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Fashioning an ethic for life and death in a post-modern society.

Fashioning an Ethic for Life and Death in a Post-Modern Society

"It's Over, Debbie" has provoked a cluster of overlapping debates.(1) Some commentators have focused on the general issue of consent and authority to act. The vignette does not indicate whether Debbie asked for, agreed to, or wanted to have her death expedited. Others have been concerned that the role and significance of medicine would be invidiously changed if physicians not only sustained life, but ushered in death. At stake here has been the self-image and the perception by others of what it means to be a physician. There have also been arguments about slippery slopes and the undermining of respect for life. Many if not most of these debates turn on particular concrete understandings of the good life and the good death. But for public policy in a secular pluralist society such as ours, the question is not so much whether voluntary euthanasia is right or wrong, but whether the state may use force to stop competent individuals from being voluntarily euthanatized when they do not have special preempting duties to third parties. This is the question, and only with respect to voluntary euthanasia, I will address.

Much of applied ethics proceeds as if Renaissance and Enlightenment assumptions regarding the nature of ethics and the authority of the state were still firmly established. They are, however, if not irrevocably undermined, at least in substantial jeopardy.(2) This is not to claim that the majority of individuals in fact recognize how weak the moral and conceptual foundations are for much of bioethics and public policy. But what Nietzsche said with regard to the death of God in the nineteenth century is true of much of ethics and political theory in the twentieth. The assumptions on which they are based have long since expired, at least as supports for generally justifiable public policy. There is far from any agreement, or near-agreement, about how one can establish or identify as canonical a particular normative view of the moral life. It is also unclear how one can justify the traditional sweep of authority claimed by the state. Prior to the Enlightenment, the state had been justified in terms of Divine right. But if one is not to appeal to God (and such an appeal would appear out of place for a secular society), then it might appear that one can determine who is a moral authority and who is in moral authority by determining what it is reasonable to do.(3) If one enforces what is reasonable, what reasonable person could find fault?

But the problem is to determine that moral and political agenda which reason would endorse. It will not help to appeal to ideal or disinterested observers. On the one hand, if one chooses a truly disinterested observer, that observer will not be a partisan of any particular concrete moral viewpoint. It will not possess a particular moral sense, which means it will not be useful for definitively identifying any one moral viewpoint. On the other hand, if the ideal observer to whom one appeals can resolve a controversy, this will be because one incorporates a particular content-full moral sense or a commitment to a particular canonical concrete view of proper deportment. This problem of gaining moral content without begging the question plagues all hypothetical choice theories, including those that appeal to hypothetical contractors. Either they are parochial and beg the question, or if they are not parochial, they are morally useless. Intuitionism will not be of any help either, for any given intuition can be met by a contrary one. Nor will an appeal to consequences help; unless one knows how to weight different consequences, one does not know which outcomes are morally preferable. Neither is there any noncontroversial way of reading off from nature canons for human conduct, because all conclusions in such endeavors presuppose a particular sense of nature's significance. Considerations such as these (for example, that choices of thin theories of the good are always arbitrary) have led John Rawls to acknowledge that his view of justice does not have a universal claim on persons, but only on those who have a commitment to a particular view of society.(4)

What does all this have to do with euthanasia? Unless one can establish a canonical concrete view of the good life (and thus of the good death), it may not in principle be possible to decide in general secular terms when and under what circumstances euthanasia is morally opprobrious or praiseworthy, to be forbidden or tolerated. For instance, all may agree (though this assumption itself is controversial) that humans are interested in achieving liberty, equality, prosperity, and security through social cooperation. However, one will not know what society to endorse unless one knows how one should rank these individual and social desiderata. Any serious exploration of the moral probity of euthanasia must first show how one can in principle answer two cardinal questions: When is it good or bad to ask others for assistance in euthanasia?; to provide others with assistance in euthanasia? When may one use state force to prevent individuals from seeking assistance in euthanasia?; to prevent others from providing assistance in euthanasia? If one cannot see how to answer these questions, in general secular terms they cease to be serious philosophical questions and must be regarded as issues of mere political expediency or Realpolitik. The philosophical question is: who may effectively constrain others so as to impose a particular view of the good life and the good death? And why?

This foundational approach to the problem is unavoidable for more than intellectual reasons: we are a society that is secular and increasingly diverse. In the future it will no longer be plausible to speak of the Judeo-Christian heritage providing a taken-for-granted basis for American life, for we will have an increasingly important representation of Islamic, Hindu and Buddhist believers. Moreover, as medical technology allows individuals to have their lives prolonged, but often under circumstances that they would find unacceptable, many will find it rational to accept treatment only if they can leave instructions about when they would wish to be euthanatized, should the treatment fail. Moreover, increasing life expectancy will mean that more individuals will close their lives severely senile and requiring expensive custodial care, and many will find it unreasonable to set aside resources for care under such circumstances. Instead, many would rather enjoy the resources now or invest them to help others who can enjoy them, and give instructions to be euthanatized should they become profoundly senile. Decriminalized euthanasia would allow many to choose treatment rationally and to avoid useless costs. For them it will appear senseless that lives that do no good for those who live them may not be terminated on request.

