“[T]o change the law is to change society”.[1] Of all the things said in Parliament recently regarding the Terminally Ill Adults (End of Life) Bill, perhaps this remark by the Lord Bishop of London is among the more memorable. It sounds like a truism. However, it seems not to have been said without at least a little controversy. For later that day, Lord Purvis of Tweed countered that it is not the law that would change society, but rather “that society has already changed, and it wants us to change the law”.[2] This part of the debate in the Upper House illuminates certain things about our constitution and our legal system with singular clarity. Hard cases do that. So, here, I shall take the opportunity to discuss these, considering briefly the position of Parliament, the role of popular will in the constitution, and, indeed, how the relation of law and morality unfolds in our system. I strive to take my principal cues from the debate in the House of Lords itself and then develop my discussion and use of sources from that.
In what follows in this series I pursue three connected aims throughout; each part interlinks. My first aim is one of constitutional theory. I aim to clarify the role of Parliament, as the legislature, in legislating on moral questions. This aim has an institutional aspect in the interrelation of Parliament and public opinion. This first aim relates to a second which is ethical and anthropological, of what conception of human dignity the law ought to embody, as the ius forming the background principles of the lex parliament promulgates. My third aim is jurisprudential, and implicitly, through the use of authors in my arguments, places the particular debate on assisted suicide within wider legal-theoretical debate around legal theory. This third aim directly relates to the consideration of human dignity, and, indeed, I hope that by the end of this essay the reader will appreciate that the human person is the basis of an authentic constitutionalism. In short, I see in the assisted suicide debate a fertile soil to formulate a humane constitutionalism, rooted in a holistic view of the human person.
- (A) The wisdom of the multitude and its relation to Parliament, first consideration
Lord Purvis of Tweed says that society has already changed, and it therefore wants the law changed.[3] In fact, the statistics are ambiguous, and, at best, the public is best characterized as being lukewarm on the proposition, with 55% expressly admitting they are likely to change their minds if a case of coerced suicide were to occur.[4] To quote two professors, “views could shift quickly”[5] and “preferences may be unstable”.[6] Respectfully, that part of the noble Lord’s position sounds more like a rhetorical overstatement for persuasive effect rather than a well-supported argument.
Nevertheless, there is a second element conceptually contained this statement of his which is noteworthy. That is, that the correct measure of legal change is majoritarian preference. Sure, his Lordship also engages in normative argumentation. But it cannot be denied that the majoritarian element is also part of his argument. Allow me to ‘steelman’ this position for a moment, though I disagree profoundly with it.
Aristotle, in his Politics, supplies us with an argument here, derived from the Sophists of his age.[7] It may be said, then, that there is greater wisdom in a multitude than there is in any single, or smaller, group of persons be they never so wise or upright. Granted, each individual in the great mass of the people, as the case may be, might not, as an individual person, be as wise or well-informed as that smaller group of people placed above him as his rulers. Nevertheless, the collective multitude, because it represents so many different perspectives and interests within society, may, in its social reflection, better identify the needs of the State, and their own interests as a polity, than the necessarily limited group of rulers themselves.[8] Stated shortly, “some appreciate one part, some another, and all together appreciate all”.[9] Thus, one may posit that the legislature ought to follow the will of the people, in the manner a pen is exercised by a writer: the people, and not their representatives, on such a view, exercise total agency. Their elected representatives in the Commons, and the representatives of their interests in the Lords, would thus be reduced to being mere ministers, servants, even slaves of their will. They are charged with only formulating such legislation as fits their shifting desires or modified social expectations. This is how I understand the normative conceptual content of Lord Purvis’s statement: “The reality is that society has already changed, and it wants us to change the law”.[10] I will say, however, that a distinction must be made between the Politics-derived argument, and the modern majoritarian conclusion, which may or may not follow from the argument. Indeed, it is not certain that the argument from the Politics itself stands in all cases, as Aristotle himself indicates.[11] I am not sure either that Lord Purvis would endorse the substantive content of this rule, and I think he intended to make that comment more as a matter of rhetorical posturing, though here I may be wrong; I do not have access to the consciences of their Lordships, only their spoken words.
