Posted on May 19, 2020 at 4:39 AM
By Charles Foster
It has been a terrible few months for moral philosophers – and for utilitarians in particular. Their relevance to public discourse has never been greater, but never have their analyses been so humiliatingly sidelined by policy makers across the world. The world’s governments are all, it seems, ruled by a rather crude vitalism. Livelihoods and freedoms give way easily to a statistically small risk of individual death.
That might or might not be the morally right result. I’m not considering here the appropriateness of any government measures, and simply note that whatever one says about the UK Government’s response, it has been supremely successful in generating fear. Presumably that was its intention. The fear in the eyes above the masks is mainly an atavistic terror of personal extinction – a fear unmitigated by rational risk assessment. There is also a genuine fear for others (and the crisis has shown humans at their most splendidly altruistic and communitarian as well). But we really don’t have much ballast.
The fear is likely to endure long after the virus itself has receded. Even if we eventually pluck up the courage to hug our friends or go to the theatre, the fear has shown us what we’re really like, and the unflattering picture will be hard to forget.
I wonder what this new view of ourselves will mean for some of the big debates in ethics and law? The obvious examples are euthanasia and assisted suicide.
In the English courts, those debates are framed in terms of a contest between Articles 2 and 8 of the European Convention on Human Rights. Article 2 gives the right to life,1 and imposes on States an obligation to take steps to protect life. Article 8 is the most elastic of the Convention articles2: broadly read, it gives a right in article 8(1) (qualified by reference to broader societal considerations in article 8(2)), to live one’s life as one chooses. Article 8(2) is a very communitarian provision.
A typical courtroom debate about assisted suicide goes like this:3
- I want to decide where, when, and in what circumstances I live, and accordingly where, when, and in what circumstances I die: (Article 8(1)).
- I want assistance in dying: unless I get it, my Article 8(1) right will be breached.
- I recognise that there is a national law that says that I can’t get that assistance, and that that law is an expression of the state’s obligations under Article 2. But Article 2 should give way to Article 8.
- The Article 2 obligation is absolute – not qualified like Article 8(1). It should always prevail over Article 8: it’s only logical. Biological life is a prerequisite of autonomy. The dead have no freedoms.
- The State must look not only to the interests of the Applicant, but to everyone’s interests. If the assisted dying law is relaxed to allow the result sought by the Applicant, vulnerable people’s lives are likely to be lost. People might be pressured into dying because they are made to feel that they are a burden, for instance. Article 2 therefore insists that the assisted dying legislation remains unchanged.
- Article 8(2) means that the autonomy interests of all society must be taken into account. If the assisted dying law is relaxed, the autonomy interests of people other than the Applicant will be adversely affected.
Governmental responses to the coronavirus crisis fit neatly into this framework and, to a first degree of approximation, they can be summarised as: Article 2 wins, hands down: no contest: nothing else to say.
Going back to the assisted dying situation, if it is (or might be – for surely the precautionary principle applies) empirically right that legislation permitting assisted dying would indeed put at risk the lives of people other than those who choose, entirely autonomously, to die, the policy considerations that have determined the international response to the virus would, if applied consistently, seem to make it harder for advocates of assisted dying to advance autonomy-based/article 8-type arguments.
1. Article 2 provides:
(1) Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.
(2) Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the use of force which is no more than absolutely necessary: (a) in defence of any person from unlawful violence; (b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained; (c) in action lawfully taken for the purpose of quelling a riot or insurrection.
2. Article 8 provides:
(1) Everyone has the right to respect for his private and family life, his home and his correspondence.
(2) There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
3. See, for instance, R (Nicklinson) v Ministry of Justice  UKSC 38: http://www.bailii.org/uk/cases/UKSC/2014/38.html