Listers, this is Part II of an ongoing in depth discussion on euthanasia – “the right to become dead.” The list relies on the wisdom of Leon Kass and his discussion of how the right to become dead isn’t even compatible with the modernity’s own philosophy. It should be noted that the article presupposes the right to become dead is not a right in the classic sense and certainly not in the Catholic sense.

The point of the discussion is to show the modernists that the “right to become dead” isn’t even a proper right within their own philosophy. Read Part I here: The Right to Become Dead: 6 Introductory Thoughts on Assisted Suicide.

 

7. A Brief Diatribe On Rights Language

 Are the ‘right to die’ arguments compatible with the Hobbesian notion of a blameless liberty?  Before addressing this question, Kass has a brief section on why people seek a right to die. However, tucked among the commentary of fearful patients and societal concerns is a brief but telling diatribe against the dangers of thinking in terms of individual rights. He states, “truth to tell, public discourse about moral matters in the United States is much impoverished by our eagerness to transform questions of the right and the good into questions about individual rights.” [1] These individual rights are marked with a “non-negotiable and absolutized character,” which serves as a “most durable battering ram against the status quo.” [2] Kass’ vitriolic view continues: “never mind that it fuels resentments and breeds hatreds, that it ignores the consequences to society, or that it short circuits a political process that is more amenable to working out a balanced view of the common good.” [3] The battering ram wielding citizen simply goes “to court and demands [his] rights.” [4]

Truth to tell, public discourse about moral matters in the United States is much impoverished by our eagerness to transform questions of the right and the good into questions about individual rights.

However, as soon the critique of rights per se began, it appears to subside. Oddly enough, Kass then returns to the original question and begins to critique the right to die by the traditional modern system of rights. The shift in focus leaves the reader with several questions. If the canon of individual rights impoverishes the question of what is good, then what is the canon? Moreover, if the isolated system of individual rights is deficient, why does Kass continue to critique the right to die by an impotent system? Setting these questions aside, Kass continues to question whether a right to die is justified within a modern natural rights context.

 

8. The Right to Die is Nonsensical, Even to the Modern Philosophers

According to the “great philosophical teachers of natural rights, the very notion of a right to die is nonsensical.” [5] The philosophical foundation for natural rights is self-preservation. “As we learn from Hobbes and from John Locke,” observes Kass, “all the rights of man, given by nature, presuppose our self-interested attachment to our own lives.” [6] Immediately the contradiction of trying to predicate a right to self-negation upon a foundation of self-preservation is clear. This distinction is not only clear to those who argue against a right to die, but even to those who argue for it. The German-born philosopher Hans Jonas (d. 1993) – an advocate for the right to die – comments, “every other right ever argued, claimed, granted, or denied can be viewed as an extension of this primary right [to life].” [7]

 

9. Locke’s View on Suicide and Self-Ownership

While arguably the right to die via the aid of medical technologies may be a new phenomenon, certainly the question of a right to commit suicide was not lost to the modern thinkers. Locke states that man “has not [the] liberty to destroy himself,” because nature “teaches all mankind… no one ought to harm another in his life, health, liberty, or possessions.” [8] However, one could see Lockean thought backing a right to die: “yet every man has a property in his own person; thus nobody has a right to but himself.” [9] Is it the case then that Locke’s apparent belief in self-ownership could support the right to die? Returning to the notion of a classical right, Kass sees that these rights were asserted against something or someone; thus, Locke’s self-ownership “is less a metaphysical statement declaring self-ownership than a political statement denying ownership by another.” [10] Lockean self-ownership could be rendered: “my body and my life are my property only in the limited sense that they are not yours.” [11] In the classical sense of natural rights, there appears no foundation for a right to die; moreover, there is certainly no “right to the assistance of others,” as the so-called obliged suicide-assistant “has neither a natural duty nor a natural right to become an actual assistant-in-death.” [12]

What of the government, can it be held in obligation to assist in death? “The liberal state,” notes Kass, “instituted above all to protect life, can never countenance such a right to kill, even on request.” [13]