Before we seek to contradict Lord Purvis, and before we consider other elements contained in the disagreement between him, the Bishop of London and the contrary position generally, we should examine a part of our constitutional structure. I take it that Lord Purvis does not question, in the words of his peer and respected judge, Lord Judge, that “the sovereignty of Parliament […] is […] the pre-eminent constitutional principle” which all in his Chamber accept.[12] The formal statement of the principle takes it that in the union of the King, the Lords, and the Commons, the whole body of the realm is represented, and thus consents, as a body, to the laws enacted by the assent and consent of the King-in-Parliament.[13] The principle, as Blackstone, states it, admits that “the power of parliament is absolute and without control”.[14] Here I think we may again apply Aristotle. The sovereign Parliament, now existing in a democratic polity, indicates that, through either the directly (Commons) or indirectly (Lords and the King)[15] representative institutions of Parliament, the people “all come together”, acting “collectively and as a body”.[16] Therefore, the sovereign power vested in the people is exercised by them through Parliament.
What is the point of me rehearsing all this? It is not trite law, albeit given a philosophical flourish? No. For here it is essential that we firmly grasp in our mind that within the nature of the sovereignty of Parliament, is contained the element of acting as a “body”.[17] The King and the “estates” of the realm act as head and members of the one body, representing the country.[18] In effect, Parliament is the abstract analogue of a human person. Just as an individual person exercises power of life or death over self, and makes determinations about every aspect of his life in his sphere of action, so Parliament has absolute power in a like manner in the body politic. Just as an individual person is a free agent who may choose to act morally or immorally, to act in accordance with law or to break it, Parliament is a free agent to act morally or immorally, to keep or to break international law.[19] That is what parliamentary sovereignty means from a strictly descriptive perspective, without considering whether or not any particular course of action is right. Keep in mind what I have outlined here, it will become quite important in Part 2.
- (B) Law and Human Dignity
- (i) Law as a powerful tool for either affirming or attacking human dignity
Now, to return to the Bishop’s statement: “to change the law is to change society”.[20] We need not belabour the self-evident nature of that statement. The very laws which established the Church of England which she serves, culminating with the Second Act of Supremacy of 1559, and the measures taken to enforce it, transformed the entire character of the nation from one Roman Catholic to one Protestant. It is wrong to say that law alone can have fundamental societal effects, but that it has a role in effecting societal change is indisputable. In more recent times the case of Northern Ireland is instructive. When the Executive of that constituent country of the United Kingdom collapsed, MPs led by Stella Creasy, used that as an opportunity to create social change regarding abortion and same-sex marriage there by law, irrespective of its controversiality in that country, which the formulators of the legislation quite clearly intended as a matter of a priori right.[21] That a change in law can change society is indisputable as, if not an analytical assessment of the statement, then at least a brief look at our constitutional experience, shows. We see illustrated in our discussion later, in Part 2, in the disjuncture between popular will and parliamentary enactment a clue as to the true function of members of the legislature, beyond a simplistic instrumentality. The question, however, that first arises for us is how do we account for the democratic despotism of an uncontrolled, absolute, sovereign Parliament with normative considerations of moral right?
There has been significant reflection on this question, by learned authors and judges, which will consider. Taking, however, our cues from the disagreement between Lord Purvis and the Bishop of London, we are given a very useful point from where to begin. Felicitously, it is the essential starting point for such a discussion in any case. Thankfully, nowhere in this immediate debate has anyone raised the specious and disingenuous argument that we ought not to legislate morality. All law touches morality either more or less directly. At every single turn in the House of Lords, different conceptions of the dignity of the human person have been invoked,[22] and richly normative moral arguments have been made on both sides on the rectitude of the Bill. The most basic issue in the State concerns the persons who form it, and whose good, as persons and commonly, the State is instituted to facilitate or pursue, as the case may be. The most basic question which all theory must confront, if it is to truly be conducive to the human good, is what is the basis of personal dignity? Then, what is the relevance of that dignity to the legislative power tasked with laying down stable rules conducive the common good?
- (ii) The autonomy-based view of human dignity
Lord Purvis himself invoked moral justice at one point in his own justification for supporting the Bill.[23] Unfortunately, he does not tell us what he means by the word “dignity”, leaving it as an ambiguous term in his speech. We must look elsewhere in the debate for help here. I think perhaps, of those who agree with him, Lord Falconer of Thoroton and Baroness Featherstone provide us with concept of dignity which we can substantively engage with.[24]
Lord Falconer conflates “dignity” with “choice”.[25] At least, he includes choice conceived as a right to personal self-determination encompassing the power over life and death (of self) as an essential component of personal dignity.[26] In his speech, he limits it to the case of those already dying.[27] Even with its wings clipped, as with Lord Falconer, I will argue, this autonomy-based view of human dignity is unsustainable.
