I was copying old posts to my (eventual) new home on Blogger
, and I ran across one of those articles with which I was never quite satisfied. In many ways it reminds me of my recent post "Copyright, Patent and the IP Problem
", an essay begun with something approaching certainty, which fell apart as I examined the topic in more detail, but which, despite the rather chaotic conclusion, contained enough interesting material I could not delete it. There haven't been as many in recent years, as I tend to be a bit harder on myself and delete articles which become too unfocused, but in the past I let a few more slip through, and this was one of them.
The post in question was "The Right to Die
". It started off with a relatively strong premise, the many pitfalls to allowing assisted suicide. However, in the process of addressing that single, well defined topic, I realized I had to also address the question of suicide in general, and there the whole essay fell apart. I could see the argument for allowing individuals to take their own lives, but also recognized the legal principles behind making it a crime, and also the potential legal problems attendant upon allowing legal suicide, including the slippery slope leading to legalizing assisted suicide, which had been my original point in writing. And so, though I started off well, and managed to keep focused throughout much of the post, in the end I had to confess that I was left uncertain where I stood on many of the questions I had raised.
However, time and distance has brought a bit more clarity, and while looking over the older essay I realized what had been wrong with my original approach. I had accepted implicitly several assumptions I would not have explicitly accepted. Of course, when I explicitly state the positions upon which my argument rests, I expect that more than a few readers will have some difficulty with my premise, but that is to be expected. As I argued in "Of Wheat and Doctors
", ""...Then Who Would Do it?"
", "Government Quackery
", "The Consumption Curve
", "The Life Coach Culture
" and elsewhere, we have accepted some bad ideas for so long that we no longer recognize the problems with them, and some of the arguments about suicide fall into the same category, interventionist, authoritarian concepts we no longer recognize as such.
But, perhaps, before I shoot myself in the foot by pointing out the potential objections to my argument it would be better to explain what that argument is, after which I can try to justify any positions others might find outlandish.
To start at the beginning, there are two related but separate issues covered by the rubric "Right to Die". The first is the right for an individual to take his or her own life without the necessity of fearing involuntary commitment or other loss of freedom. The second would be the right for one individual to assist another in taking his life, or, to be much more accurate, the right for one individual to commit homicide with fear of prosecution when the victim is a willing participant. The two are often treated as part of the same issue, but in reality, there are more differences than similarities between them.
The easiest issue is the second, assisted suicide. Though, even in this case, the term "assisted suicide" covers many issues which need to be distinguished from one another. For example, the term is sometimes used for acts as simple as providing enough medication for another to overdose, and at other times for acts involving much more direct involvement, such as assisting in suffocating or shooting the would be suicide. As with the "right to die", encompassing both individual suicide and assisted suicide, assisted suicide contains two separate types of acts, which we need to split apart.
The less involved acts, such as providing means of committing suicide, are much more akin to individual suicide, and so we shall deal with them later. First, we shall look at the acts most similar to the traditional definition of homicide, those cases where assisted suicide involves one person actually directly participating in the death of another.
This act, despite the many arguments in its favor, can never be made legal, for very simple reasons.No, it is not the possibility of using such laws to commit murder with impunity, though that is a concern as well. The reason is something much more innocent, yet much harder to prevent. An individual may want to die, may make a video stating as much, may provide infinite documentary evidence of his wishes, and yet we will never know if, at the last moment, he changed his mind, and yet was killed anyway. That is the most important difference between assisted suicide and individual suicide, a man who tries to kill himself can always back out1
, one who relies on another cannot. And, of course, there are all the additional fears, of abuse to conceal murder, of coercing relatives into suicide and so on2
, but even if we assume perfectly honest, honorable beings, there is simply no way for us to eliminate the possibility that assisted suicide might kill an innocent man. Those who oppose the death penalty always tell us it is enough to condemn the whole process if there is the chance of one innocent man being killed, so, if they feel that is true, should they not equally oppose assisted suicide, for the very same reasons?
