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Article Excerpt
This Article critiques conventional liberal arguments for the right to die on liberal grounds. It contends that these arguments do not go far enough to recognize and address private, and in particular structural, forms of domination. It presents an alternative that does, which is thus more respectful of true freedom in the context of death and dying, and also more consistent with liberalism. After discussing obstacles to the achievement of a right to die that encompasses freedom from both public and private domination, the Article closes with a significant reform project within bioethics that might help bring it about.
TABLE OF CONTENTS INTRODUCTION I. THE BASIC CRITIQUE II. CONSTITUTIONAL DIFFICULTIES A. The Negative Constitution B. The Negative Constitution and the Right to Die C. Exceptions to the Negative Constitution III. CONSTITUTIONAL PERMISSIONS IV. SOME HOPE? HOPE?
What else can one do in the time before sunset?
--Socrates, in Phaedo
INTRODUCTION
All respectable accounts of liberalism recognize domination, both public and private, as the enemy of personal autonomy. Where domination obtains, autonomy does not.
Tracing and prioritizing one side of this line, liberal partisans in the "right to die" (1) debates have widely opposed laws barfing individuals from making choices for themselves about the meaning and value of life, including whether it should be lived at all or abandoned. These laws are forms of public domination, untenable barriers to self-mastery, it is said. Happily, given the diagnosis, the solution is ready at hand. To give autonomy its due, the State must cease its domination. If it does, autonomy will predictably bloom.
What of private domination? It has not loomed as a major concern for liberal right-to-die supporters. To be sure, when pressed, they ordinarily grant that, when private domination ushers someone out of life, especially against a choice to live, not only life itself, but autonomy too is extinguished. By and large, liberals trust that that is precisely the sort of private domination the State should recognize and punish as a personal harm, as, for instance, it does through criminal homicide laws. Indeed, permissive right-to-die regulations invariably contain provisions arced in these very directions. By design, they aim to keep private domination, parked under the signs of "undue influence" or "coercion," hence "harm," "injury," or "abuse"--perpetrated, paradigmatically, by one private actor against another--"outside" the regulatory regime. If the filter works, the machinery smoothly delivers only freely chosen death. On the conceptually related front of private domination keeping an individual alive who would otherwise opt for death, scarcely anything very useful has anywhere been said. This is true despite the fact that colorable examples alight the law reports, as they do the unpublished remainder of social life.
These two perspectives on domination, taken together, broadly frame the conventional liberal stance on "choice in dying." The State, principally through forbearance, but sometimes through action, chiefly targeting private individuals who break the peace, can keep the twin forces of domination at bay. It thus ensures choices about life and death, whatever they are and however realized, are made under conditions fundamentally respecting autonomy. Hence the now-standard liberal case for the right to die. (2)
Behind this case, detectably animating it, is a certain, well-known (but imaginary) vision of social life. Parsimoniously described, it holds we are all free and equal persons capable of autonomous choice, particularly about life's momentous events, lest kept from it by domination. Although public and private dominations are theoretically twin threats to autonomy, public domination's dangers far outpace those of its corresponding private number. Given the State's tendency to (try to) insinuate itself into every last nook and cranny of our lives, public domination is an ever-present danger requiring an eternal vigilance. By contrast, private domination, operating interpersonally-one private actor dominating another--is controllable and, thanks in part to the law, but also to morality, culture, nature, and reason, already controlled. It is a rare, incidental threat, and even less commonly, manifest as a fact of social life.
This portrait sets otherwise curious features of the liberal brief for the right to end one's own life into relief. Most significantly, it illuminates how freedom from public domination, never more than a necessary condition for autonomy, is so often taken by liberal right-to-die advocates as a sufficient condition for it. If accurate, eliminating public domination would clear what, as a rule, is an unobstructed path to autonomous choice. Likewise, this portrait casts light on why liberal proponents of the right to die have dedicated so many analytic energies to opposing State bans on "choice in dying" and why, comparatively, so very few to shagging its private barriers. This division of intellectual labor mirrors the perils for autonomy that the two forms of domination are believed to represent.
I. THE BASIC CRITIQUE
Almost everyone professes to believe that private domination should be kept at the margins of social life. Certainly, dedicated liberals do. Does liberalism require it? Look past the strictly interpersonal model of private domination--one private actor, acting entirely on his own, dominating another--that is familiar to liberals in the right-to-die debates. Notice instead the full range of private domination's operative modes, including its perhaps most common forms: ideologically driven, hierarchically arranged networks of private power that, in shadowy, State-like ways, govern social life, including its very boundaries. Each of these networks operates through organized, largely settled but still open-ended--hegemonic, but not totalized--rules and regulations, rights and privileges, duties and demands that, individually and together, amount to a truly private sovereign code. Their major contemporary forms, familiar to us all, include the often-intersecting social hierarchies of race, class (including professional status), sex (including sexuality), disability, health, age, religion, national origin, and citizenship status. Along with the ideologies that drive them, which they themselves reinforce, these social hierarchies are constitutive of the conditions of social life, including its final chapters--first dying, then death. For those whose lives, hence lives' ends, they shape, control, and define, there is nothing peripheral or incidental about them. For many, too many, private domination-structural domination--rules.
