Relationship Between Morality and the Law

This essay will look at the issue of the relationship between morality and the law. The emotive topic will then be illustrated by looking at whether voluntary euthanasia should be legalised in England. The arguments for and against euthanasia are examined against a background of the various moral theories which clutter the topic.

Voluntary euthanasia is when a person with a terminal (incurable) or serious progressive illness asks for their life to be ended by a doctor, or carer, which can include a family member or friend.

From the ethical perspective, euthanasia raises many important issues including the right to life, the right to liberty, the avoidance of unnecessary pain, the appropriate allocation of medical resources, and the rights and duties of doctors. Other relevant considerations include the improving standard of palliative care and the “slippery slope” argument. The central arguments for and against euthanasia are evaluated against the background of the leading contemporary moral theories. This book seeks to cut through the rhetoric that has become a feature of the debate and asks whether there is a sound reason for denying the wishes of individuals who express their wish to die

Law is essentially a set of rules and principles created and enforced by the state whereas morals are a set of beliefs, values and principles and behaviour standards which are enforced and created by society. Legal and moral rules can be isolated with the former being created by the legislative institution of parliament; whereas the latter have evolved with and through society and are the standards which society in general accepts and promotes. Some laws mirror the majority of society’s moral view, for example, that murder is wrong but the introduction of same sex marriages is seen by some people as morally wrong and society is divided.

The study of euthanasia elicits the vast sway of different opinions which exist about the moral right and wrong of the taking of a human life in order to ease pain and suffering. Moral arguments abound for the legalisation of euthanasia and also for it remaining illegal in English law. This area of law is one in which the extent to which the law should intervene in peoples’ lives is relevant. Euthanasia is also fertile ground for discussing the extent to which the law should and does enforce moral values. It is such an emotive topic because it concerns the pain and suffering of family members and also brings into account religious views and the doctor’s oath.

The case of R (Pretty) v DPP fn1 has aroused great interest in the country. Diane Pretty suffers from an incurable terminal illness and has expressed a desire to die at a time of her choosing. Libertarian advocates of the autonomous right of people to choose their own destiny and end their lives how and when they want to, identify with Mrs Pretty. They argue that her wish is her own choice and violates no one else and is in everyone’s best interest. Mrs Pretty sees death as the preferred option and since it will eventually happen it is better to legalise it and regulate it. In the eyes of the victim and family death may not be such a bad thing.

The opposing view is taken by the religious people who see Mrs Pretty’s actions as against God’s will and that only God can decide the time to die. The religious element says that God has a plan for everyone and suffering may be part of that plan as illustrated by John Paul fn2. They argue that euthanasia undermines the sanctity of life. The people who oppose euthanasia point to it being the slippery slope, arguing that it may encompass people who aren’t terminally ill. They are worried that unscrupulous relatives or friends will take advantage if euthanasia is legalised and pressure someone into thinking that euthanasia is in that person’s best interests when in fact the relatives/friends are possible keen to get their hands on their inheritance. The very fact of legalising euthanasia would mean that sick people are degraded and seen as worth less than other lives. Euthanasia may not be in the sick patient’s best interest and it may have long lasting effects on family members who are genuine in their concern for the patient. So there are moral issues around these third party rights who may not want to their loved ones to pass away in this manner and whose voice should be heard.

There are three main theories which deal with law and morality. Firstly the liberal view known as the Harm to others; principle expounded by John Stuart Mill in 1859.fn3 Mill thinks that the only purpose for which power can be rightfully exercised over any member of a civilised society against his will is to prevent harm to others. Mill believed that the law should not be used to enforce moral principles on society but to protect harm to its citizens. Preventing someone from harming himself is excluded by this harm to others principle. Criminal offences such as murder, murder and non fatal offences against the person are examples of the type of harm which Mills thinks the law should enforce. The Wolfenden Report said that the purpose of the law is to preserve decency and protect people and not to interfere in private lives.fn 4

The second theory is known as the Moralistic view, harm to society principle which was put forth by Lord Devlin, 1950-60. fn5 His view is that a recognised morality is essential to the very essence and being of society. He thought that individual liberty and freedom should be curtailed in order to protect the fabric of society. Devlin said that society may use the law to preserve morality in the same way that it uses the law to safeguard anything that is essential to its existence. He envisages morality in an objective fashion seeing it as a common morality shared by all in society. An example of a law illustrating this theory is the defence of consent in non-fatal offences, R v Brown & Others. fn 6

The final theory is the most modern and is the Paternalistic view, harm to self and others view as put forward by Professor Hart in the 1960s.fn 7 His theory is that the law should only intervene in the private lives of citizens to prevent harm to others and harm to oneself. He did acknowledge that there was a difficulty in defining harm but did acknowledge that it did not include moral harm to oneself. An existing law illustrating this theory is the law which prevent methods of prostitution. The Paternalistic view focuses very much on the individual.