Things are quite different when we deal with the other end of the assisted suicide spectrum. Those who provide the means for another to die are very different than those who actively help take a life. In fact, were it not for the laws regulating access to drugs and guns (both of which I find improper -- cf "Drug Legalization
", "There Ought To Be a Law
", "Medical Regulations
" and "Medical Regulation II
"), we would probably not worry about this at all. Oh, in a few cases where some family member had a problem with the individual who gave such assistance, we might have a case, but the only reason so many need help obtaining drugs to commit suicide is because of our prescription and criminal drug laws, without them, most who wished to commit suicide, all but the most incapacitated, would have no problem buying drugs for themselves.
But as this article is not about repealing prescription laws or decriminalizing drugs, we have to deal with the world as it is, and so we must ask about the role played by the one who provides the means used to commit suicide, and what the legal situation is for such people. Which, unfortunately, requires me to offer a most unsatisfactory answer, at least unsatisfactory for the moment. That answer being: It depends. No, it does not depend on circumstances, or on what aid was provided, what determines the criminal liability of such people is, very simply, how we view personal suicide. If we view it as a crime, or even as a mental health issue we call a crime to ease handling matters3
, then the one offering assistance is clearly a conspirator or accomplice and quite liable. On the other hand, if suicide is viewed as an acceptable, appropriate choice, so long as it is carried out independently, then the one offering assistance is free of blame4
. The only trouble is when suicide is treated entirely as a mental health issue, without a hint of a criminal element. In that case, there is little ground for blaming the one offering assistance, though some may come up with creative argument for civil or criminal liability5
So, as I said, my answer must be a small disappointment, though only for a short time, as very soon we will discuss that very topic, the proper handling of individual suicides, and from that we should be able to determine6
how best to handle those offering indirect assistance.
So, if directly assisting another in killing himself is impermissible, and providing the means without giving direct aid is of questionable propriety, what of simple suicide? What is the legal status of an individual acting to end his own life?
Clearly, in one way, this is a moot point, as suicide is the one crime which can only be prosecuted when it fails, trials can be held only for accessories or attempts, since a successful effort makes prosecution irrelevant7
. But there is still a very real need to decide whether those attempts and accessories should be prosecuted, or how the failed efforts, or those providing indirect aid to the successes and failures, should be handled. Which means we must ask, how does suicide figure into a system designed to protect rights?
The problem with policy questions about suicide is that we as a people have never really had a consistent view of suicide. Judeo-Christian theology has always deemed suicide a sin, but since time immemorial compassionate individuals have sought ways to excuse or explain away suicides, if only for the sake of the survivors. (A good deal of rabbinical thought has gone into the story of King Saul in an attempt to excuse suicide under dire circumstances, for example.) However, though we tend to pity the suicide, and forgive them for the sake of their survivors, the attitude has remained, among the religious, and even among the secular8
, that suicide is wrong, that life is an absolute good9
That is one side of the story. However, there is the other side, which is a view often held, oddly enough, by the same people holding the first, and that is that under some circumstances, suicide is acceptable, even understandable. Some limit it to terminal illness, others allow for situations of great physical suffering, whether terminal or not, others include other circumstances, such as being deprived of freedom, be it Masada or a hunger strike, and others even allow suicide for those undergoing extreme emotional pain. Obviously, the lines are drawn in a different place by every individual, but most of our fellows can be found to accept that suicide is allowable under some set of conditions.
And that is where the greatest problems arise. Perhaps a small analogy would help to explain. Some time ago, when arguing that mental illness was more of a social construct than anything akin to physical ailments ("The Politics of Psychiatry
", "Mental Illness
") I described a situation. John loses his wife Mary. He is sad that day. Everyone says that is normal. He is sad the next day, again, normal. He is sad a week later, and everyone agrees that is normal. A month later, some are beginning to ask if he should not start to move on. Six months later, a lot more are asking the same question. When he is still sad after a year, many among his friends begin to claim he is suffering from depression.