Before that, we should consider Baroness Featherstone’s speech. Two principles drive her argument, autonomy and Mill’s harm rule. As to autonomy, she argues that the autonomy of the human person (which we have termed self-determination) is the essential right to “make decisions about your own body and life”.[28] Illustrating the principle from experience, she posits that autonomy encompasses the freedoms of religion, marriage, abortion and sexual behaviour. It does not take much to see that this view posits the human will as quasi-sovereign, as the arbiter of moral limits and reality, and, has affinities with the Justice Kennedy’s notorious, or, as he self-characterised, “exalted” theorising on the US Supreme Court.[29] I think it will be useful to bring it in here, being a clearer formulation of the same intellectual conception forwarded by Baroness Featherstone as a “central principle in modern ethics and law”.[30]
Justice Kennedy posits that autonomy in its essence is at the “heart of liberty” inasmuch as it, apparently, encompasses “the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life”.[31] For him it means that abortion, is a “‘liberty’ in the absolute sense”.[32] A fortiori if the human person is thus quasi-sovereign, then he has the right to kill himself. Indeed, all the more if it is merely limited to the limit case of almost certain death and with medical assistance. If Baroness Featherstone would desire to stand against potential future legislation extending a right to suicide writ large, she would have to adopt a different conception of human autonomy. The only fear she expressly recognises as legitimate is that of “coercion”,[33] which chimes with her view of autonomy, inasmuch as coercion trespasses on me, the quasi-sovereign person, and “my right to choose”.[34]
Next, the noble Lady cites J.S. Mill’s harm rule such that “individuals should be free to make their own choices unless they harm others.”[35] “Choosing” assisted suicide, she says, “does not harm others, whereas forcing someone to endure against their will is a harm”.[36] Thus, the quasi-sovereign individual is and ought to be free to do anything whatsoever irrespective of the character of the act so long as it does not “harm” anyone. The will and its choice, whatever that personal choice may be, according to Lady Featherstone and utilitarians in her tradition, is of supreme value, including the choice to continue or not continue living, here, in the case of pain. For her, harm is considered in light of the supreme value of the will and its choice. It should therefore be clear that except for Justice Kennedy’s rhetorical power, her and his moral systems are essentially kin.
Baroness Featherstone’s “central principle” of law, I think is vaguely analogous to the classical lawyer’s concept of ius as the principles of custom, ius naturale (natural law), and ius gentium (law of nations) in which lex (positive law) is made and interpreted,[37] except her view is hollow with principle merely being a measure of social custom, views, and an unsustainable ethical basis. The whole debate rests on what conception of the human person is held, what ethical commitments arise from that, and what role the legislative power has in facilitating the true ethical good of the person. Concomitant to that arises the question of what role the legislator has in relation to his constituents (and I include their Lordships in this assessment). I will, as I have been, address these issues positively, after presenting a rebuttal of the too extreme autonomy-based views on human dignity. It is necessary to do so, because on our conception of the human person our whole conception of the State rests.
- (iii) Rebuttal of the autonomy-based conception with first statement of alternate view
It is certain that each individual person has, in his very nature, the ability to choose certain goods for himself by an act of his will. It is also true that, in an ordinary state of affairs, when he is the one person who has the most complete knowledge and possession of his self, that he is best placed to make decisions about his life. Thus, the right to choose a state in life, a profession, whether or not to marry, where to live, etc. are decisions made best by the individual concerned, in the context of his obligations to others and to the State as a whole. The individual has, therefore, in a meaningful sense a zone of autonomy around him determined by his nature as a human person.
