Alexander has termed ‘patient centred’ theories (2004). The terminology refers to the distinction between a focus on action generally and the limited focus in patient-centred theories to an agent who is acted upon. Patient-centred deontology is based on self-ownership, and in particular on the right not to have one’s body or property used as a means to create benefit for another without one’s consent (eg Nozick 1974). Agent-centred rights-based theory, in contrast, identifies moral duties that are intrinsic to agency (Gewirth 1978, 77; Gewirth 1982) and in that sense is similar to the deontological duty-based theory of the sanctity of life considered above (eg Huxtable 2005). However, rather than focus on the duties to further an agent’s interests, the focus of agent-centred rights-based theory is on duties to further an agent’s exercise of control over his wellbeing (2.2.4).

Patient-centred accounts of rights-based morality are conceived in giving or reason-blocking terms. Briefly, on this view, actions – particularly State actions – cannot be taken

82-90) although Dworkin did not explicitly adopt a deontological position to defend his rights thesis. The construction of moral requirements under such theories can be agent-neutral, in the sense that a claimant possesses a right that requires ‘everyone’ to act to respect it (eg Alexander 2004), or agent-relative, meaning that there is a rational basis on which discrete agents should refrain from interference with the claimant’s right (Gewirth 1978, 114ff.). It is the latter conception which is compatible with the Hohfeldian framework set out in 2.2, as discussed below (see 2.6).

In terms of the discrete right to life, deprivation of life is only impermissible if it involves non-consensual interference with another’s body (Mack 2000). The response of such patient-centred theories to the right to suicide is emphatic in principle, regardless of whether the claim is “take my life,” “help me die,” “end my suffering” or “let me die” (1.3.3): it is axiomatic that officials should not interfere with another’s body without his consent, irrespective of the life-preserving utility of the action (Cholbi 2011, 87ff.). Patient-centred accounts are narrow in their moral focus; this narrowness is criticised generally as an implausible account of morality (eg Scheffler 1988), and of human rights (eg Chwaszcza 2010, 347-8).

The agent-centred account of rights-based morality that will be explored in this thesis, that of Gewirth, does not adopt a narrow reason-blocking moral methodology. Gewirth’s account sets out a supreme principle of rights in terms of the conditions of agency that are generic to all people (or agents). These generic rights support an agent-relative rule similar²⁹ to a Golden Rule principle (eg Flew 1979), which he terms the Principle of Generic Consistency (PGC): ‘[a]ct in accord with the generic rights of your recipients as well as of yourself’

(Gewirth 1978, 135).³⁰ The generic rights to the conditions of agency are rights on the will conception (above 2.2.4) because the generic conditions of agency are necessary for an individual agent to value its purposes – in other words an relative value. The agent-relative approach to the generic rights contrasts with the agent-neutral value ascribed to conditions of agency under other deontological supreme principles, such as the Categorical

29But distinct in crucial respects, in particular because the PGC sets out a principle with a necessary content and form (Gewirth 1978, 164ff.).

30This brief outline is expanded upon in 4.2 and 4.4.

Imperative (Kant 1785 (trans. Paton 1948), 88-89). Despite the focus on agency, the theory supports an extensive range of rights that are explicitly coterminous with human rights (Gewirth 1982). It does so by adopting a deontological consequentialist approach to the permissibility of actions (Gewirth 1978, 216).

Rights-based approaches are generally criticised on the basis that they are narrow, absolutist,

Rights-based approaches are generally criticised on the basis that they are narrow, absolutist,