The foregoing are practical issues. They indicate why the problem of euthanasia will not go away, and why from a sociopolitical point of view old solutions will not be plausible. However, the central challenge is intellectual: grounding or establishing a particular ethic regarding euthanasia. With different rankings of values the morality of euthanasia will be understood quite differently. Even if one remains a believing Catholic, Jew, or Protestant, eschewing euthanasia on religious grounds, there will be the challenge of establishing in general terms why a secular society compassing a plurality of moral viewpoints may forbid euthanasia. This latter is not merely a political issue. It is an issue where political philosophy is equivalent to natural law as the attempt to establish at least some generally justifiable moral grounds for coercive state force.(5) It is, after all, an issue of secular morality as to what the state may forbid through its extensive coercive means.

One might in the end rail against the above, asking why one should be so bent on foundationalism anyway. But, if one cannot establish a generally justifiable warrant for coercive state force, one has abandoned ethics as a general secular endeavor and given up on providing a general moral justification for the coercive endeavors of the state. The difficulty is that, to justify state force, one would hope to show that the behavior the state is enforcing is morally justifiable; that the state has the authority to impose such behavior on the unconsenting; and that the imposition will produce more benefits than harms.

Given the foregoing skepticism regarding the possibility of grounding a secular ethics on the authority of the state, it might appear in principle impossible ever to meet these three conditions. As already noted, appeals to hypothetical choice theories, consequentialism, natural law, intuitions, or any concrete view of proper action seem doomed to failure.

However, there is a quasi-Kantian escape from skepticism and nihilism. Insofar as individuals are interested in resolving issues without recourse to force, they will be able peaceably to create together a moral fabric for their common life. All that needs to be presumed is mutual respect, a commitment not to use others without their consent. On the other hand, should one reject this endeavor, one renounces the possibility of a general morality and therefore cannot protest with a general moral justification when one is used coercively by others. The argument, in short, has a self-referential character. If you want to play the game of ethics, you can create a moral world with others. If you do not want to play the game of ethics, you cannot complain--at least with a general rational warrant. One is not committed to any particular thin theory of the good, to any particular ranking of values in order to play ethics. All one is committed to is not using others without their consent. One is not valuing autonomy but gaining authority and sustaining a secular moral world by seeking the consent of others and by otherwise forebearing from using them. This allows one still to condemn and coerce murderers, rapists, thieves, and those who violate recorded contracts. It allows one to distribute as welfare entitlements the proceeds from commonly owned goods. And it explains why limited democracies and free and informed consent are so important for post-modern man. They are ways of resolving controversies and creating joint societal undertakings even when no common concrete, content-full oral understandings can be discovered, but individuals together wish to fashion a common policy. Limited democracies and free and informed consent are not so much to be justified on the basis of liberal sentiments about the value of freedom, as they are on the basis of the one remaining, generally justifiable strategy for resolving moral disputes with moral authority. They are expressions of the one source of moral authority when it cannot be derived from reason or from God: the consent or agreement of those involved. Where reason fails, the will to peaceable resolution can succeed, but without content.

This is not the place to develop the foundations for a general secular pluralist ethic.(6) All I wish to indicate is that while it is very likely that something can be saved of the Enlightenment endeavor, it is unlikely to be enough to give moral authority to state attempts to forbid euthanasia. Whatever will be saved is unlikely to include a canonical moral ranking of human values. One is likely to get much less from general secular ethics than one had originally hoped. For example, a blanket, state-enforced prohibition of euthanasia is unlikely to be justifiable in general secular terms. One may be able to develop traditional arguments for limitations on the right to refuse treatment, so as to limit the right to seek assistance in one's death. Duties to dependent minors or undischarged debts as antecedent contracts may provide a basis for morally forbidding euthanasia until one has provided for the minors or discharged the debts. Those obligations are likely to be defeated, leaving one free to act, if one is terminal and so ill that such provisions cannot be made. Similarly, moral limits may be placed on the right of the nonterminally ill to seek assistance or to be aided in ending their lives by special obligations such as those of a spouse or a member of the military.