Now, this zone of autonomy exists because he is a human person, it is likewise limited because he is a human person. For man is by nature a social animal, and he is by nature political animal.[38] Humans requires the assistance and comfort of their fellows, and they, joined together, seek their individual and common good, that which conduces to their happiness, in political society. In the State thus constituted, in order that this common good may be achieved, individuals are directed to those activities they are to abstain from and those which they are to undertake.[39] The autonomy of the individual, subsisting in his nature, never disappears, but, rather because of his nature, is conditioned by the good of other individuals (because he lives in rational, affective, and interest-based relation with them) and of the common good of the State as a whole. Thus, whilst his autonomy may never be eradicated, the changing demands of the common good within which his own good is found may modify some of the bounds of that autonomous sphere of action, and the State be legitimately permitted to legislate in that regard.[40]
This is not alarming, for one need only consider, to give an extreme example, the conditions of warfare when autonomy ought not to be destroyed, but may, nevertheless, require a shift in its sphere of lawful and moral operation. Similarly, because man is a rational animal, and has the capacity to know and apprehend the truth of things,[41] it cannot be that the true nature of autonomous liberty, considered a part of a human’s true good, demands he have such wide discretion as Justice Kennedy and Baroness Featherstone might argue. Man must rather apprehend the truth of his own nature and of the reality wherein he lives and adhere to it. If then, that is his nature, that is his dignity, for the honour that attaches to anything is in relation to its essence, and, as we have seen, the essence of man cannot be to live as an autonomous godlike[42] atom, but to live in a state of liberty conditioned by the truth of his nature, reality, in the common good of the polis. I have here had recourse to the tools of philosophy. In the House of Lords, in this debate we are dealing with, the Lord Bishop of Newcastle made my point, and I think here it is shown, rather than being dismissive of religious views, as alas Baroness Featherstone seemed to be,[43] such views have, at the very least, a genuine secular utility. The Bishop said: “Our obsession with selfhood and individual choice belies our dignity and respect for others. In being human, we begin not so much with selfhood but with the idea of the other and of who we are in the realisation of community and society”.[44] This statement cuts to the heart of the disagreement around human dignity and the proper function of the legislature in relation to it.
What of Mill’s rule of harm? It may well have influenced legislators in certain areas over the years. It does not therefore follow that it is a sound rule to adopt, in either ethical or legislative action. Indeed, it is fundamentally misconceived. Adrian Vermeule has a very useful demolition of Mill in the law-making context. He cites Justice Kennedy’s truly “egregious”[45] majority verdict in Ashcroft v. Free Speech Coalition[46]where the Court held that computer-generated or adult-acted, so simulated, child pornography was protected speech.[47] The law being contested, in his harm-rule flavoured opinion, “prohibits speech that records no crime and creates no victims by its production”.[48] Thus, the law was held to be invalid. It is apposite to quote Vermeule directly; he says:
“This is John Stuart Mill’s harm principle taken to its logical endpoint, and the endpoint is a grotesque place for the law to be, a grotesque parody of the common good of a community. The victim is both, and simultaneously, the person watching and the whole polity. Child pornography tears at the very fabric of natural human order in ways that cannot be accounted for in a narrow calculus of immediate harms in production or use.”[49]
I would not, of course, ever wish to, nor am I now suggesting that Baroness Featherstone applies, or would apply, the harm rule in this way. Nevertheless, that would be a happy intellectual inconsistency in her, whilst J.S. Mill’s harm rule itself stands condemned. With questions of life, and in particular suicide, even in its MAID variant,[50] the “victim is”, to quote Vermeule again, “both, and simultaneously” the person dead, the person assisting in the suicide, and the whole community.[51] Suicide, again, affects the root of “natural human order”[52] in such basic ways that a truly narrow and short-sighted assessment of harm, in the style of Mill, cannot properly account for. This should suffice for the time being, as, I think the following discussion should make clear what I mean when I consider both the person and the community as victims.
- (iv) The transcendent basis of human dignity, second statement of the alternate view
I will now return to the Lords Spiritual, because their statements assist in take the argument forward here. I find her, and the contributions of the Lords Spiritual to the debate to be incisive, though I will, after them consider what Lord Sumption has said extrajudicially, alongside some philosophically oriented analysis of their statements, to balance the discussion. If their contributions are like a sunbeam, we may refract them through the prism of philosophy, so that we may see and appreciate the different colours of their contributions more clearly. It is my express intention here not to do theology, but to give a philosophically coherent account accessible to my readership. Everything I say is thus intended, and additional sources I use, I use them for their philosophical utility.
