Authored By: Ayesha Minhas
University of Greenwich
Abstract
The long-standing debate over the legalisation of assisted dying is a complex and controversial issue combining legal, ethical, philosophical, and social considerations. This question raises fundamental issues regarding individual autonomy, the role of the state, and the moral foundations of law. Legal systems worldwide have struggled to reconcile the competing interests of personal freedom, the protection of vulnerable individuals, and societal values concerning life and death.
Different legal theories provide contrasting perspectives on assisted dying. Natural law theory, rooted in the works of Aristotle and Thomas Aquinas[1], holds that human life is sacred and that the law should reflect this by enforcing an objective moral order that prohibits assisted dying. In contrast, legal positivism, as advocated by H.L.A. Hart, contends that law is a product of social agreement and that legislative decisions should determine the permissibility of assisted dying based on public consensus rather than moral absolutes. John Stuart Mill’s principle of liberty further supports the notion that competent individuals should have the right to make autonomous decisions about their own deaths. This article explores these legal theories and their influence on the making and unmaking of laws concerning assisted dying. Additionally, it examines relevant case law and legislative developments across jurisdictions to assess whether assisted dying should be legalised and how legal systems can reconcile ethical considerations with the protection of individual rights.
Introduction
The legalisation of assisted dying is a polarising issue that intersects law, ethics, philosophy, and medicine. It raises fundamental questions about human dignity, autonomy, and the extent to which the state should regulate personal choices regarding life and death. While some jurisdictions, such as Canada, Belgium, and parts of the United States, have embraced legal frameworks permitting assisted dying under specific conditions, others maintain strict prohibitions due to ethical and moral concerns. This divergence reflects the ongoing tension between individual rights and collective moral values.
Legal theories provide different perspectives on the legitimacy of assisted dying. Natural law theory is deeply rooted in religious and moral traditions, asserting that human life is sacred and that the law should uphold this inherent value by prohibiting assisted dying. Thomas Aquinas argued that natural law is derived from divine reason and that human laws should reflect the moral order established by nature[2]. In contrast, legal positivism, articulated by Hart in The Concept of Law[3], asserts that the law should be determined through established legal procedures and social consensus rather than moral absolutes. Meanwhile, John Stuart Mill’s On Liberty[4] supports an individual’s right to autonomy, arguing that competent individuals should have the legal freedom to make decisions about their own deaths as long as they do not harm others.
This article investigates the role of these legal theories in the ongoing debate surrounding assisted dying. By examining case law and legislative trends, it considers whether assisted dying should be legalised and how to reconcile ethical principles with individual autonomy within legal frameworks.
Natural Law & Assisted Dying
The natural law theory, developed by Aristotle and further elaborated by Aquinas, asserts that the law should reflect universal moral principles derived from nature and reason. According to Aquinas, human life possesses intrinsic value, and any act that would intentionally end life would violate moral law[5]. As a result, natural law theorists strongly oppose assisted dying, viewing it as a transgression against the fundamental duty to preserve life.
From a natural law perspective, assisted dying is incompatible with legal norms that uphold the sanctity of life. John Keown argues that the principle of the inviolability of life means that any law permitting assisted dying undermines the moral foundation of society[6]. The slippery slope argument also suggests that allowing assisted dying could lead to broader acceptance of euthanasia, including for non-terminal conditions or those unable to consent. The role of the state, according to natural law theorists, is to uphold moral values and prohibit intentional killing, even in cases of extreme suffering.
Despite its moral foundation, natural law theory faces significant criticisms in the context of assisted dying. Its rigid moral absolutism may not align with contemporary pluralistic societies where diverse ethical beliefs exist. Ronald Dworkin contends that natural law fails to consider the rights of individuals who seek assisted dying to end their suffering[7]. Additionally, in societies with secular legal systems, basing laws on religiously influenced moral values can be seen as inappropriate.
Legal Positivism and Assisted Dying
Legal positivism asserts that law is a human construct that should be determined by legal institutions rather than moral considerations. Hart argues that laws derive their authority from formal legal enactment rather than ethical justification[8]. From a positivist standpoint, laws regarding assisted dying should be determined through democratic processes and legislative authority. The legitimacy of a law depends on its creation through recognised legal procedures rather than its moral foundations. Joseph Raz reinforces this by asserting that legal systems must maintain authority through structured rules rather than subjective morality[9]. Legislative authority asserts that the state has the power to legalise or prohibit assisted dying based on public policy considerations and empirical evidence. Judicial interpretation requires courts to interpret laws based on legislative intent rather than imposing moral judgments.
