Assisted Suicide and Classical Liberalism
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Much has been made that the case for assisted suicide (to use the legally correct term, as the legislation creates an exception to the offence of assisting suicide) is not a conservative one but is a liberal one. This, however, concedes too much. It is by no means obvious that liberal principles require support for assisted suicide. An obvious practical liberal objection is that the safeguards are inadequate to protect against the risk of coercion. But even assuming that there are adequate safeguards, classical liberal principles do not commend a single answer on this debate.
The common law has long held that consent to the intentional infliction of harm or death is not, with very limited exceptions, a valid defence. Such doctrines existed at the time of J S Mill and it is noteworthy that he did not criticise them.
For classical liberals, Mill’s Harm Principle is foundational. According to it the sole purpose for which power may be exercised is “to prevent harm to others.” Mill adds that “His own good, either physical or moral, is not a sufficient warrant.” It follows on Mill’s Principle that suicide may not be prohibited. But what about assisted suicide and euthanasia?
If D assists P’s suicide or indeed kills him consensually, is he not harming another? Nowhere does Mill explicitly consider this issue but in he does have a discussion of a related matter:
“In cases of personal conduct supposed to be blamable, but which respect for liberty precludes society from preventing or punishing, because the evil directly resulting falls wholly on the agent; what the agent is free to do, ought other persons to be equally free to counsel or instigate? This question is not free from difficulty. The case of a person who solicits another to do an act, is not strictly a case of self-regarding conduct. To give advice or offer inducements to anyone, is a social act, and may therefore, like actions in general which affect others, be supposed amenable to social control. But a little reflection corrects the first impression, by showing that if the case is not strictly within the definition of individual liberty, yet the reasons on which the principle of individual liberty is grounded, are applicable to it. If people must be allowed, in whatever concerns only themselves, to act as seems best to themselves at their own peril, they must equally be free to consult with one another about what is fit to be so done; to exchange opinions, and give and receive suggestions.”
The key point is that Mill concedes that a principle against criminalising instigators does not strictly fall within the harm principle and the answer Mill gives acknowledges nuance and complexity: in cases where the instigator derives a benefit from it, he considers prohibition to be appropriate. The examples he gives are those who run gambling houses or brothels.
The point, though, is not to engage in exegesis of Mill but to note that there is a tension between two liberal principles. On the one hand, the person who assists suicide (or kills someone at their request) does “a social act, and may therefore, like actions in general which affect others, be supposed amenable to social control.” On the other hand, if someone wants to commit suicide they “must equally be free to consult with one another”.
To put it more generally, there is a tension between the harm principle and respect for autonomy. These are both important liberal principles and, in the case of assisted suicide, a classical liberal could very well reach the conclusion that the prevention of harm should win out over autonomy.
It is notable that the ASI a few years ago published a paper arguing that the common law rule that consent cannot be a defence to ABH and GBH should be overturned. But as the learned author noted “There must, of course, be limits” and it is notable that he did not think that rule should be overturned when death is concerned. Indeed, I understand that he opposes the legalisation of assisted suicide.
To conclude, classical liberal principles do not give a single answer to the question of whether assisted suicide should be legalised or not. But what I would hope that they can all agree on is that this should not be added to already long list of state functions as the Leadbeater Bill proposes to do. The Swiss model of decriminalisation as a matter of general criminal law (unless it is done for selfish motives) but with no state involvement in the provision appears to be more aligned to classical liberal principles than what is being proposed. However, as I argued, a good case can be made that the status quo is also consistent with classical liberal principles.