Death Rites: Law and Ethics at the End of Life

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Where Americans Find Meaning in Life

This is, however, despite how hilarious it is, really the most traditional kind of use of biology — an attempt to use it, particularly in an evolutionary context, to justify legal rules that seem to reify what apparently some people think nature has dictated by our biology.


But there is actually another set of ways in which biology is used that I think goes less noticed, and that is the way in which there is a perception that biology is truthful, immutable and unambiguous, and that its definitions and categories must be adopted into law and used as the basis for legal regimes.

And yet, when we actually step back and think about this, we recognize that many of these biological truths are neither true nor unambiguous nor immutable, and that in fact we frequently employ legal fictions because we recognize that there are social goals that are going to be answered only by the construction of a social regime. We also can allow ourselves to make legal inferences when biology is uncertain; people who are absent for a period of years without explanation can be declared dead.

Sometimes we use legal inferences that are absolutely improbable. Those of you in the audience that are lawyers — and I do accept the fact that we are irrelevant and there are too many of us, Carlos. Who died first determines how the will is probated. Here I refer to the phenomenon of so-called intersex. And finally, sometimes because of this — despite all of these legal fictions — because of this kind of collective amnesia about the imperfections of biology and the insistence that biology is truthful, unambiguous, clear, and a kind of anchor, a clear beacon in the storm of confusion — sometimes we actually invent biological truths to bolster social constructions that need bolstering and to which we are politically wedded.

And I talk here about the notions of race that have for years been recognized at a genetic level as being flawed and representing more than anything else simple geographic origins, and to a lesser extent, degrees of reproductive isolation in generations past, but in no way represent clear delineations within the human species that would correlate to things like subspecies or breeds.

Yet the use of biology to create racial categories was crucial to sustaining the kind of political and social constructions around race that were used in settings as varied as the United States and South Africa.

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Now, to me, the connecting threads between the Schiavo case and Roe v. Wade and even Dolly the Sheep the first animal embryo demonstrably created with nuclear transfer from an adult somatic cell , the connecting threads consist of the phenomenon of sheer biological life. The second thread that connects these cases to me is the degree to which various people and religions accord specific kinds of moral value to non-sentient biological human life.

And then the degree to which there is a call for the law to A accept the primacy of biology in constructing a definition, and then, because of that, B to then attach a particular dominant moral value that correlates with each biological definition that is in play concerning the nature of the life. One of the interesting things is the degree to which, in some sense, there is a reversal of positions.

You know, in the critical legal studies world you always have to talk about yourself in order to let people understand your point of view. Europe just went through paroxysms over whether or not to make references to Christianity in the new European Union Constitution. Now, in the past, our public culture was indeed very Christian; not only did we have openly Christian prayers in schools or invocations at public events and religious displays; we also had open discrimination against non-Christians or even against the wrong kinds of Christians, such as Catholics, for many years in our history.

In recent years, I think we have begun to move toward an approach in which dissenters are not merely tolerated, which was the great advance in the 18th and 19th century under the U. Constitution, but now we are asking to have dissenters made to feel welcome and to feel equal in the public square, which is exactly why the withdrawal of Christian symbology — some forms of Christian symbology — has been felt to be important in order to make that public square more open and more equal to the dissenters. And this I think accounts for why it is that people who do not subscribe the dominant Christian sects in the United States can feel like the victims.


And at the same time, the people who are in those dominant Christian sects themselves equally feel like the victims and feel like they are under attack and under siege because what is happening is that they are, in fact, in a state of retreat from the public square, a public square that they have long felt they are entitled to, with only tolerance of dissenters as opposed to equality of dissenters. And so I think emotionally we have got a debate in which everybody is feeling victimized, and it is not at all clear that any group feels like it is in charge of the debate or in control.

And when people are victims, they begin to act like dogs in a corner and I think you all know what that looks like. So the question becomes: Is the public square, which in my mind includes the way in which we adopt and formulate public policy, indeed going to be a place in which we are all equal?

Death Rites: Law And Ethics At The End Of Life

What is deeper is whether or not we are going to accept that equality means a degree of restraint on the part of the government when it comes to morals regulation, because people from different faiths and different perspectives have such fundamentally different notions of what personal morality requires.

And if that is the case, it is going to lead us next quite clearly to the role of government. Now, in the case of death and dying, the question is whether the government is supposed to set uniform rules or facilitate individual choice, and we have seen this debate before. In one of the more vivid debates within the Supreme Court, we have the old abortion case Pennsylvania v.

It is indeed a debate about the role of government in dictating, determining and defining personal morality versus stepping back and simply facilitating personal choice while protecting third parties from concrete harm. Now, there is for many people a belief that death and dying are biological categories that are fixed, immutable, clear, unambiguous, and that these categories must correspond one by one with a particular legal response.

Assisted dying: 'I just wish the law let me have him for a little longer' - BBC News

Now, not only is Carlos right but these things are rarely as clear cut as we would like them to be, and we also know that they are not immutable even if we accept the blurry edges. For example, we have watched the United States move from a definition of death that focused on heart-lung function to one that focused on the function of the lower part of the brain or the brain stem, and that is the so-called brain-death definition. And we have also seen how the definitions can vary from country to country, where in Japan death might not be determined by neurological criteria but only by heart and lung criteria.

