In setting a frame of reference for a discussion of euthanasia in the late 1990s, John Finnis – as always, with great erudition – pointed out that “arguments for legalising euthanasia rely on claims about autonomy rights, or claims about political pluralism, or on both sorts of claim”. From early in his article Finnis challenged supporters of euthanasia to “describe the alleged right, identify who has it, and delineate its boundaries”. Without being drawn too deeply into the detail and complexity of Finnis’s (then stated) position – with the attendant risk of a lapse into superficiality – we might seek to clarify what must be regarded as the very antithesis of the right to life enshrined in Article 3 of the Universal Declaration of Human Rights. In short, why does it appear to be necessary to assert a right to die if we could simply proceed to take our own life, free of the trappings and entanglements of rights, laws and legal institutions? In that situation are we not simply asserting a ‘Hohfeldian liberty’ which implies, at the simplest level, an absence of legal constraint, equating to no legal duty to refrain from a suicidal act? Put another way, we are ordinarily free to do what the law does not prohibit. (Though it is worth bearing in mind that attempted suicide was a crime prior to the Suicide Act 1961.)
The obvious answer is that some people do not have the physical capacity or resources or emotional resilience to pull off what will be for them a gigantic leap into the dark. They need to be assisted to die. And this explains the origin of the legislative proposals in the Westminster Parliament in which the concept of ‘assisted dying’ has a central role – see the Terminally Ill Adults (End of Life) Bill. Parallel deliberations are also currently underway in the Scottish Parliament – see the Assisted Dying for Terminally Ill Adults (Scotland) Bill.
If we return briefly to Finnis’s challenge, reframed as what are the boundaries of alleged rights associated with euthanasia?, one of the persistently recurring difficulties with assisted dying is that it may be problematic for those left behind, particularly those who have been involved, with the best intentions, in assisting someone to die. The point here is that an assertion of a ‘right to die’ is relatively unproblematic provided no one else is involved, equating, as mentioned above, to the exercise of a ‘Hohfeldian liberty’. When Philip Morris helped his wife Myra to die in 2023 by travelling with her to a clinic in Switzerland, he potentially faced not only prosecution in the UK under section 2(1) of the Suicide Act 1961 but also forfeiture of his wife’s estate (of which he would otherwise have been a major beneficiary) under the Forfeiture Act 1982. Ultimately, neither of those consequences actually befell Mr Morris.
The (alleged) right that Finnis grappled with – being arguably (legally) unproblematic so long as it is a ‘Hohfeldian liberty’ – could not be imagined as a straightforward ‘Hohfeldian claim-right’: ‘I have a right to die, and you have a duty to kill me’. A ‘right’ couched in those terms has more than an air of absurdity about it, certainly in a UK context.
What is clear, even from a cursory examination of the Westminster and Scottish Parliament Bills making their way through the various stages of the parliamentary legislative process, is that if the elusive ‘right to die’ has any counterpart in the real world it is probably not as a ‘right’ in any conventional sense, but as a cluster of facilitations that eligible persons are given the legal ability to access. Such a regime would be supported, and made to work (in law), by a network of ‘Hohfeldian immunities’ (from prosecution) and ‘Hohfeldian disabilities’ (constraining prosecutorial action) in order, for example, to give medical practitioners involved in assisting someone to die the necessary legal protections to act with (legalised) impunity. And it goes without saying that measures would be included to ensure that those opting for assisted dying are safeguarded against improper interventions on the part of (for instance) family members who may want to rid themselves of, for example, an elderly or infirm relative they regard as burdensome.
At the time of writing, doubtless well-intentioned parliamentarians continue to pore over the detail of the Bills progressing through the two Parliaments. Obviously, it is still too early to predict whether the Bills will see the light of day as enacted legislation. But, if it is to be assumed that debates now underway are mainly focused on issues of granular detail, has a Rubicon already been crossed? Finnis makes reference to a core principle which centres on the dangers of weakening “society’s prohibition of intentional killing”. When we follow through the logic of the sacrifice of that principle could (as Finnis puts it) “a new structure of radical inequality, with implications of the most sinister kind” emerge? In this context, Finnis cites the decisive rejection of Northern Territory euthanasia legislation which the Territory’s First Nations community had regarded with fear and hostility.
Without losing sight of the notion of logic, it is well recognised that logicians dismiss the idea of slippery slope reasoning as fallacy. But that idea nonetheless fits with a conception of human nature in which actions and reasoning may often be escalatory in a way that is neither predictable nor (necessarily) strictly logical. Emboldened by the success of step 1 we move to step 2. Emboldened by the success of step 2 we move to step 3. Accelerated by, but even in the absence of, climate change, we may be edging (back) towards an age even more extreme than that chronicled by Eric Hobsbawm in his book Age of Extremes, where the previously unthinkable becomes routine. Only a decade ago, few would have thought that the Westminster Parliament could be indefinitely prorogued. Few would have thought the Capitol Building could be at the centre of a violent apparent insurrection. Few would have thought that a UN Special Rapporteur on the situation of human rights in the Occupied Palestinian Territories, could have declared that there are ‘reasonable grounds’ to believe that Israel is committing genocide against Palestinians in Gaza.
In Hitler’s Willing Executioners, Daniel Goldhagen comments on the climate of public moral outrage that accompanied, and halted, the Nazi euthanasia programme “which saw German physicians take the lives of more than seventy thousand people whom they deemed to have a ‘life unworthy of living’ because of mental infirmity and congenital physical defects”. Goldhagen finds that no such widespread protest occurred when the Final Solution – a ‘euthanasia programme’ taken to an extreme beyond our imagination – was set in motion and was grinding remorselessly onwards. Pessimistic as this may seem, are we, as a society, being too reticent about the fact that we appear to have already ‘crossed the Rubicon’?
Suggested citation: Ross, Hamish (2025) Is Assisted Dying a ‘Right’?, SLSS Research Blog (RGU), 2025/05. Available at: https://rgu-slss.blog/?p=2285
