Law, Immunization and the Right to Die

Jennifer Hardes

• Publisher: Routledge
• Year: 2016
• ISBN:
  9781317373803
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

Law, Immunization and the Right to Die focuses on the urgent matter of legal appeals and judicial decisions on assisted death. Drawing on key cases from the United Kingdom and Canada, the book focuses on the problematic paternalism of legal decisions that currently deny assisted dying and questions why the law fails to recognize what many describe as "compassionate motives" for assisted death. When cases are analyzed as discourses that are part of a larger socio-political logic of governance, judicial decisions, it is argued here, reveal themselves as relying on the construction of neoliberal fictions – fictions that are here elucidated with reference to Michel Foucault's theoretical insights on pastoral power and Roberto Esposito's philosophical thesis on immunization.

Challenging the socio-political logic of neoliberalism, the issue of assisted dying goes beyond the predominant legal concern with protecting – or immunizing – individuals from one another, in favor of minimal interference. This book calls for a new kind of politics: one that might affirm people and their finitude both more collectively, and more compassionately.

Chapter 1

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Assisted Dying as a Problem of Community

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In much the same way that Durkheim associated the issue of suicide with a shifting social terrain toward dissociative, divisive human relations of anomie and individualism (1979: 8, 11, 288–290, 321), so too can one consider the extent to which assisted dying is also implicated in the relation between the individual and his or her relation to the community. From Durkheim’s vantage, excessive individualism as well as insufficient individualism could both lead to a subject enacting suicide: feelings of loneliness may contribute to seeking reprieve in death, as could feelings of excessive obligation and duty to one’s community, which could lead to one martyring oneself for the perceived good of the whole. In this regard, the act of suicide cannot simply be understood or examined as a problem of the individual; rather, it must be examined as a potential by-product of a larger sociological issue concerning how individuals relate to another within the larger community.

Indeed, until his insights, scholars had insisted that suicide was a religious or moral question but had not considered that society, and the norms and values that it purports, might shape people’s decisions to end their lives. Much the same can be said for discussions of assisted dying: one can and must ask to what extent social norms shape individuals’ decisions to appeal for the “right to die” and to what extent social norms also shape the laws that permit some forms of assistance in death (e.g., palliative sedation, passive euthanasia, travelling to Dignitas or another country where assisted death is legal) yet deny other forms (e.g., voluntary active euthanasia, physicianassisted suicide, mercy killing). Appeals to die and laws that deny or permit them do not emerge in a vacuum: they are, as Durkheim noted, reflective of people’s perceptions about their relation to themselves and to one another. The person seeking assisted death might claim it is to end their physical suffering but it is also in response to various social perceptions regarding the use and value of the individual within this society and the role they play in relation to others: this is based on the social perception of the “good life.” This account of the “good life,” as Butler (2012) notes, is a biopolitical and a governmental question. Political rationalities that organize life and “establish a set of measures for the differential valuation of life itself” help to put in place the valuation subjects give to their own lives on the basis of their interaction with and engagement with social determinations of this life: “The most individual question of morality—how do I live this life that is mine?—is bound up with biopolitical questions distilled in forms such these: Whose lives matter? Whose lives do not matter as lives, are not recognizable as living, or count only ambiguously as alive?” (Butler, 2012).¹ The subject of assisted dying is no different.

The Good Life, Immunization and Community

Italian philosopher, Roberto Esposito, notes that modernity’s version of the “good life” came to be associated with a life that was deemed to be “protected.” This protection took various forms: under Hobbes’ conception of sovereign arrangements of power the subject was deemed to be protected from the threat that other individual life posed within a state of nature. Likewise, with the rise of liberalism, protection took on a different meaning: it came to be associated with the notion of individual “rights” to be free and to act in a way that one could have property and ownership over land and one’s own body without interference from others. The liberal individual was born and he or she could act independently so long as said individual did not threaten another’s shared right to the same independence. Indeed the good life was equivalent with the immunized life—the life that was protected from outside interference and able to live with freedom from others (Esposito, 2011).