But beyond such special obligations, it is unlikely that one will be able to establish that citizens have relinquished control over their own lives by being members of a large-scale state so as not to be morally free to seek euthanasia. The notion of society as a vehicle for the peaceable resolution of controversies, the protection of contracts, and the distribution of proceeds from common resources does not commit one to the state having the moral authority to stop competent individuals from contracting for euthanasia, unless there are special duties to third persons. The point is that one cannot meet the three conditions for justified state authority sketched above. First, one will not be able to show that it is wrong for competent individuals to end their lives with or without the assistance of others, if those individuals do not have special duties to third parties. To establish that it would be wrong would require establishing a hierarchy of values that subordinates the value of individual liberty to other special social values. However, if one cannot discover a canonical ranking of values, then one cannot establish in general secular terms whether it would be right or wrong to end one's life in the absence of special countervening duties. As a result, one could not establish that the state, in acting to forbid euthanasia, would be acting rightly. Moreover, if the very notion of the social contract or of the state does not include conveyed authority to act coercively in such circumstances, then the second condition is also not met. Finally, because of the failure to establish a canonical ranking of social desiderata, one will not be able to show whether a policy of tolerating euthanasia will lead to more benefits than harms. One will not know what ranking of values ought to be applied to assess the consequences.

This analysis is a backdoor introduction to the moral equivalent of the legal notion of rights to privacy, areas where the state must show a compelling interest before it can constrain individual choice. Here the argument has been that, where there is no clear justification for state authority, individuals are morally free to act. The right to euthanasia, like most other rights to act freely by oneself or with consenting others, is established negatively. It does not depend on some claim that such a liberty would be good, beneficial, or worth endorsing. Rather, it is a function of the failure to establish the authority of others, in particular, the state, to intervene coercively. With this, one comes face to face with the plausible limits of a secular state. Much must be tolerated because of the limits to the justifiable use of coercive state force. One is constrained to acquiesce in what is tantamount to a two-tier moral life: the first, the world of moral understandings and intuitions that frame the concrete life of individuals when they meet as collaborators in a shared vision of the good life and the good death, and the second, the fabric of moral collaboration and negotiation that binds individuals together in peaceable joint endeavors when they meet as moral strangers. As a result, though one may deplore euthanasia because of one's beliefs as a Catholic, Jew, or Protestant, it is very likely not an act for which one can plausibly justify coercive state restraint in general secular terms.

One will need to live with individuals' deciding with consenting others when to end their lives, not because such is good, but because one does not have the authority coercively to stop individuals from acting together in such ways. In a secular, pluralist society one will need to accept euthanasia by default. One need not look to The Netherlands or elsewhere for models of what this might be like. In Texas up until 1973, neither suicide nor aiding and abetting suicide were criminalized. In articulating what was the old law in Texas, the Texas Supreme Court drew the line between what might be morally wrong and what the state would forbid:

It may be a violation of morals and ethics and reprehensible that a party may furnish another poison or pistols or guns or any other means or agency for the purpose of the suicide to take his own life, yet our law has not seen proper to punish such persons or such acts.(7)

Like it or not, given the moral limitations of the authority of the state, we are all probably headed for Texas. (1)Anonymous, "It's Over, Debbie," Journal of the American Medical Association 259:2 (1988), 272. (2)There have been a number of recent works underscoring the collapse of the Enlightenment's assumptions regarding the capacities for reason. See, for example, Alasdair MacIntyre, After Virtue (Notre Dame, IN: University of Notre Dame Press, 1981); Richard Rorty, Philosophy and the Mirror of Nature (Princeton, NJ: Princeton University Press, 1979). For a general overview of some of the problems, see Kenneth Baynes, James Bohman, and Thomas A. McCarthy, After Philosophy (Boston: MIT Press, 1987). (3)An elaboration of the distinction between being in authority and being an authority is provided by Richard Flathman, "Power Authority, and Rights in the Practice of Medicine," in Responsibility in Health Care, George Agich, ed. (Dordrecht: D. Reidel, 1982), 105-25. (4)John Rawls, "Justice as Fairness: Political Not Metaphysical," Philosophy and Public Affairs 14:3 (1985), 223-57. (5)The concept of natural law developed as the Romans faced the challenge of administering an empire encompassing divergent religions, cultures, and races. Thus, one finds the Institutes of Gaius (Book I, 1), published circa A.D. 161, speaking of the jus gentium (the law of nations) as the law that natural reason establishes. By the time of Justinian in the sixth century, the concept of jus naturale (the law of nature or natural law) is well established in his Institutes (Lib. I, Tit. II, published A.D. 533). (6)H. Tristram Engelhardt, Jr., The Foundations of Bioethics (New York: Oxford, 1986). (7)Sanders v. State, 54 Tex. Crim. 101, 105, 112 S.W. 68, 70 (1908). For an account of how the law changed consequent upon immigration from the invading states of the Late Unpleasantness, see H. Tristram Engelhardt, Jr. and Michele Malloy, "Suicide and Assisting Suicide," Southwestern Law Journal 36 (November 1982), 1003-1037.
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Title Annotation:Mercy, Murder, & Morality: Perspectives on Euthanasia
Author:Engelhardt, H. Tristram, Jr.
Publication:The Hastings Center Report
Date:Jan 1, 1989
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