What is the first principle in any integral humanism, that is, in a system focussing on the human person as the highest subject in creation, in harmony with the rest of reality? The first principle is, in the words of the Bishop of Newcastle, “the sense of transcendence that informs personhood”.[53] His Lordship states the principle theologically.[54] Here I will, however, state the purely philosophical content of the principle.[55] That is, the human being, is not merely as a member of the animal kingdom, and purely intramundane, but is a rational subject capable of knowing truth, aspiring towards it, and assimilating it. Truth is thus not a purely abstract value, but a personal value in that the human person is capable of, so to speak, being ‘oned’ with it (to borrow a Middle English expression).[56] And since truth is of a enduring value, we may say eternal, so it is in knowing, conforming to, and living (assimilating) that transcendental value, in how it defines one’s own life and being, and reality generally, that one’s ultimate good is found. The eternality of truth may be discerned from the constancy of mathematical, logical, and moral principles, and is not something I have space to develop here at length. Indeed, insofar as any values are absolute, whereas the material world itself is finite, we affirm “the transcendence of the human person in the natural order itself, in so far as the person is a spiritual [that is, at minimum, not merely related to temporal values] whole made for the Absolute”.[57]
From this follows an essential distinction and an accompanying consequence for the legislative power. Inasmuch as any single human person’s true good is not entirely intramundane, the State has no right whatsoever to interfere with the person’s pursuit of the transcendental good. The State has power, indeed, over those parts of the person which are intramundane, earth-bound, to order them to the temporal good of society, wherein the person’s temporal good is found. Nevertheless, the State ought not, and cannot legitimately, interfere with the transcendent. Indeed, the State, itself being subordinate in the hierarchy of norms to the transcendent truth, and the good bound with that truth, must conform itself to it, in a like manner to individual persons. Reality being an integral whole, where the State is rightly ordered, there can be no conflict between State and transcendent obligation, which includes moral obligation as ultimately grounded in transcendent truth. But where there is conflict, the transcendent must take precedence.[58]
Our prior analysis has considered that the human person exists as a rational subject in interrelation with others, who, by the demands of his nature, exists in society and is ordered to the common good. Indeed, human dignity requires that the State pursue the common good, as a necessary incident of man as a social and political animal. The Bishop of Newcastle stated that in our humanness “we begin not so much with selfhood but with the idea of the other and of who we are in the realisation of community and society”.[59] I think we may better state the idea as that we begin as individual human persons who, inherently in our nature, are made for communion with others. As individuals, we are inherently ordered not to ourselves, like a sort of folding in on oneself and one’s desires, but rather to connection with the other.[60] That should be evident from our social and political nature. This, taken with our reflection of human dignity as rooted in transcendence, leads us to conclude that any measure taken as regard human persons must respect the truth of their psychosomatic existence. That is, as embodied persons,[61] existing for interpersonal communion, made to realize through their choices the truth of their nature, and thus to achieve within themselves the happiness of virtue. The State must be supportive of such an end, and not a hinderance, either by unjust constraints or, as in the case of legalizing assisted suicide, unjust relaxations of law. We shall return to this point.
It is not therefore the human being as essentially an atom existing in a sphere of absolute autonomy subject only to him not ‘harming’, or violating another’s sphere of autonomy, that is an accurate view of one’s humanity. Rather, the human being is fundamentally social whilst simultaneously having a legitimate sphere of independent action, subject to the determinations of the common good, which are themselves conditioned by the person’s inviolable rights.[62] For, as we have said, the utilitarian view that holds that one must achieve the apparent greatest good of the greatest number is wrong, and that, rather, the State itself is ordered to the perfection of the human person. Incidentally, I think this is the only position on which authentic liberty in a free society can be maintained as it requires the person to act uprightly, and thus preserves justice through non-legal constraints, and requires the State to respect the rights of the individual and his legitimate scope of self-determination.
In the first part of the debate I think that the Lords Spiritual, though I commend them for holding out for human dignity, did not fully articulate the correct position fully. They appealed axiomatically to the intrinsic value of human life as a Christian conviction,[63] without showing that this value can be known by all from reason alone, independent of theology.[64] The value may be held by Christianity, but it is, in its nature a value independent of divine revelation, and is rooted in our common human nature. It is the task of reason first to show this. On this count, I think Lord Ahmad of Wimbledon, a Muslim Peer, articulated the position better, though I shall return to his contribution later.[65]
So, what is the content of the intrinsic value of human life? For, without properly articulating what this content is, one’s interlocutor may easily think that we are being irrational by not adopting a view that value consists rather in quality of life construed as relative enjoyment. Let us therefore be careful to articulate our position. I think we would be right to say that the intrinsic value of human life, and the consequences of this for our actions, must be discerned from our human nature. We have stated that humans, as persons, are ordered to eternal truth and that by knowing, being conformed to, and living, and thus assimilating to themselves, this truth that they live properly human lives. Their lives, ordered to eternal truth, thus have a transcendent and eternal value, not merely a value judged by relative pleasure and pain. This naturally leads to an argument in philosophy, derived by Peter Geach, that personality continues in some way beyond death because an aspect of the person is not merely temporally bound, but, being linked to eternal values and linked to them, has an eternal existence, for a thing must be proportioned in some way to that which it relates to.[66] A person qua person, and not merely as a sensate member of the animal kingdom which he, in his eternal value goes beyond, ought to make decisions proportioned to his personhood. The person, as lived-in-body is a psychosomatic unity and the higher element, his rational essence takes precedence as the locus of meaning and moral judgment. This personhood is of eternal value and in its essence relational in its social and political nature. To properly evaluate legislative decisions as to life and death, we must adequately account for the proper meaning of social and political nature of man in the State.