Having examined these theories, we can now reflect on how they interact with euthanasia.

The liberal harm to others theory suggests that euthanasia should not be illegal; moral harm to society suggests that euthanasia should remain illegal and the paternal view harm to self view suggests that euthanasia should be illegal. It is interesting to note that only one of the theories and the oldest one at that supports the legalisation of euthanasia.

In law euthanasia has no special position and people who carry out euthanasia are treated as committing murder or manslaughter. However the Suicide Act fn 7 makes a specific offence of criminal liability for complicity in another’s suicide whereas suicide itself is legal.

The arguments which resurfaced in the Dianne Pretty case all revolve around morality and the law. Mrs Pretty wanted her husband to end her life without being prosecuted for aiding and abetting suicide. Her case led to a high profile legal and public debate on the issue as her husband first applied to the domestic courts ending at the House of Lords, and then to the European Court of Human Rights for judicial review of the refusal to give him immunity from prosecution. If the case had been successful it would have effectively struck down the legal ban on assisted suicide and legalised euthanasia. Mrs Pretty was unsuccessful because the domestic courts in recognition of the complex moral considerations at stake, deferred to the democratic will of parliament as enshrined in the legal text. The European Court of Human Rights applied the EU equivalent, the Margin of Appreciation, and rescinded from passing judgment on the issue in 2002.

One of Mrs Pretty’s contentions was that her human rights were being breached and in particular she relied on the right to life fn article 2 fn8 and that she should be protected from inhuman or degrading treatment fn art 3 fn 9. In addition she claimed that the right to respect for private life fn art 8 fn10 had been breached. There is a definite moral overlap with each aspect of the human rights legislation which Mrs Pretty is seeking to rely on. The House of Lords said that the right to life article could not be construed as conferring a “right to die” and consequently the state could not be required to sanction actions intended to terminate life in order to protect Mrs Pretty from the inhuman or degrading treatment to which she maintained that the law on assisted suicide subjected her. Additionally the right to respect for private life had to be exercised “in accordance with the law” of the state concerned. The Court acknowledged that states were entitled to regulate activities which were detrimental to the life and safety of others by introducing legislation. It is important to note that towards the beginning of their deliberations the House of Lords noted that:

“ In discharging the judicial functions of the House, the appellate committee has the duty of resolving issues of law properly brought before it, as the issues in this case have been. The committee is not a legislative body. Nor is it entitled or fitted to act as a moral or ethical arbiter”.fn 11 para 2

The House of Lords has acknowledged that the case before it concerns issues which are of a moral nature, but that the judicial functions of the court are to enforce the law as it stands and not to impose any moral view points or to allow its own moral value to affect its decision. This shows how the law and morality are intertwined in this instance but that the Court’s function is not to interpret the law as they might wish it to be (assuming any of their Lordships agreed with euthanasia) to reflect their moral stances but that the law must be interpreted as laid down by UK law and in conjunction with European law.

In their editorial Doyal and Doyal ask “should she [Diane Pretty, who has motor neurone disease] not be able to invite [her doctors] actively to end her life. Fn 12 The right to total personal autonomy is a cornerstone of the pro-euthanasia camp, but from the point of view of opponents, there is a fundamental problem with this approach. This approach sees us as being isolated individuals, like bricks lying across a builder’s yard, but with no interlocking relationship, so whatever happens to one brick has no impact on any others. However

We aren’t like this. We are more like bricks in a house, where we have close relationships and responsibilities to those around us, friends and family, and we are connected to society as a whole. Our autonomy is balanced by our responsibilities. I don’t exert my right to drive to a supermarket at 150 mph because I accept my responsibility not to endanger others.

In his rapid response Fergusson argues that euthanasia is unnecessary,1-2 but suppose that one person still wanted it. For that to happen the law would have to be changed from one that protected everyone’s life absolutely to one that left vulnerable people unprotected. In this case the one person ought to waive their right to autonomy because of their responsibility to others.