This is how we "define" mental illness in our society, a behavior that is outside the consensus view of social norms. However, that definition fits better with a behavior, a choice, rather than an ailment. What we are saying is not "You are sick" but "Your behavior is of a nature I find unacceptable." Thus, depression is not an illness, it is a description for someone who is sad for reasons with which we don't agree10
Similar problems plague suicide laws. When a man is suffering from terminal cancer and endures pain which medication cannot control, a failed suicide attempt is treated as understandable, and no one seeks to have him declared unfit. Even a man who tries to kill himself after the death of his wife of 50 years is usually accorded the same treatment. But a man who tries to kill himself because of his frustration with his life, his string of failed attempts to better himself, and his overwhelming loneliness, that man is treated as mentally ill. However, there is no objective difference between him and the others. The only difference is that society at large accepts the first two and their motives, while it fails to accept the third. Yet the third may be suffering emotional pain every bit as severe as the second, may have even less hope of ever feeling better. From his perspective it makes as much, or more, sense for him to die, and yet society rejects this perspective.
That is the problem with treating suicide as a mental health issue, or the greatest problem, as there are others. There is no clear definition of what is and is not an acceptable ground for suicide, and society assumes it knows how much suffering any given experience will inflict on any other individual. On this basis, we feel justified in determining when any possible action might be justified, and when it would constitute a sign of mental illness. However, as when the same logic is applied to the economy, the results of such an approach amounts to forcing one man's, or a small group's, assumptions upon everyone else, producing not more satisfaction, but less. ("The Inherent Disappointment of Authoritarianism
") And, in this particular case, depriving a number of people of their freedom based upon nothing more than our assumption that their actions "make no sense", but only because we are judging them based upon our own values.
There are some difficulties in accepting the implications of this argument. First, there is the fact that friends and family who do not agree with an individual's assessment of his condition will seek to restrain him. However, we must ask, can we base one's freedom on the opinions of his friends and family? If my family disagrees with my career choice, with my decision to marry, with any other normal choice I make, do we allow them to interfere? So, why do we accept that because they think my motives are unacceptable do we decide that I must be insane and my freedom curtailed?
This becomes harder when it comes to children, but then again everything does. Children are a very thorny legal problem, and one I must, for the moment, exclude from this debate. You see, children are possessed of rights, but the question remains precisely how far those rights go, and what ability parents have to restrain those rights. I intended to address this topic some time ago, when looking at child protective laws, especially looking at difficult questions of how physical punishment and abuse can be differentiated, or how the parental ability to decide questions about child rearing can be reconciled with modern ideas of "abuse", when abuse can be defined as emotional distress as well as physical. Since I have yet to write that essay, I must say, for the moment I will exclude children from this discussion, their freedom of action will need to wait for a more comprehensive examination.
Which leaves us with adults, and, though it will trouble many, I must say, respect for individual rights demand that we allow individuals the freedom not just of life, but to terminate the same, even when we disagree with their motives for doing so. It may pain us that they do so, it may cause harm to families, but respect for freedom entails respect for decisions with which we disagree, even those we see as harmful. So long as one's actions do not violate the rights of another, we must accept it, and so, the answer here, in the case of adults, is simple. Suicide, whether we agree with the motivation or not, is an individual choice. And thus, to answer a question raised earlier, we must also allow those who provide the means of committing suicide, must also be held blameless, at least in so far as they act in a lawful way.
I doubt this position will find wide acceptance, out belief that suicide is a sign of mental illness is too deeply ingrained, as is our belief that we have the right, even obligation, to deprive of freedom those whom we deem unfit. But the problem with such positions, widely accepted or not, is that such positions open the door to rampant abuse. Taken to the logical conclusions, there is no reason to allow any but the most commonplace of acts, at least if deviation from the norm, or acting upon beliefs not shared by others, is grounds for the loss of freedom. Of course, many will argue I am going too far, mental illness is well defined, and one can only lose his freedom if he is diagnosed by professionals. But I have written before where experts decided a perfectly sane man was delusional ("Finding What You are Looking For
"), not to mention the fact that the definition of what is and is not sane is relatively flexible, having changed dramatically over the past decades11
. So who is to say what is today acceptable could not tomorrow be deemed unacceptable? Do you truly want to base your freedom upon the changing fashions of psychiatry?12
1. I suppose in some cases a private suicide might no longer be able to back out, such as once he has consumed a lethal dose. However, there is a significant difference. If I am smothering myself with a bag, I know if I want to stop, and just remove it. If another is holding it in place, he may mistake my second thoughts for simple convulsions and thus ignore my second thoughts.