And indeed this is a debate that continues to go on. And furthermore, we worry about some of them because we recognize the slide that is within them. When we moved to a neurological definition of death, we claimed that lower brain function was crucial because it controlled integrated functioning of the body. Essentially, once that was gone, the body was terminal because even with maximal mechanical support, the vast majority of these bodies would eventually wind up disintegrating because the mechanical support was incapable of integrating function as well as a functioning brainstem.

But more and more people began to realize that this was kind of a silly thing to be worried about. Really what was going on was the permanent cessation of consciousness, the permanent cessation of self-awareness, and the permanent cessation of anything that gave this previously occupied body a sense of itself in the world and a purpose in life, which got people nervous about the potential move to redefine things like an anencephaly or indeed persistent vegetative state as forms of death.

Those who oppose what has been going on here often say that their concern is procedural, that they are worried about the criteria and the level of proof needed and not so much about the changes in these definitions. And to the extent that that is true, I think it is a debate about the tolerability of error. For many years, as was being talked about, we did not tolerate any error that might lead to the discontinuation of treatment that might lead to death, and we therefore forced treatment upon people. But then we began to move toward a change in which we began to be more attentive to the cost to people and their families of unwarranted or unwanted treatments, and began to tolerate the possibility of an error that caused a death in order to avoid a great deal of suffering.

Bishop Morlino in Wisconsin recently said that no practicing Catholic ought to have a living will that calls for discontinuation of nutrition or hydration when they are not terminally ill because it is an act of suicide, and therefore it is not permitted according to doctrine. The challenge is to discuss moral libertarianism. Without the anchor of biological truths and revealed moral rules, moral libertarianism to some people can feel more libertine than libertarian, and it forms the abyss of relativism. But biology in my view is a false anchor and moral rules are not revealed in the same way to all.

L. Buxton, Lee R, Morgan D, Death rites: law and ethics at the end of life - PhilPapers

For me it is not just a question of whose life is it anyway, but also whose country is it anyway? Let me add my thanks to the sponsors of this event. I promise to break the consensus. There is a spectrum of positions on end-of-life issues and on life issues generally; however, a crucial line of division is between those who affirm and those who deny that the life of each human being possesses inherent and equal worth and dignity, irrespective not only of race and ethnicity, and age, sex, and so forth, but also irrespective of stage of development, mental or physical disability, and condition of dependency.

So some people argue that there are human beings who are not yet persons, namely those in the embryonic, fetal, and at least early infant stages of development, and other human beings who will never become or are no longer persons — the severely retarded, the seriously demented, those in permanent comas or persistent vegetative states. For people who hold this view, the question is not when does the life of a human being begin, but when does a human being qualify as a person and not a mere biological human life — and as a person, therefore a creature with a serious right to life.

Those human beings whom they regard as non-persons — human individuals possessing merely biological life — do not possess such a right on this understanding though it may, depending on a variety of possible factors, be wrong to kill them for some reason other than respect for the inherent dignity of persons. In contemporary discourse, the view I am describing is often allied though it need not be to a sweeping belief in the value of autonomy as a core right of persons.

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So, the thought goes, if a woman wishes to abort a fetus or parents wish by act or omission to terminate the life of a severely disabled newborn, or a person wishes to end his own life by act or omission with the assistance of other willing persons, respect for autonomy demands that others, including public officials acting under color of law, refrain from interfering with these choices and perhaps even take positive steps to facilitate them. Now, those who oppose abortion, infanticide, assisted suicide and euthanasia, as I do, oppose them because we reject the idea that there are or can be pre-personal or post-personal human beings, or human non-persons of any description; and we do not accept the sweeping view of the value of autonomy.

Most of us also believe that the law should honor the principle of the sanctity of human life and not privilege the belief in autonomy over it. We view human life, even in developing or severely mentally disabled conditions, as inherently and unconditionally valuable; and though we regard individual autonomy as an important value, we understand it to be an instrumental and conditional one that is morally bounded by a range of ethical considerations. These include, but are not limited to, the autonomy of other people. Many of our opponents take precisely the opposite view: autonomy has intrinsic worth and so-called biological life is of instrumental or conditional value.

I have elsewhere and at length stated my reasons for believing that the life of every human being has inherent and equal worth and for rejecting the proposition that some living human beings are not persons and therefore lack a serious right to life. I have also stated at book length my reasons for rejecting the doctrine of the priority of autonomy and the political principles following from it.

What I will do, however, is try to give some indication of how I think someone on my side of the debate on these matters ought to think about issues of the sort that came to the fore in the Schiavo case. At the same time, we should bring encouragement to anyone who is tempted to regard his life, currently or prospectively, as valueless or merely burdensome to himself and others and discourage such persons from committing suicide or regarding their lives as worthless.

We should certainly not cooperate in suicidal choices or support the practice of assisted suicide or euthanasia.

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  6. Now, does this imply vitalism, that is, the view that human life is not only inherently valuable but that it is the supreme value that trumps all others? Does it mean that we must struggle to keep dying patients alive at all costs? Well, no. Of course, I should add that the norm against direct killing of innocent human beings is not the only norm that can be relevant to end-of-life decisions; there are norms such as obligations of fairness and equity that apply even in cases of accepting death as a side effect.

    To show that an act that causes death or a shortens life is not an act of direct killing — is not necessarily to show that it is a morally legitimate act. Now, there are some classic examples of the distinction that I think that are central.

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