There is another problem with autonomy: for a choice to be valid it has to be free. Sadly, our society and, sometimes, families don’t value old people; they are often made to feel that they are in the way and not useful. Tragically, this is often how the older generation feel about themselves. They know about the NHS’s limited resources and may feel guilty about using them up. If euthanasia was legal they would inevitably feel pressured to do the decent thing and die, to stop using up others’ resources, be it a hospital bed or the children’s inheritance.

Euthanasia is not the answer. Rather, we need to provide meticulous palliative care and by so doing show that people are valued, by our profession and our society.

The Pretty case kept the euthanasia debate in the public domain and on 13 May 2006 after previous attempts to introduce a private member’s bill, the Assisted Dying for the Terminally Ill Bill, the House of Lords finally defeated it. There are some interesting comments which emerge from the debate, for instance from Lord Carlisle of Berriew who said that

“Everybody in your Lordships’ House knows that those whoa re moving this Bill have the clear intention of it leading to voluntary euthanasia. That has always been the aim and that remains the aim now. The Bill introduces for the first time into this country the concept that of doctors abandoning therapy for deliberately causing a person’s death. The fact that a person in law gives the instrument of death to another person who injects still includes them as the person causing the death. I an many others find that-whether religious or not religious-morally objectionable and I include in that moral objection the vast majority of physicians and general practitioners, the Disability Rights Commission and, as I understand it, the Royal College of Nursing” fn 13- Times on Line 13 May 2006 “The religious and the righteous unite in a moral crusade” p 3 www. Timesonline.co.uk/tol/news/politics/article717299.ece?

Lord St John of Fawsley said that “the life of a great society depends on a common possession of moral principles. If those principles disappear the society disappears. That is why people are so concerned about this at a time of very great moral change, that one of the fundamental pillars of our society is being shaken.” Fn 14 ibid

Lord St John Fawsley seems to be suggesting that society depends on commonly shared morality but that is not the case with the feelings of people towards euthanasia. Rather there is a great divergence of moral views on the topic and people in favour or against do not all have or share the same moral stance for their viewpoint. His Lordship seems to be suggesting that if the law is changed to permit assisted suicide or voluntary euthanasia, then the fabric of society will crumble. He clearly sees that one of the functions of the law is to uphold the moral principles of society as they exist at the moment but he seems to suggest that anyone who is in favour of the proposed Bill does not share his viewpoint of what is moral.

Rowan Williams Archbishop of Canterbury made the point that opposition to the principle of the Bill is not reserved by people of religious conviction adding that it would be a lazy counter0argument to suggest that such opposition can be ignored because it emanates only from those whose view of the world is not universally shared. He pointed out that the effect of the proposed legislation was to make certain kinds of life not worth living in the eyes of the law. He maintained that the security of the vulnerable would be threatened in another way by drastically altering the relationship between patient and physician. Fn 15 ibid p2

Another very important thread to the debate is the position of doctors who would be permitted to assist people in assisted suicide or voluntary euthanasia if the proposed Bill was passed. Doctors take a Hippocratic oath which states that they have a duty to save life and not to accelerate its end. Apart from the proposed Bill resulting in doctor’s breaking such an oath, some doctors are also personally and morally opposed to the legalisation of voluntary euthanasia. Thus their moral dilemma should be taken into account but if the Bill was passed then the law would in subsume their moral viewpoints unless some opt out for doctors and other medical practitioners could be written into the Bill. If indeed such an opt out was included in the Bill then that would be an instance where the law respected and reflected the autonomous right of a medical practitioner to retain their moral view point which would be superior to the law.

Some people may argue that by rejecting the proposed Bill, as a society, we felt it was morally permissible to permit someone to suffer a very serious and debilitating illness in the interests of the preservation of life. However the notion that the sanctity of life should be preserved is still an ideal held by many who insist on prolonging life at all costs. The medical profession despite its obligation to heal often places the sanctity of life above the notion that healing might in fact involve allowing the end of life as Mrs Pretty wanted. Is it so wrong to assist another individual to die even where that individual is being subjected to an intolerable amount of pain and suffering? This is the argument put forward by the proponents of the proposed Bill who see the law as lagging behind the current morality within society which they maintain contains a drive towards legalising voluntary euthanasia. The result is that people who think that the current law is failing their personal autonomy to live their lives in the way they think fit within the law and then to end their lives as they wish are being driven to seek assistance in countries where euthanasia is legal such as Switzerland where the renowned Dignitas clinic assists such people.