 

10. Rousseau & Kant Yield No Room for a “Right to Die”

However, how can the late modern thinkers be seen to address a right to die, especially those who set nature aside? Neither Jean-Jacque Rousseau nor Immanuel Kant can be seen as advocates of a right to die. Regarding Rousseau, Kass notes Rousseau’s “complaints about the ills of civil society” demonstrated in the fact it threatens “life and limb” instead of its “main purpose” in protecting them.[14] Rousseau calls upon men like himself – those who lack the simplicity to simply return to the woods and eat “grass and acorns” – to “respect the sacred bonds” of the society, to love and serve “their fellow-men,” and to support the “good and wise princes who will know how to prevent, cure, or palliate that pack of abuses and evils always ready to overpower” the citizens. [15]

As Kass observes, the state supports life and the citizen cultivates that support. Again, a life-centered political base does not make room for a right to die. Turning to Kant, Kass sees that “the self-willed act of self-destruction is simply self-contradictory.” [16] Kant states, “to dispose of oneself as a mere means to some end of one’s own liking is to degrade the humanity in one’s person, which, after all, was entrusted to man to preserve.” [17] Kass comments on the “heavy irony that it should be autonomy, the moral notion the world owes mainly to Kant, that is now invoked as the justifying ground of a right to die.” [18] Through a Kantian lens, autonomy is the “self-legislation” of the “rational maxim” – an adherence to one’s “true self,” i.e., “with one’s rational will determined by a universalizable” moral maxim. [19] Neither the early moderns nor the late moderns yield any space for a right to die ethic. Whether it be a principle of self-preservation, a life-centered polis, or a notion of the dignity of humanity, neither a classical right nor a welfare right of assisted-death can be supported.

 

11. The Right to Die and Nietzschean Autonomy

However, the present modern notion of autonomy has come to mean “doing as you please,” which as Kass explains, is “compatible no less with self-indulgence than with self-control.” [20] Leaving behind the nature of the early moderns and the rationality of the later moderns, the new “Nietzschean self” holds only to “his true ‘self’ rather in unconditioned acts of pure creative will.” [21] The autonomy of the individual is rooted in the will. Without a normative nature or any rational maxims, it seems the right to die is unhindered and viable. However, Kass still observes several problems for the right to die argument. “First, one cannot establish on this basis a right to have someone else’s assistance in committing suicide,” because the patient’s autonomy would then have to violate the unwilling assistant’s autonomy. [22] Second, what if the assistant-to-death is willing? The autonomy of the patient could justify his or her own suicide, but it cannot justify or “ground” the assistant’s right to kill the patient. [23] Third, the patient – granted the right could even be grounded – in question would have to be “mentally competent and alert” in order to request assisted suicide. [24] Kass notes this would rule out the euthanasia of the comatose, vegetable, or mentally incompetent patient.

Drunk off its political and scientific successes, modern thought and practice have abandoned the modest and moderate beginnings of political modernity.

What if they had left in their will to be euthanatized? The question is philosophically problematic, as Kass states, because “the person who gave them long ago may no longer be ‘the same person’ when they become relevant,” e.g., “can my 63-year-old self truly prescribe today the best interests for my 75-year-old and senile self?” [25] Further complicating the scenario, Kass posits: “it is self-contradictory to assert that a proxy not chosen by the patient can exercise the patient’s rights of autonomy.” [26] A right to die intrinsically places an obligation on some other third-party assistant; however, setting aside the fact that the individual lacks the ground to claim such a right, it appears that neither the medical community nor the government can assist the individual in suicide.