This disquieting survey of the social scene cracks open an important counter-perspective on the conventional liberal case for the right to die. If correct, its posture on the architecture of domination is deeply elitist. The view that freedom from public domination unlocks both a self-legislated life and a self-chosen death, with private domination figuring as only a rare threat that is amply addressed by ordinary background legal rules, holds true for virtually no one outside a small group of social elites, and perhaps not even them. Focused this way, the liberal right-to-die brief entirely misses what is true for everyone else. Private domination's structural forms remain firmly entrenched--governing the social world, dominating the choices made in it, including the most momentous ones, themselves including choices about life and death--even after public domination is rolled back.
Having missed that, the liberal brief for the right to die also misses what is next. Private structural domination can be expected to change dynamically, even to expand its control, as the State relinquishes its mastery over the social field. Appreciating that power adores a vacuum, Hobbes was right: The "perpetual and restless desire of power after power ... ceaseth only in death." (3) Not a moment before.
Would that that were all. The descriptive problems with the liberal case for the right to die reflect a more thoroughly normative concern. The liberal brief for the right to die--far from simply failing to imagine domination's architecture from a nonelite social perspective, far from simply failing to notice private domination's structural forms, far from thus leaving them, including their capacity to change and grow, unacknowledged, hence unaddressed--in a prescriptive turn, affirmatively legitimates and protects them.
Here is how. Within the liberal case for the right to die, private domination, when recognized at all, is seen as a rare, strictly interpersonal threat to individual autonomy, manifest as social reality more rarely still. Partly because of this, and partly to guard against public domination being or (again) becoming a constitutive feature of social life, the liberal case for the right to die installs strictly private interpersonal domination as the limit of State intervention into the perceived world of autonomous choice. Except when personal autonomy is blotted out by strictly private interpersonal domination, the State has no warrant to act. Lacking one, it is supposed to hang back, leaving the world of autonomous choice, unimpeded, to turn.
What has happened to private domination's structural forms within this study? The descriptive assessment of the liberal case for the right to die has already provided the answer. Private domination's structural forms do not come up within its terms. Only strictly interpersonal domination, on domination's private side, does.
Where have private structural domination's various forms gone? Searching for them within the liberal brief for the right to die, one senses that they have been absorbed by its underlying, animating imaginary of the social world. Significantly, though, they appear to have been recast there as features of the social landscape that, whatever else they do, do not negate autonomy. As well, being nothing more than features of the social world--not forms of private domination--the State has no obligation to address them in ways that will vindicate autonomous choice.
To the contrary, because private structural domination is presumably the result of autonomous choices private individuals have made--themselves entitled to respect as such--the State not only has no obligation to address them, but rather, if anything, a duty not to. Else, it is back--loop-de-loop-to public domination. Bringing these various strands together, the usual decision by liberal supporters of the right to die not to recognize private structural domination for what it is, and to erect barriers that protect its authority to operate unimpeded and even to grow, is, in a normative register, a decision to legitimate and protect it, and thus to authorize its rule as a kind of sovereign law.
Hence my critique: The right to die, realized or respected chiefly, if not exclusively, by bringing public domination to an end, will not be, as its liberal interlocutors regularly imagine, a smooth, direct passing of sovereignty from the State into individuals' already autonomous hands. Yes, it may sometimes be that. If accepted, the liberal brief for the right to die would yank the State itself back, hence check public domination, achieving liberation of a sort for some social elites.
For those who do not inhabit the privileged peaks of the social world, it is something else again. It is a passing of sovereignty from the State over into the networks of private structural domination, which, for their part, liberated-perhaps with more power than before--do and will do pervasively what private domination, like all domination, does: negate autonomy. The conventional liberal right to die springs individual choice from public domination in the name of autonomy while casting it headlong into the vortex of private structural domination. Itself legitimated and safeguarded from the State's authority in the process, the liberal right to die is thus liberated to lord over individual choice Recognized in the world in which we actually live, the liberal right to die vindicates and vitiates autonomous choice.
A quick reference to the case of Elizabeth Bouvia, the high-water mark of the right to engage in "negative" or "passive" euthanasia (or more bureaucratically: the right to terminate unwanted treatment invoked in a context where doing so would ordinarily result in death) should help concretize the point. (4) Bouvia sought, and ultimately got, judicial recognition of a constitutional right to end her life. By any measure, she was in serious straits. From birth "afflicted with ... severe cerebral palsy," she was also quadriplegic. (5) By the time of the case, her "physical handicaps of palsy and quadriplegia [had] progressed to the point...
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