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| | | -- By ShefaliSingh - 16 Feb 2012 | |
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< | Eben, I would like comments on my second draft (this draft) if that is possible. Thank you! | | | "Distinguishing Omission from Acts"
My Criminal Law class was recently assigned to read a series of cases in our casebook under the heading “Distinguishing Omissions from Acts.” The section focuses on the ‘difference’ between letting a person die and killing a person, specifically in the context of people receiving life-sustaining treatment. The main case of the section is Barber v. Superior Court, which concerns two physicians who were charged with murder and conspiracy to commit murder after they terminated life supporting measures being administered to a deeply comatose patient (with the approval of the patient’s family). In order to distinguish the act of ‘pulling the plug’ from unlawful killing, the California District Court of Appeal asserted, “the cessation of “heroic” life support measures is not an affirmative act but rather a withdrawal or omission of further treatment.” Barber v. Superior Court, 147 Cal. App. 3d 1006, 1016 (Ct. App. 1983). This was so, the court reasoned, because disconnecting the life support devices was analogous to refraining from giving the patient the life sustaining treatment. | | | So why do we claim there is a difference between assisted suicide and the termination of life sustaining treatment, a difference so substantial that one act merits acceptance and the other criminal prosecution? Because these distinctions help us distance ourselves from a thought we will never want to confront, a concept we choose to keep at bay with words and legal reasoning. As social creatures, we do not want to believe that people–especially ourselves—are capable of killing a person they love. | |
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< | “But that’s not it,” people will rationalized. “The person was suffering, he freely made the choice to end his life, she only gave assistance through compassion and mercy, he would have tried another way anyway,” and so on. These are all important considerations, of course, but they are not part of the essence of “the thang.” Helping another—a friend, a spouse, a family member—to end his or her life not only has consequences for the deceased, but also the assistant who is left to live with what she has done. This person may be consoled by that fact that her loved one is no longer suffering, but that does not mean the experience is not traumatic. | >
> | “But that’s not it,” people will rationalize. “The person was suffering, he freely made the choice to end his life, she only gave assistance through compassion and mercy, he would have tried another way anyway,” and so on. These are all important considerations, of course, but they are not part of the essence of “the thang.” Helping another—a friend, a spouse, a family member—to end his or her life not only has consequences for the deceased, but also the assistant who is left to live with what she has done. This person may be consoled by that fact that her loved one is no longer suffering, but that does not mean the experience is not traumatic.
But that the experience is traumatic doesn't otherwise tell us how we
should think about it from any legal perspective. We are capable
of killing people we love, out of love and mercy as well as out of
anger, jealousy, avarice, shame, and all sorts of other emotions that
accompany killings. Mostly, we try to imagine that people who kill
people they love aren't like us, most often by believing that their
love isn't like our love, that there's something wrong with it, or
that there's something else wrong with the people, something that
separates us from them. But when the emotions that accompany killing
are emotions that we want to have, that we consider noble, brave,
loving, transcendent, we can no longer separate ourselves in this way
from people who have killed. We are compelled to recognize that our
humanity ties us equally to those who kill and those who are killed.
We lose our power of "splitting," and we must deal with ourselves as
we are.
Of course, that does not necessarily mean that we will tolerate the
killing. The ideological fabric of Christianity, for example, agrees
that we are tied equally to those who kill and those who are killed,
but understands "Thou Shalt Not Kill" with sufficient strictness to
require the dodgy logic you run up against in Barber and Quill in
order to mediate between dogma and ethical reality.
| | | Inconceivable Thoughts
The thought of having to confront this despairing scenario is distressing. Trying to imagine a suffering family member asking me to help him end his life, doing the act, and then having to live with the fact that my loved one is gone forever due to my actions is impossible. My mind prevents me from fully exploring the idea because it is too painful to conceive. Therefore we keep such thoughts at a safe distance away, wrap them in legal jargon, and never have to actually consider them. | |
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< | But what happens when such uncomfortable thoughts are brought to us by a confused client? To be a good lawyer, we must be able to think through such difficult issues, not just for our sake, but for our clients’ sake as well (that is, if we choose to be lawyers who interact with clients). Yet these important lessons, unfortunately, will never be taught in the law school classroom.
Word Count: 990 | >
> | Until we do. Which may
not be the way we expect. Imagination is a powerful realm of human
learning, along with experience. It is the unique power of the human
mind that it can bring us into the complexity of human experience
through imagination. We use literature, music, painting, and other
arts to learn more about ourselves, and the deepest conundrums of our
nature, before the lessons of experience are etched forever on
us.
But what happens when such uncomfortable thoughts are brought to us by a confused client?
Why necessarily
confused? Perhaps not at all confused.
To be a good lawyer, we must be able to think through such difficult issues, not just for our sake, but for our clients’ sake as well (that is, if we choose to be lawyers who interact with clients). Yet these important lessons, unfortunately, will never be taught in the law school classroom.
I would not be so sure that the subject won't be taught in a law
school classroom. We should find a moment to discuss it further
ourselves, in the fall or when we next meet.
In the meantime, though you have found the complexity, the
involvements of the unconscious, in the tissue of unconvincing
logic-chopping that is our law at its highest-flown about this
subject, you have yourself turned away at the last minute from
formulating an approach to the issues. Given that the distinctions
in the judicial opinions are too flimsy to believe, what other than
looking the other way can or should society do? | | | | |
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< | It might have helped at
that point in the conversation if someone had pointed out that this
distinction was the one resorted to by the medieval Catholic Church:
the so-called "doctrine of double effect" first articulated by Thomas
Aquinas to justify homicide in self-defense—as it
happens—and subsequently developed by the Church as the central
approach to issues involving end-of-life care. That it is
permissible to bring about as a side-effect of intentional conduct
outcomes it would be morally unacceptable to bring about
intentionally no doubt seems an impossibly fine moral distinction to
you. Sikhism is a very much more morally straightforward system of
thought than Roman Catholicism. At the bottom of the cases you
discuss—but not apparently at the bottom of the discussion that
occurred in your course—is a cultural and intellectual history
of some interest. Understanding it explains phenomena large and
small: why thousands of people die every year in the US in
unnecessary torment, and how some of the most wrenching decisions in
a human life are made.
Your way of reaching this point is analytically sharp and clearly
expressed. In that sense, this is a very successful draft. But in
the end, all you have been able to do is to show an idea is wrong.
What you didn't get at first teaching were the tools to do more with the idea: to show
where, right or wrong, it leads. | | |
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