2. There are many who raise additional, much more abstract concerns, such as the way society is changed when it accepts death as another choice, or the impact on the medical profession when it becomes involved in taking lives rather than saving them. These are valid concerns, but are much harder to examine than the very simple, straightforward concerns I raise here. And since it is so very easy to show quite damning problems with but a short argument, it seems pointless to raise these quite nebulous arguments.
3. This is the case in most states, suicide is officially a crime, but one rarely, if ever, prosecuted, as the assumption is the actor is, by nature of the act, mentally incompetent and unable to stand trial. Thus, most who try suicide end up facing commitment hearings, the criminal part of the law remaining only because it allows the law to be used against those offering assistance, as well as to provide a tool to push difficult individuals into undergoing a competency/commitment hearing. The entire establishment seems to acknowledge the criminal part of the law is a sham, maintained for a few specific reasons, but otherwise ignored.
4. At least as far as the act itself is concerned. Clearly, providing the means to commit suicide might violate drug dispensing regulations, or professional licensing restrictions, and even the transfer of a gun might be contrary to some ordinance, so there remains the very real possibility of other charges being brought.
5. It is easy to see how some could try to bring civil cases against those offering assistance, arguing the wish to commit suicide proves the incompetence of the individual, and thus anyone providing assistance should have known in advance that providing such assistance was improper. Criminal liability is trickier to establish, though one could argue for some sort of recklessness, or negligence, and try to establish that providing means to an obviously incompetent individual is a form of manslaughter.
6. Unless we decide to treat personal suicide as a mental health issue, in which case we jump headlong into the confusion I described above.
7. I recall hearing a riddle to this effect from time to time, asking about the only crime you can't prosecute if it succeeds, or something similar. And many see to dismiss laws against suicide for this very reason. However, as I already explained, the law still has importance for our handling of those offering assistance. And, beyond that, making suicide a crime has other legal implications, which serve various purposes. For example, though not likely, it would be illegal to make suicide a term in a contract, as contracts cannot be binding if they involve breaking the law. Thus, one could not demand that another commit suicide should he fail to repay a loan. A far fetched possibility, but thanks to this law, one that remains impossible to enforce.
8. The secular arguments against suicide tend to be rather vague, as there is no real foundation for arguing one must cling to an unwanted life in a G-dless universe. They can say "maybe you will change your mind" or "life is precious", but the truth is, life is worth what each thinks it is, at least by a purely secular reckoning. And so, if another finds life to have no worth, there is no good argument against suicide. Yet the traditional Judeo-Christian opposition to suicide forces those who claim to be free of its influence to continue to push its views.
9. As I have said repeatedly ("Absolute
", "It Doesn't Matter to ME...
", "Slippery Slopes
", "The Inherent Disappointment of Authoritarianism
", "The Limits of "Scientific" Management
"), there is no such thing as an absolute value, at least in terms of human choice. Life is worth what each individual says it is worth to him. So if someone, for whatever reason, is convinced life imposes more costs than it brings benefits, from his perspective it makes sense to end his life. Of course, if one does not believe in any post-death existence, it seems this would require quite considerable suffering, but still, it is conceivable some would choose nonexistence over the life they have.
10. This does not mean such people might not need help. Many times they no longer want to be sad, or, even if they do not seek help, their unusual behavior makes their life difficult for them. However, just because they can be helped it does not follow this is a disease, or even an objectively defined behavior.
11. And then there is the Soviet example, of using schizophrenia and other diagnoses to imprison dissidents without trial.
12. Some may argue that it is safe enough, provided we exercise common sense. However, as with pragmatism, common sense is a poor guide for action, much less serves as a poor guardian of our freedoms. See my essays "The Lunacy of "Common Sense"
", ""Seems About Right", Another Lesson in Common Sense and Its Futility
", "A Look at Common Sense
", "Res Ipsa Loquitur
of Anecdote is Not Data
", "Rules of Grammar and Pragmatism
Problem of the Small Picture
", "Keyhole Thinking
" and "Impractical