Yet this emphasis on life’s protection had other implications. In his works Communitas (2010) and Immunitas (2011), Esposito articulates the rise of immunity alongside the decline of its coterminous concept, community. A concern with individual life’s protection emerged, as Esposito notes, at the expense of the prospect of communal forms of life (Esposito, 2010, 2011). Indeed, within Esposito’s various works what comes to the fore most prominently is exactly this trade-off between individual life’s protection and the protection of forms of community and our exposure toward otherness. We heed a warning within his work of the increasingly privatizing tendencies of modern society that take us away from communal potentials, or the prospects of living together. This is why Esposito’s work is particularly insightful for the present book, which is concerned with how the politics of assisted dying is bound to a larger problem regarding the protection of individual life and how this protection of life is implicated in the question of community. Esposito’s thesis on a growing “immunization” of society away from communal bonds can therefore help us consider how individualizing techniques that emerge through a neoliberal rationality of governance are attached to larger questions about community and how assisted dying laws and the legal decisions that declare assisted dying to be illegal cannot be thought outside the question of community.

At base, Esposito (2008, 2010, 2011) depicts community as significant, reciprocal obligations imposed on individual members, whose participation in community entails gift giving. In his etymology of community, Esposito (2010) traces community to the root word munus, which denotes an obligation to gift-give, fundamental to the heart of community. The munus is an expropriative demand; it is a “gift that one gives, but not that one receives” (2010: 5). “It isn’t having, but on the contrary is a debt, a pledge, a gift that is to be given and that therefore will establish a lack. The subjects of a community are united by an obligation, in the sense that we say ‘I owe you something’, but not ‘you owe me something’” (Esposito 2010: 6).² As an expropriative demand, the gift is a type of duty in Esposito’s terminology (2010: 4–5). It is a “gift that one must give and because one cannot not give … It doesn’t by any means imply the stability of a possession and even less the acquisition of something dynamic and earned, but loss, subtraction, transfer” (2010: 5). “What predominates in the munus is, in other words, reciprocity or ‘mutuality’ of giving that assigns the one to the other in an obligation” (2010: 5). What unites us in this obligation is not some “thing,” or “property.” Relations are not constituted through something additive that is shared such as blood, birth or common identity but “a lack, a limit that is configured as onus” (Esposito, 2010: 6).

This notion of community is historical: communitas, in all neo-Latin languages has referred to “what is not proper;” what is common “begins where the proper ends” (2010: 3). Humans have always lived in common. It is a fundamental aspect of humankind to be in common; to have an obligation to one another. Indeed, “We need community because it is the very locus or, better, the transcendental condition of our existence, given that we have always existed in common,” notes Esposito (2012c: 14). Esposito thus reveals a “law of community” (2012c: 14) that he says sustains the appearance of what is held in common as a distinct entity (that is, as a proper community) by placing unyielding demands on individuals to give themselves and their support to others. The law of community is thus “the exigency according to which we feel obligated not to lose this originary condition” (2012c: 14). For him, being in community is necessary; nothing is more important or necessary than this question of community. Given its underscoring “donative obligation” and a “law of care” toward others, community has an affirmative meaning (Esposito 2012c: 59).

While communal being is necessary, Esposito also speaks of its paradox. Community can never be fully realized because it is founded on a debt or a lack. It is founded on the demands that it places on individuals and because of this community always threatens to undermine the agent who is giving. “We inhabit the margin between what we owe and what we can do,” says Esposito (2012c: 15), because to fulfill the possibility of community it will always undermine the one from which it is constituted. Community will always undermine the possibility of the individual subject. It is for this reason that community “presents us with an enigma: impossible and necessary” (2012c: 26).

Community, thus, does not exist per se; that is to say that community is not some “thing” but rather is “the ‘relation’—the ‘with’ or the ‘between’—that joins multiple subjects” (2012c: 29). It is not an “entity” but rather is a “non-entity” “… that precedes and cuts every subject, wresting him or her from identification with himself or herself and submitting him or her to irreducible alterity” (2012c: 29). Because community is not something that can be forged through the unity of individuals, but rather demands that the unit of the individual itself is opened out to heterogeneity rather than identification, demands for community or from the community are always demands that individuals cannot fully respond to, for if they do they risk themselves, which in turn risks the very subjects from which the possibility of community derives. The communal lack, or a negatively defined community, is thus articulated as a danger to the possibility of individual identity. The dependence of the munus on the subject, and the subject’s obligation to community, forever threatens the possibility of a “self” or identity. Campbell neatly states this point. He writes:

this debt or obligation of gift giving operates as a kind of originary defect for those belonging to a community. The defect revolves around the pernicious effects of reciprocal donation on individual identity. Accepting the munus directly undermines the capacity of the individual to identify himself or herself as such and not as part of the community.