However, Kass’ critiques and the Nietzschean based “new rights” have a major point of contention: the critiques rest on logic, while the new rights do not. Following Nietzsche, the new rights – in distinction to the classical or the welfare rights – rest upon the will and are therefore formed by a notion of self-becoming and creativity. These “creative beings are open-ended” and the “society of new rights is characterized by a loss of predictability and normality.” [27] The bearer of the new rights “does not even flinch before self-contradictions; indeed, he can display the triumph of his will most especially in self-negation.” [28] Without nature as a standard or any other externality hindering the human will, can there now be a right to die? “Here at last is the only possible philosophical ground for a right to die: arbitrary will,” state Kass, a will “backed by moral relativism” – “which is to say, no ground at all.” [29]

 

12. Where Suicide is Now the Glorious Act of the Will

 “Drunk off its political and scientific successes,” states Kass, “modern thought and practice have abandoned the modest and moderate beginnings of political modernity.” [30] The theory of natural rights predicated upon self-preservation and life has given way to the “non-natural rights of self-creation and self-expression.” [31] These “new rights” impose upon the natural self an artificial product of the human will. Instead of being formed by nature, history, or God this new self-creation finds its authenticity in being able to assert its will against those very externalities. As Kass notes, the will of the self-created individual – protected by the new rights – can assert itself against its own body, the “rules of society,” and even the “dictates of reason.” [32] The will can strike out against those things which form it and give it life. It is no surprise then that for the individual of self-creation “self-negation through suicide and the right to die can be the ultimate form of self-assertion.” [33] The right to die is now not only an act of compassionate charity and the correction of a cosmic injustice, but the final and glorious act of man’s own radically autonomous will.

Kass sees three dangers arise as this new right to die permeates the modern ethos. First, the affirmation of an individual’s right to die “will translate into an obligation on the part of others to kill or help kill.” [34] What if the assistance was not obligatory, but only those who wanted to aid in death would do so? Kass still believes “society would be drastically altered.” [35] The alteration would be particularly tragic if the state was reluctant to take up the role as “euthanizer,” because “it would surrender its monopoly on the legal use of lethal force.” [36] Moreover, it should be noted the power of lethal force lies within the government in order that it would “protect innocent life, its first responsibility” – a stark contrast to the utilization of that lethal power upon the willing innocent. [37] Second, the practice will inevitably spread beyond those who “knowingly and freely request death.” [38] Kass notes that many who would be thought to be candidates for euthanasia either are in a doubted rational state or simply lack rationality altogether. The pressure to euthanize the incoherent and even the irrational unwilling will steadily increases and the practice itself will be seen to be more and more legitimate. The third danger of accepting the right to die is the impact it will have on the medical community. “The medical profession’s devotion to heal and refusal to kill – its ethical center,” according to Kass, “will be permanently destroyed, and with it, patient trust and physicianly self-restraint.” [39] Regardless of the fact that the right to die has no “defensible grounding,” these dangers are a real reality within the present modern polis.

 

To be continued…

 

The footnotes are continued from Part I and are mainly taken from Life, Liberty, and the Defense of Dignity by Leon Kass. An excellent work in bioethics that SPL certainly recommends.

 


[1] Ibid., 211.

[2] Ibid., 212.

[3] Ibid., 212.

[4] Ibid.

[5] Ibid.

[6] Ibid., 213.

[7] Ibid.

[8] Ibid.

[9] Ibid.

[10] Kass, 214.

[11] Ibid.

[12] Ibid., 215.

[13] Ibid.

[14] Kass, 215.

[15] Jean-Jacque Rousseau. The Basic Political Writings (Indianiapolis: Hackett, 1987), 94-95.

[16] Kass, 215.

[17] Ibid., 216.

[18] Ibid.

[19] Ibid.

[20] Ibid.

[21] Ibid.

[22] Ibid.

[23] Ibid.

[24] Ibid., 216-217.

[25] Ibid., 217.

[26] Ibid.

[27] Ibid.

[28] Ibid.

[29] Ibid., 218.

[30] Ibid., 226.

[31] Ibid.

[32] Ibid.

[33] Ibid.

[34] Ibid., 227.

[35] Ibid.

[36] Ibid.

[37] Ibid.

[38] Ibid.

[39] Ibid.