Political Environments In Legitimating Assisted Dying Law

By Cedric Charles Gilson and Nataly Papadopoulou

Our aim in this blog is to draw attention to the publication and hope that readers not only will find it informative but that it will also provide fertile ground for extended study. Naturally, we privilege our own chapter here.

From the Introduction

This new Research Handbook from Edward Elgar examines the many ways in which health engages human rights law. It also explores current debates which challenge traditional perspectives of rights and identifies potential new directions in which human rights law might venture. Elizabeth Wicks and Nataly Papadopoulou bring together renowned experts who pose important questions about the limits of human rights, and the law more broadly, as new threats and opportunities related to health emerge.

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Our Chapter

In composing our contribution, Dr Papadopoulou and I collaborated productively. Inspired initially by the unique manner in which law governing assisted dying in New Zealand was instituted, we identified the political environment of legislation as crucial to legitimising new law. We felt this important because legislating in this area often is conflicted, a simple majority vote in parliament, for example, indicating only triumph of one assertion over another. We sought a surer foundation for legitimacy and concluded that it resides in the political environment of law-making, moreover that it should be legitimised by the people whom it concerns.

We perceived that the source of legitimation of the act in New Zealand was the voting public, even though it already had passed in parliament and received Royal Assent. Detail can be read in the chapter but, for present purposes, a referendum among the people to approve the act was held, a positive outcome of which would signify its continuation in statute. Here was a novel approach in which the provisions of the legislation were apparent to all and could be put to public consultation. As if vindicating this unusual approach, a bill to decriminalise the use of cannabis, introduced contemporaneously with the aforementioned act, was also put to a referendum. In this instance it was declined.

Although we alluded to legislation in other jurisdictions, our commentary inevitably leans towards that of the United Kingdom (specifically that of England and Wales). The grindingly slow parliamentary procedural system there has so far failed to pass a bill.

Our personal views are neutral over assisted dying per se, as befits academic study, but we find it better informs the central problem to study the political environments of decision making and the way in which they legitimate new legislation.

The disappointment of representative democracy

This is the system in the United Kingdom where a constituency member of parliament is nominated along party political lines and elected to represent all the constituents, at least in principle. We consider representative democracy—a scheme of indirect democracy— an imposter because electors’ preferences are not necessarily represented in parliamentary debate. When it occurs, it can marginalize electors. Needed for making meaningful choices are political environments where the individual can entertain the likelihood that their contribution can add usefully to debate and will be valued.

The immanence of democracy

We have characterized direct democracy as stand-in wisdom for legitimating law. That is, it is a new medium of expression through which law closely conforms to the wishes of the people. It is a transformation that elaborates our theme. We regard direct democracy not only as a political system with regard to its norms but also as humanitarian philosophy, inherent in ordinary life. À propos our editors’ introductory remarks, we question whether it is not also immanently invested in humanity.

This leads us to a side argument as a companion to reading the chapter, indeed the whole Research Handbook. The logos of the dissertation over decriminalising assisted dying resides in the conflict between intrinsic personal rights over one’s own death and spiritual objections.

The task for the legislature is mediating in the dialectic between individual sentiment and public policy. A different arbiter is needed for this large undertaking. The tenor of our narrative suggests that, not only can democracy represent substitute judgment over the form law should take but also that it has moral compass. Then, amid the controversy, democracy can stand as a morally compelled arbiter in forming law.

Research Handbook on Human Rights Law and Health
Edited by Elizabeth Wicks, and Nataly Papadopoulou
404 pp | Hardback | eBook
ISBN: 978 1 80392 802 9

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Deliberative democracy: the oxygen of rational consensus

The antithesis of representative democracy, deliberative democracy, occurs where fully expounded propositions are deliberated upon by groups of informed discussants. As the following quotation in the chapter text heralds, ‘Deliberative democracy seeks quality over quantity by limiting decision-makers to a smaller but more representative sample of the population that is given the time and resources to focus on a single, important issue’. It means they can deliberate freely and independently on the matters concerned and pronounce their own verdict. Sometimes these are fed into government.

In their Introduction to the Handbook, the editors applaud the inclusion of democracy as a welcome alternative from which to consider decriminalisation of assistance in dying. Post-publication, we urge caution for fear of mistaking direct democracy as an indiscriminate, libertarian means of unlocking freedoms. The New Zealand experience demonstrated that electorate discretion still could be exercised over sensitive legislation and policy. The purpose and content of the act and bill concerned plainly were visible to voters, who could appreciate their implications. That the associated referendums became exercises in discretion was apparent in rejection of the bill to decriminalise the use of cannabis, because it risked allowing minors access. Such were mature responses to erstwhile intransigent social dilemmas, fashioned by an electorate not arbitrarily energised by opportunism nor liberal credos.

Citizens juries: the apotheosis of people-centred discretion

Characterised by deliberative debate, participants enjoy equal representation and expect their contributions to be respected. Regarding legitimation of the law, citizens juries, the operation of which is valorised in our chapter, enshrine them all. They can play important rôles in informing how law and policy can be shaped. While their verdicts sometimes are contributory to arguments rather than prescriptive, as is regulation, their influence can bring legitimation closer to the aspirations of the people. It represents an important shift in considering the social intention of law.

En fin

Our approach in the chapter describes an alternate route for considering how law over assisted dying amid conflicting opinion can be legitimated. In our study we have defined it as relying on democratically derived endorsement of legislation by agencies that do not rely principally on political constitutions, government, parliament or other public institutions but from non-adversarial expert and lay deliberating bodies. It is the weight of peoples’ opinions that informs government and derives legitimation.

We enjoyed this exploration and trust that our contribution adds to knowledge inhering in this obdurate problem.

Research Handbook on Human Rights Law and Health

Edited by Elizabeth Wicks, Professor of Human Rights Law and Co-director, Centre for Rights and Equality in Health Law (CREHL) and Nataly Papadopoulou, Lecturer, Leicester Law School, University of Leicester, UK

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