(Campbell, 2008: x)

The mechanism of protection of the individual from this donative obligation is what I have already described via a brief discussion of law as community’s opposite form, immunity. Immunity is a concept that occupies a place across the biological and medical sciences, as well as the political sciences, referring in the former to a defense against disease and infection or biological invasion, and in the latter to a political exemption or a form of safe passage—a protection from prosecution (Esposito, 2008, 2010). Like communitas, immunitas derives from the munus, meaning gift, duty, obligation, but where communitas is affirmative, “immunitas is negative” (Esposito, 2012c: 59). Immunity emerges given the threat of community to individual identity and thus immunitas operates alongside community by granting a dispensatio from this obligation to gift give. Immunitas, therefore, takes on a negative meaning in which, through immunization, one no longer owes a debt to the community in the form of gift giving, and instead merely becomes a beneficiary. Immunization is thus articulated as a protective endeavor, or as a mechanism that blocks the threat of the excessive demands of the munus.³ As Esposito, notes, immune is “he or she who has no obligations towards the other and can therefore conserve his or her own essence in tact as a subject and owner of himself or herself” (2012c: 39). Immunity is appropriative rather than expropriative, and allows us to forge instances of the “proper,” noted earlier.

According to Esposito, mechanisms of immunization have historically generated various prosthetic kinds of institutional or discursive political mechanisms that are said to protect life from its own excesses by forging proper ways of being. Law is one such instance of immunization and is arguably the most central and originary immunity apparatus. Modes of immunization are therefore political practices that are ultimately norms over life that designate ways of living in order to prevent risks to this life. Immunization is therefore a matter of individual security and with this individual security comes a crisis of community.

Neoliberalism and a Crisis of Community

Esposito’s concern with the relation between immunization and community is also shared by a number of other scholars who reflect on the increasingly privatizing tendencies of modern society that take us away from communal potentials, or the prospects of living together. A large body of work claims that the contemporary political rationality is neoliberal (e.g., Beeson and Firth, 1998; Campbell, 2011; Foucault, 2008; Lemke, 2002; Rose, 1993, 1999), which, with its increasing emphasis on privatization and individualization, leads to a decline in communal bonds and forms of living. As noted in the introduction, communitarians have claimed that we are in an increasingly individualizing society whereby subjects bear less responsibility toward one another (e.g., Friedland and Robertson, 1990; Lasch, 1991; MacPherson, 1962; Olssen, 2010; Peredo, 2011; Putnam, 2000). Neoliberal rationalities of governance thus re-articulate community values in accordance with this rationality, meaning that individuals are encouraged to demonstrate responsibility for themselves and are also encouraged not to burden the society as a “whole” (May, 2012; Olssen, 2010). Indeed, as Esposito notes in our contemporary neoliberal era we have witnessed a “substantial growth in immunization” (2012c: 130). Such neoliberal governance agendas and dispositifs reorient social relations around enterprise and are highly contentious. As McNay (2009: 64) writes, “The orchestration of individual existence as enterprise atomizes our understanding of social relations, eroding collective values and intersubjective bonds of duty and care at all levels of society.”

