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occasioning actual bodily harm to the parties fell foul of the
criminal law or not. Was consent an effective defence in that
the assaults had been carried out on willing victims?
The judges pointed to the parallel with the situation in
assisted suicide. Suicide had been decriminalised but, they said
bluntly,  a person who assisted another to commit suicide was
guilty of murder or manslaughter.
On a preliminary point, the judges considered that the
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supposed consents in the case of some of the participants were
dubious or worthless. This reminds us aptly of the difficulty that
would attach to the interpretation of the meaning and meaning-
fulness of the expression of the request for death uttered by
persons in situations of extreme suffering in the case of assisted
suicide.
Even had there been no doubt about consent, however, a
majority (three to two) of the judges held that consensual sado-
masochistic practices were unlawful if actual bodily harm was
inflicted. An argument based on the right to private life protec-
ted by the European Convention on Human Rights (now
incorporated into UK law) was rejected. Against the individ-
ualism of rights-based law, one of the judges took the view
that  [s]ociety was entitled and bound to protect itself against
a cult of violence .
Once resort to the right to private life was rejected, it
followed that, as another of the judges said,  it was for Parlia-
ment with its accumulated wisdom and sources of information
to declare [such practices] lawful and not injurious to the public
interest. This is directly opposite to Dworkin s assessment in
which rights are trumps. I will return to that in order to round
off the examination of Dworkin s legal philosophy, but in the
meantime, as regards euthanasia, things have moved on.
Dutch courage?
In April 2001 the Dutch upper house approved a bill to legalise
euthanasia. The devil, though, is, as always in the law, in the detail.
The bill focuses on the circumstances of the doctor s role rather
than on the patient s right to control the timing and manner of his
death. Its purpose, as stated in the preamble, is to grant  immunity
to a physician who, acting in accordance with the statutory due care
criteria laid down in [the] Act, terminates life on request or provides
assistance with suicide . Therefore, a willing doctor who participates
in the patient s death is protected provided that he complies with
the  due care criteria . The particular criterion that I want to pick
out is in 2.1.b, which provides that  the attending physician must be
satisfied that the patient s suffering was unbearable, and that there
was no prospect of improvement . Now this introduces a strictly
objective standard, independent of both the patient s wishes or
fortitude and the doctor s sensibilities.18
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The effect is to place a double lock on legitimate intervention by
the doctor to terminate life or assist in suicide: one, the patient
must make  a voluntary and carefully considered request ; two, the
patient must be in extremis, defined as above. It is generally recog-
nised that the patient in extremis is entitled to palliative treatment
or intervention to ease his suffering even though there is a high risk
or near-certainty that death will eventuate. The effect of the statutory
double lock could well be an increased reluctance to use  risky pain-
relief  techniques without complying with the formalities imposed
by the Act. On the other side, there is little movement towards the
position where the request by the patient would be paramount if,
for example, he believed his life to be worthless or otherwise intoler-
able.19 The motivation behind the imposition of the statutory double
lock arises, I think, from confusion on the moral issue. This is not
whether a person has the right to manage the timing and manner of
his own death but whether he is entitled to call on another person
to involve himself in it. Even Dr Kevorkian, the pathologist known
as Dr Death for his widespread practice of euthanasia in the US and
now in prison following conviction in an exemplary case, claims
that it is the intention to ease suffering which justifies euthanasia.
He does this in a comparison with the intent behind the near-public
Federal execution of McVeigh, the Oklahoma bomber. He said:
A physician s only aim is to end the subject s suffering
(positive result) which unfortunately entails death (negative
result) & The executioner s only aim is the subject s death
(totally negative).20
My contention is that Kevorkian s assessment of the physician s intent
applies exactly to the administration of risky palliative relief while
that of the executioner fits the administration of euthanasia as
Kevorkian understands it.
Political law
Apart from the moral issue of whether euthanasia is justifiable and,
if so, what principles should govern its scope, the more general
question is whether judges do or should have the power and respon-
sibility to decide them when they enter the legal arena. As we saw in
the sadomasochistic case in UK, the court s stance was that the  liberty
interest to inflict bodily harm in pursuit of sexual pleasure on a
willing victim was a matter for Parliament to decide. In contrast,
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Dworkin bases the patient s right to euthanasia on constitutional
principle. Since such principles are general and abstract, they require
interpretation when applied by the judges in individual cases. By
means of interpretation, the US constitutional courts produce super-
ordinate law capable of striking down enacted legislation. Not only
do judges then take political decisions but these decisions tend to
form constellations of a particular political or ideological character.
This characterisation in turn depends on whether a  historicist
or an  interpretativist approach is taken to the reading of the
abstract constitutional clauses. For example, the  due process clause
is generally understood to protect those liberties that are  deeply
rooted in [America s] history and tradition . On the face of it, this
deeply conservative formula appears to express a pure  historicist
approach and to work to make legal change the prisoner of history.
For a right to be applied it would require to have already been
recognised as derived from the Constitution. But against that, the
interpretativist approach decrees that what is unearthed from
tradition are not rights as such but the  basic values which they
reflect. Basic values express themselves in  general principles of
political morality . The problem is that there is no order of values
and, therefore, no hierarchy for the principles which they generate.
So, when principles collide in actual cases, judges who incline
towards the interpretativist tendency come to make political
choices. The following case illustrates how a clash of principle
might be approached in an UK context.21
CASE STUDY
The issue was whether a press report of a trial should be post-
poned until after a second related trial had been concluded.
There is a public interest in the reporting of proceedings in
court. There is also a public interest in the avoidance of any
risk of prejudice to the administration of justice. In this case
these interests clashed. The judges proposed a three-stage test
for the resolution of the conflict, of which the third is germane
to our discussion. The first question was whether reporting
would give rise to a substantial risk of prejudice. If so, the
second question arose; whether a ban would eliminate the risk
and, even if that were the case, whether a less restrictive measure
might achieve the same purpose.
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If the conclusion was that there was indeed no other way of
eliminating the perceived risk of prejudice, the third question
remained:
whether the degree of risk contemplated should be [ Pobierz całość w formacie PDF ]