Critics of legal positivism argue that it lacks moral accountability. For example, Lon Fuller contends that if the law is purely a matter of procedure, then unjust laws, such as those prohibiting assisted dying, despite widespread public support, may still persist[10]. Furthermore, legal positivism does not provide a framework for evaluating whether laws are morally just, limiting its applicability in ethical debates. As societal attitudes toward assisted dying shift, rigid adherence to existing legal structures may hinder necessary reforms.
Liberty and Assisted Dying
The principle of liberty, particularly as articulated by John Stuart Mill in On Liberty[11], emphasises individual autonomy and the right to self-determination. Mill’s harm principle asserts that individuals should be free to act as they choose unless their actions harm others.
Liberty supports autonomy and self-determination, asserting that individuals should have the right to make decisions about their own bodies, including the right to end their lives in cases of unbearable suffering[12]. The minimisation of suffering provides a compassionate option for those experiencing prolonged pain and indignity. International legal precedents demonstrate that assisted dying can be regulated safely and ethically, as evidenced in the case of Carter v Canada [2015][13] which recognised the right to assisted dying for competent adults in specific cases and the Brongersma Case [2002][14] in the Netherlands, which was key to the development of their established and regulated euthanasia framework, both cases highlighting legal pathways to individual liberty in their end of life choices.
However, the principle of liberty is not absolute. Jonathan Glover highlights the necessity of safeguarding vulnerable individuals to ensure that assisted dying laws do not lead to coercion or abuse[15]. Moral and religious objections argue that legalising assisted dying could undermine broader ethical commitments to the protection of life. Keown also warns that initial restrictions on assisted dying could gradually weaken, leading to broader eligibility criteria[16].
Their Limits in the Making and Unmaking of Law
Each legal theory presents strengths and limitations in shaping laws on assisted dying. The key challenges in law-making include balancing individual rights and societal interests. While liberty supports autonomy, laws must also protect the vulnerable. The contrast between moral versus procedural legitimacy highlights that natural law emphasises morality, while positivism prioritises legislative authority, requiring a balance between these approaches. Judicial versus legislative authority demonstrates that courts may influence legal developments, as seen in Carter v Canada[17], but ultimately, democratic processes shape policy.
Conclusion
The legalisation of assisted dying remains a contested issue that engages natural law, legal positivism, and the principle of liberty. While natural law opposes it on moral grounds, positivism defers to legislative processes, and liberty supports individual autonomy. A comprehensive legal framework must balance these competing interests, ensuring robust safeguards while respecting personal choice. The evolution of laws on assisted dying will require ongoing debate, legal adaptation, and ethical scrutiny to protect both individual freedoms and societal values.
Reference(S)
Sources:
Brongersma (HR 24 December 2002, ECLI:NL:HR:2002:AE8772)
Carter v Canada (Attorney General) [2015] SCC 5
Ronald Dworkin, Life’s Dominion (HarperCollins 1993)
Lon L. Fuller, The Morality of Law (Yale University Press 1964)
Jonathan Glover, Causing Death and Saving Lives (Penguin 1990)
H.L.A. Hart, The Concept of Law (OUP 1961)
John Finnis, ‘Natural Law Theories’ Stanford Encyclopedia of Philosophy (2021)
John Keown, Euthanasia, Ethics and Public Policy (CUP 2002)
John Stuart Mill, On Liberty (1859)
Joseph Raz, The Authority of Law: Essays on Law and Morality (OUP 1979)
Thomas Aquinas, Summa Theologica (c 1265-1274)
[1]John Finnis, ‘Natural Law Theories’ Stanford Encyclopedia of Philosophy (2021), s 2.
[2]Thomas Aquinas, Summa Theologica
[3]H.L.A. Hart, The Concept of Law (OUP 1961)
[4]John Stuart Mill, On Liberty (1859) ch 3.
[5]Thomas Aquinas, Summa Theologica (c 1265-1274) II-II, q 64, art 2.
[6]John Keown, Euthanasia, Ethics and Public Policy (CUP 2002)
[7]Ronald Dworkin, Life’s Dominion (HarperCollins 1993)
[8]H.L.A. Hart, The Concept of Law (OUP 1961)
[9]Joseph Raz, The Authority of Law: Essays on Law and Morality (OUP 1979)
[10] Lon L. Fuller, The Morality of Law (Yale University Press 1964)
[11]John Stuart Mill, On Liberty (1859) ch 4.
[12]Ronald Dworkin, Life’s Dominion (HarperCollins 1993)
[13]Carter v Canada (Attorney General) [2015] SCC 5
[14]Brongersma (HR 24 December 2002, ECLI:NL:HR:2002:AE8772)
[15]Jonathan Glover, Causing Death and Saving Lives (Penguin 1990) 150
[16]John Keown, Euthanasia, Ethics and Public Policy (CUP 2002)
[17]Carter v Canada (Attorney General) [2015] SCC 5
