ABSTRACT
In this chapter, I consider the way in which categories of legal responsibility in the criminal law’s general part are used to finesse broader moral conflicts around questions of euthanasia. Euthanasia and its close cousin assisted dying represent extremely problematic areas for the criminal law, as the recent formulation of prosecutorial guidelines for assisted suicide testify (Crown Prosecution Service 2014). The effect of the guidelines is to make no formal change in the law, which continues to prohibit assisted suicide. The guidelines make it clear as a matter of official practice, however, that where the law on its face has been broken, there will be no prosecution if the defendant was motivated by good moral reasons.1 This is a form of criminal regulation that operates by the contradictory
juxtaposition of legal rule and administrative discretion. The effect is to balance conflicting social, political and moral claims in a society where there is no consensus as to the rights and wrongs of helping someone to die. A pragmatic compromise reflects a moral impasse in a way that appears to give something to everyone. Thus, the ‘pro-life’ lobby can say the law has not changed, no symbolic succour has been given to euthanasia and no line has been crossed. Those in favour of assisted suicide can claim to have chipped away at the monolithic view that assisting death is impermissible, and exposed the law’s ‘hypocrisy’, whilst still accepting it has not changed formally. On the surface, this is the kind of balancing act that occurs when a legal rule is
Underneath, however, the issue of assisted suicide, together with that of euthanasia, tells us something more general about the nature of criminal law regulation and the formalistic conception of responsibility that lies at its core. In addition to the moral complexity surrounding euthanasia, there is a complexity in the criminal law form itself that enables the moral problems to be finessed. A deeper view of the relationship between law and morals would be to say
that the moral complexity in euthanasia and assisted suicide is mediated by the peculiar complex of form and substance that constitute legal categories of responsibility. This enables a deeply conflicted moral issue to be managed, temporarily at least, through the legal structure, the ‘architectonic’, of the criminal law’s general part. It is such a complex vision of the criminal law’s general principles of responsibility that I wish to develop here, in order to apply it generally to questions surrounding euthanasia. In thinking about the criminal law’s architectonic, I will be bringing to bear my
previous analysis of the role of formalisation on the categories of criminal law, a development that begins to occur in the early 19th century, and which sets up a tension in the law between formal and substantive approaches to criminal responsibility (Norrie 2000; 2005a: ch 4; 2014). In thinking about euthanasia broadly, I will be examining two different situations: those of active killing, in the sense of actually bringing about or contributing to a person’s death;3 and of supporting or assisting a person to commit suicide. In both cases, I will be looking at how the law finesses the moral problem by permitting some forms of active killing or assisted suicide, despite both being officially prohibited. The chapter has four sections. In the next, I elaborate an argument on the
nature of legal form in the criminal law, considering three different approaches – the moral, the political and the critical – to the idea of legal responsibility. I argue for a critical understanding of a dynamic of form and substance at its heart. In the following section, I consider the nature of the moral impasse on euthanasia, arguing that there are moral reasons for accepting some forms of euthanasia or assisted suicide, and moral reasons for refusing them. Then, in two final sections, I consider how the law operates with regard to active euthanasia and assisted suicide, in light of the law’s formal structure and the relevant moral issues.