- (v) The position of human dignity in direct relation to assisted suicide
As regards an assessment of the individual person, I think we may be quite brief, which is not to say without, obviously, empathy. Augustine, speaking of the legendary Regulus who refused to commit suicide, says: “Patient under the domination of the Carthaginians, and constant in his love of the Romans, he neither deprived the one of his conquered body, nor the other of his unconquered spirit”.[67] The personal fruit is the virtue of patience, and concomitant with it, fortitude. The person, as existing relationally, thus is enabled to give the laudable example of patience and fortitude under suffering, and a witness to the value of life as lives for others in giving such an example. In that we belong to each other and not ourselves, we ought to give the benefit of a good example to the community, and to kill oneself, even in extremity, would be thus to wrong the community.[68] By a positive example, the person lives a sort of happy immortality by memory and example. And if what we have said about the existence of personality beyond bodily death is true, then the personality which thus acted with the patience and fortitude proper to a human person, then the posthumous personality surely bears the fruit of these virtues posthumously. The choice to suffer thus always lies with the person, but surely a law which better enables thus, ideally in the context of a culture itself which promotes life, enables this positive fruit to come. To legislate for a choice of assisted suicide is to make the contrary choice and to say that comfort, painlessness, and rather than an affectivity ordered by virtue, a personhood ordered to transient affective comfort, are absolute values. It is to decide about the very character of society through the persons who compose it. We must have compassion, and empathise with others pain, especially in terminal illness, and I certainly do not presume to condemn any particular person whose judgement may have been overshadowed by the clouds of suffering; yet, still, empathy does not mean to allow suicide and to aid in it. Empathy calls for compassion, and true compassion does not kill the one whom it loves; we shall see this clearly later.
This leads us to our next step, towards the social and political nature of the human person, we come to the people who immediately relate to the person, and to the State which legislates for assisted suicide. Lord Carlile of Berriew observed that thus legislating would “allow a citizen deliberately to perform acts which are intended to cause the death of another citizen”, a thing, since capital punishment was abolished in the United Kingdom, not permitted outside of war.[69] In principle, capital punishment, due to the eternal value of the human being, could only have been allowed at a more primitive stage of social development if there were no other more humane mode of confining the evil posed by the wrongdoer. This is implied, for example, in the arguments of Aquinas on the matter, in that he says that if “the health of the whole body demands the excision of a member” (emphasis added) then amputation may be necessary, so likewise if a person is dangerous to the community on account of some wrongdoing, then it may be advantageous for the public authority to execute him “in order to safeguard the common good”.[70] The use of “demands” implies that where necessity not prevail, capital punishment is not a permissible remedy. Indeed, even for the reason that there may be error in judgment, which is irreversible,[71] this mode of punishment is inherently inferior and ought, when public circumstances allow, to be got rid of, and this is not even considering weighty reasons of the persons intrinsic dignity. Even if it did not account for other aspects of a fuller sense of human dignity the basic rationale of abolishing capital punishment in this country was “that, if one innocent life was taken, it would be one too many”.[72]
Yet, with assisted suicide, it is not only the risk of mistake that exists. More fundamentally, radically, it first overturns the principle that the State ought to protect the life of the individual, as possessing inherent immutable dignity, and instead replaces it with a view that life is disposable. That life is like a consumer good, to be got rid of when inconvenient,[73] which the State should assist in. This sort of autonomous thinking is directly contrary, as our prior reflection indicates, to the true human good of virtue which human dignity demands is supported by the State.
Next it is to radically refashion the relation between life and death, citizen and State, and between citizen and citizen, including between members of one’s own family.[74] I am here referring to the Lord Archbishop of York’s rhetorically powerful statement,[75] which, beyond rhetoric is truth. The risk of coercion is not merely an unhappy incident of allowing assisted suicide. Rather, I think it is baked into the logic of assisted suicide. For, indeed, the autonomy-based view of human dignity which justifies it is a selfish theory obsessed, as we have said, with selfhood. Thus, it is no wonder that selfish people should use assisted suicide to further their own private ends at the expense of the one to die. And to take up the case of “self-imposed coercion” where a person, to alleviate the burden on their family feels compelled to kill themselves for their loved ones sake.[76] Where there should be compassionate support, one is forced, by the availability of the decision, to consider others apparent good from the perspective of their selfishness. In its entirety, assisted suicide is repugnant to the dignity of man, and a decision to legislate for it is to choose to reject the integral good of human persons.
