Euthanasia and the Common Law

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I've been waiting for an opportunity to discuss the quirkiness of the common law, and last night I found a great illustration.

Broadly speaking, Common Law, the system we use in American, is based heavily on precedents. The idea is that if a given decision is right for Person A in situation X, it's right for Person B who later finds themself in situation X. Moreover, it's efficient: Once the first case is decided, the world is on notice that this is what the law is and this is how cases are decided. The world can now conduct its business knowing what the law is. Precedent ensures stability. Finally, following precedent is fair. If Person A is found innocent in some situation, it's not fair that I should be found guilty if I wind up in the same situation.

The major alternative is the system followed in mainland Europe, Civil Law (Not to be confused with Civil Law as it's used in the United States, meaning suits between private citizens over damages or injunctions or such). The Civil Law is law based on a legal code. All law derives from the written word of statutes passed by the legislature. There's no such thing as a judicially-created cause of action, as there is in the Common Law. Further, each judge is ostensibly engaging in original reasoning from the text of the statute, without regard for prior opinions or standards or readings. All of this is more democratic than the Common Law; under the Common Law, a significant portion of how rules work and a goodly number of causes of action are created by judges in the course of rulings. That is, living under the Common Law, you are living, at least in part, under rules created by unelected judges.

(There are other major differences between Common Law and Civil Law countries, and be aware that I'm simplifying here by providing the Theoretical Ideal of the two systems. In practice, Common Law judges are far more bound in terms of what they can do than it may at first appear, and Civil Law judges actually do follow a form of precedent, albeit a weaker form than that used in Common Law countries.)

So here in America we have the Common Law, which we inherited from England. Having a judicial system that is the result of nearly a thousand years of gradual evolution, most of it occurring in a country an ocean away under a feudal political structure, leads to some odd quirks. The broad shape of our system was set by judges hundreds of years ago, and while democratic reforms have occured since then, there is still a very medieval English character to American law. All of the reasons I gave above justifying the Common Law are after-the-fact theoretical justifications developed by modern law professors. Often one will encounter an odd way of doing things in American law (Why do we have such bizarre rules about what evidence can be included and excluded?) and will try to explain, on rational grounds, why the rules should be this way. This is pretty much bunk; for most of the rules in the American system, the reason we do it that way is because that's the way we've always done it, and why should we change things now? Or, to put it another way, "Because if we didn't do it that way, the King would win!"

So we have a bunch of inherited legal rules that may or may not make sense to us now, but are as they are because that's how they've always been, and who are we to question them? Among these rules are the rules governing crimes of omission. Generally, you have to act in order to be guilty of a crime. You have to fire the gun to be guilty of killing someone. You have to steal something to be guilty of theft. The exception are crimes of omission, of which you are guilty for failing to act. This harkens to Asimov's First Rule of Robotics, the clause about not allowing humans to come to harm through inaction. If you're a babysitter and you neglect to feed a baby, and the baby starves to death, you're guilty of killing the child even though you didn't do anything.

The key thing in the babysitter case is that the babysitter has assumed a duty of care over the child. Without that duty, there is no crime. The law is very cautious about convicting people for inaction. Without a certain, well-defined special relationship, the law doesn't punish indifference. If you see someone choking to death on the street, you're under no obligation to help him.

This brings us to the peculiar case of euthenasia. It is illegal (except in Oregon) for doctors to assist in suicide. They can't write a lethal prescription, they can't give a lethal injection. That's murder. What if, however, the patient is on life support, and requires respirators, intravenous fluid, and other artificial interventions to supply? Can a doctor pull the plug, assuming the patient is comatose and unlikely to wake up?

This question went to the courts, and the courts decided that yes, the doctor can. This is because the court decided that giving life support is an action, and ceasing to give it is inaction. Therefore, it's an act of omission, and only a crime if there's a duty. After some strain, they found there was no duty of care between a doctor and a comatose patient, if the patient was unlikely to reawaken and the family consented.

So: Killing a patient is legal if the patient is comatose and the killing involves turning off life support. It's not legal if a fully conscious patient asks to be killed.

A further wrinkle: The courts have previously found that there is a duty of care to administer life support to a patient undergoing cardiac arrest or some such. So: The doctor is required to give life support initially, as the patient enters a comatose state, but they no longer have the duty afterwards. The strain gets tougher if you look at things another way: Turning on the life support for the patient enterring a coma is an action, but one the court requires. Turning it off is also, arguably, an action; you have to pull the plug. But the courts have decided this is really an Inaction.

I think, and feel free to dispute me on this, that if you step back from the Common Law context this makes no sense. Is there a moral distinction between killing an unconscious person by turning off life support and killing a conscious and consenting person with an injection? I feel like there isn't, or that if there is there's not a stark enough difference to say that one should be legal and the other should be illegal. The only reason we have the distinction is because the courts decided that one case was most analagous to previously decided set of cases A, while the other case was most similar to previously decided set of cases B.

I'd be interested if anyone feels otherwise. Is there a meaningful distinction between the two situations outside of a legal context? Is there a good reason we should treat the two cases differently?

1 Comment


I think you meant to post this in the post You Be The Judge: Unconscious Murder. I've moved your post over there, but haven't changed anything. I'll happily move it back here if that's a problem.

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This page contains a single entry by Zach published on January 26, 2006 9:59 AM.

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