As a particular mechanism of governmentality, neoliberalism structures possible fields of action in particular ways. This also means that neoliberal political rationalities generate neoliberal subjects (Brown, 2005; Cruikshank, 1999; Rose, 1993) and these subjects discipline themselves according to the political rationality that demands subjects treat themselves as business entities: in this regard, social relationships are “defined in terms of market alliances” (Gershon and Alexy, 2011: 801). To generate this neoliberal subject, political rationalities of governance generate and inculcate values of self-interest, and establish the conditions such that self-interest can be pursued (Foucault, 2008). This requires that neoliberal rationalities encourage “disconnection,” which is something “people labour to achieve” (Gershon and Alexy, 2011: 802). This means to suggest that neoliberal immunization is not a natural condition but rather it is a symptom of this particular neoliberal rationality of governance (Foucault, 2008; Lemke, 2002; Rose, 1999). Where a neoliberal immune rationality is oriented toward individualism, such displays of dissociated and self-interested human behavior and such a shift from communal values—or, perhaps better put, a shift toward different ideas of what constitutes communal values—are simply behaviors that are perpetuated through discourses that instill and inculcate “a particular anthropology of man” (Read, 2009); that is to say that the way we relate to one another is shaped by discourses, enunciated through mechanisms of governance, that construct certain truths about human nature and human behavior in order to codify how we relate to one another in line with the rationality of governance.

One of the particulars of a neoliberal rationality is the ways in which it shapes conduct by articulating persons as economic subjects, homo economicus. A neoliberal rationality of governance shapes its subjects as “entrepreneurs” of themselves and encourages—indeed makes possible—this entrepreneurship of the self by engendering fields of action that incite the pursuit of individual interests (Foucault, 2009: 228). This view of a neoliberal political rationality as a governmentality that structures fields of action is different to the classic liberal idea of governance: where the latter believed that a self-regulating economy would curb state interference, the former operates according to a governance agenda that interferes with society and sets the very conditions for the possibility of a seemingly self-regulating market place to emerge (Foucault, 2008). It does so by forging the social, economic and political conditions to support the possibility of the emergence and intensification of economic subjects (Foucault, 2008).

As such, a subject’s value is based on his or her ability to function as an individual as part of a larger whole (Brown, 2005); a neoliberal political rationality values subjects if they are increasingly entrepreneurial, self-sufficient and can take care of themselves economically, and if they do not burden the state or other private economic subjects (Brown, 2005). As per Brown’s (2005) commentary, a neoliberal subject strategically situates himself or herself as an individual entrepreneur who is increasingly divorced from public concerns in favor of private interest. The shift away from a social welfare model toward new political emphases on privatization and individual responsibility (Wacquant, 2010) forges new neoliberal subjectivities whereby persons’ worth and their internalization of this worth is measured according to how well they can function as independent economic subjects within the larger totality of the state (Brown, 2005; Mihic, 2008). This is not a “natural” condition (as some classic economic theorists had claimed), but is instead a manufactured condition shaped by rationalities of governance (Foucault, 2008).

Campbell (2011) brings the discussion of neoliberalism directly into conversation with the prospect of community. From Campbell’s vantage, a pastoral logic of power in neoliberalism has not dissipated but rather has intensified by increasingly emphasizing individualization within the larger totality. According to Campbell (2011), a neoliberal governmentality structures fields of conduct in ways that increasingly divide subjects from communal relations; neoliberalism is problematic because it emphasizes and inculcates technologies that sustain the protection of individual interests and a symbiotic dissociation from communal interests, and in turn is tied to the manifestation and erection of “a defense of the self and its borders” (Campbell, 2011: 119). More specifically, drawing on Esposito’s insights, Campbell (2010, 2011) argues that a neoliberal governmentality establishes human relations in increasingly “immunized” ways.

Specific to neoliberal immunization is an ethos that is divisive yet also totalizing. The individualizing, dissociative ethos of neoliberalism that divides individuals from one another is also part of a totalizing ethos that claims to unite these dissociative individuals through a shared goal of “reciprocal dissociation:” what neoliberal immunized individuals share is their common dissociation from positive obligations and duties toward one another in favor of minimal interference not only from the state but also from other individual neoliberal subjects. From Esposito’s vantage, where immunity mechanisms have been inscribed over time, today we live in a society that aims for the common division of persons from one another: “… society is legally governed and unified by the principle of common separation: the only thing in common is in the claim to whatever is individual, just as the object of public law is precisely the safegu...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Table of Contents
• Acknowledgements
• Table of Cases
• Introduction: Immunized Life
• 1 Assisted Dying as a Problem of Community
• 2 Vulnerable Persons and Relations of Enmity
• 3 Inviolable Persons
• 4 Security of Persons and of Society
• 5 Freedom from Dependent Relations
• Conclusion: Three Theses for an Affirmative Politics of Assisted Death
• References
• Index