Lord Ahmad, in my view, provides a very powerful summation of an argument from natural reason for rejecting assisted suicide on the basis of intrinsic human dignity.[77] He begins stating that the right to life is the most fundamental right, and that because of this right we should not permit assisted suicide, but rather implement solutions which alleviate suffering in line with that right.[78] I will say here that the right to life demands respect for person as another with an independent existence, and the giving of this respect entails the human communion between us. The arguments I have made above regarding the intrinsic value of life requiring it not to be treated like a consumer good, and the role of selfishness in the exaltation of autonomy directly relate to this right. We cannot respect the immutable right to life etched onto our human nature if we base our decisions on mutable considerations exalting the mere choice of will regarding painlessness and comfort.
Next, Lord Ahmad makes the illuminating point that “I believe that we have a moral as well as a legal and legislative duty to preserve life and offer care in its most fragile stages, not merely through the provision of medical interventions but through dignity, compassion and kindness”.[79] He thus says that for the legislature the basic question is, “are we truly offering compassion when we facilitate death?”[80] For, indeed, and entirely comfortably with our lengthy arguments above: “The role of the state is to protect life”.[81] Here, moral duty, and moral values, as the ius which forms the background principles of positive law, impose a duty on the legislature to best realise these values for the realization of the authentically human good of persons, upholding their rights, especially the fundamental right to life. Such a society upholds the primacy of human dignity, and, therefore, is a compassionate society, formed by a humane constitutionalism.
Let us dwell for a few moments on the word “compassion”. Both sides have used this word, and it is useful to know what it means. Indeed, Lord Carey of Clifton, quite wrongly in my view, invokes the famous ‘Jesus prayer’ and the Gospel scene of Bartimaeus, saying that God has mercy, eleison, compassion on us, and that compassion requires alleviation of pain, which means permitting assisted suicide.[82] Last year, in the House of Commons, Sir George Howarth argued that it was unchristian to prevent one from exercising one’s free will to commit suicide in extreme pain,[83] and I take the word “unchristian” as meaning, in part, uncompassionate. These arguments are made to counter theological points, but they have direct relevance to the philosophical level of reasoning I am using here. All these arguments are misguided, because compassion does not encompass even a modicum of what these parliamentarians try to cram into it. What then does it mean to be compassionate?
To be compassionate is to “com-passio”, to suffer with, to accompany the other in his suffering such that I enter into it, and sharing it, dispel the darkness of that suffering with the luminosity of love.[84] Thus, when we “com-passio”, suffer with the other, who must, by reason of the suffering be in a position of some weakness in relation to us, we sacrifice our own comfort for the good of the other.[85] Compassion thus demands accompaniment, and accompaniment builds solidarity between persons. Compassion, the sacrificing of personal preferences and comfort to support, for the sake of the truth of our nature as relational beings and thus for the sake of the demands of justice, is necessary to establish a loving society. For, “the capacity to accept suffering for the sake of goodness, truth and justice is an essential criterion of humanity, because if my own well-being and safety are ultimately more important than truth and justice, then the power of the stronger prevails, then violence and untruth reign supreme. Truth and justice must stand above my comfort and physical well-being, or else my life itself becomes a lie”.[86] What we see here is that compassion is the tail side of the coin of a life-affirming society; to support life, and thus to prevent such things as assisted suicide, is to, in the same breath to affirm concrete support for compassion, or else the society is not affirming its own values. Thus, in the scope of our treatment, it is quite right to say that the “true measure of humanity is essentially determined in relationship to suffering and to the sufferer”[87] inasmuch as a humane constitution, whether it exists and how far, is seen in its approach to the most vulnerable. So, the Christian Benedict XVI can say that a society that does not have ““com-passion” is a cruel and unhuman society”.[88] Yet at the same time Lord Ahmad, of a different faith, can also say that because the assisted suicide Bill acts against compassion and life, it “is cruel and regressive”.[89] These are human values that we are dealing with, etched onto our very nature. Unbeliever and believer alike can recognize them.[90] Human dignity demands that the common good be served by the securing of rights, and the fostering of compassion.
- In The Next Instalment In This Series …
It is regrettable that I was not able, this week, to present to you the whole of my thoughts on the debate in the House of Lords and what it means, and says, about the British constitution. You will observe that I have not completed my analysis of the position of Parliament, of public opinion in legislation, nor of the role of individual legislators. In Part 2 which I will publish in the near future, I will begin by resuming our discussion of human dignity, considering it in relation to the virtue of justice in the polis, and law. I will then consider the position of the legislature, public opinion, and the role of legislators regarding what is this, the objective value at the foundation of any legitimate constitution ordered to the common good of its people.
Lacrimae rerum, the stuff of which tears are made is this topic, said the Lord Bishop of Chichester.[91] He is right. I can only hope that my contribution is of some assistance to you in thinking more clearly about the basic, most valuable things at stake here, which go beyond any single individual to our very shared humanity itself, and to the right ordering of our constitution.
[1] Hansard HL Deb. vol. 848 col. 1787, 12 September 2025 (Lord Bishop of London).
[2] Ibid. col. 1866 (Lord Purvis of Tweed).
[3] ibid
[4] ‘Assisted dying: Principles, practice and politics’ (The Policy Institute, King’s College London, October 2024) p. 2
[5] Prof. Bobby Duffy in ‘Assisted dying: two-thirds of public back legalisation within this Parliament, study finds’ (Kings College London, 11 October 2024) <https://www.kcl.ac.uk/news/assisted-dying-two-thirds-of-public-back-legalisation-within-this-parliament-study-finds> (accessed 18 September 2025)
[6] Prof. Gareth Owen, in ibid.
[7] Aristotle, Politics (trans. Ernst Barker and R.F. Stalley, OUP 1995) 108-109
[8] ibid
[9] ibid
[10] Lord Purvis of Tweed (n2).
[11] Aristotle (n7) 109
[12] Hansard vol. 812 col. 1576 (Lord Judge). Funnily enough, Lord Judge refers to Lord Purvis immediately before this memorable formulation of the principle of the sovereign Parliament.
[13] William Blackstone, Commentaries on the Laws of England (Clarendon Press, 1765) 149: “The constituent parts of a parliament are the next objects of our enquiry. And these are, the king’s majesty, sitting there in his royal political capacity, and the three estates of the realm; the lords spiritual, the lords temporal, (who sit, together with, the king, in one house) and the commons, who sit by themselves in another. And the king and these three estates, together, form the great corporation or body politic of the kingdom, of which the king is said to be caput, principium, et finis. For upon their coming together the king meets them, either in person or by representation; without which there can be no beginning of a parliament; and he also has alone the power of dissolving them.”; cf. Re De Keyser’s Royal Hotel [1920] AC 508, 539 (Lord Atkinson) judicially invoking the concept of the estates of the realm. For the source of the expression “caput, principium, et finis” and its application to the King as a constitutive part of Parliament, a quote Blackstone remarkably fails to cite, see Walter Ullmann, ‘This Realm of England is an Empire’ [1979] 30 Journal of Ecclesiastical History 175, 201n110.
[14] William Blackstone, ibid, 157; cf. McCawley v The King [1920] 28 CLR 106, 115-116 laying down the rule of Parliament’s “uncontrolled” legislative power which is in no way overruled by the obiter dicta of Lord Hope in R (Jackson) v Attorney General [2005] UKHL 56 [104], nor, indeed, is it within the purview of the judicial power alone to unilaterally reformulate the constitution.
[15] I deliberately say the King, because he may in extremis withhold assent from legislation, because his legal power to do so is intact, and this would presumably be done to protect democratic principles.
[16] Aristotle (n7) 108
[17] ibid
[18] William Blackstone (n13) 149.
[19] cf. the Rwanda case, R (AAA) v Secretary of State for the Home Department [2023] UKSC 42 [19]-[25], [149]: That whereas rule of international law exist and are binding on the United Kingdom, a certain policy was against such rules, but the Court could, nevertheless, not nullify an Act providing for such a policy. This is a rule of British constitutional law, preventing the judiciary from nullifying any legislative Acts.
[20] Lord Bishop of London (n1)
[21] The relevant Act thus states, regarding abortion, “The Secretary of State must carry out the duties imposed by this section expeditiously, recognising the importance of doing so for protecting the human rights of women in Northern Ireland” (section 9(3), Northern Ireland (Executive Formation etc.) Act 2019, emphasis added). In this vein, see, for example Stella Creasy MP who said in the House of Commons, of abortion in Northern Ireland: “We all recognise that this is a difficult issue for many and that there are strongly held views on all sides of this debate, but one reason the House stood up for the human rights of all women in the United Kingdom was that just because it was difficult did not mean their rights should be denied, and devolution does not absolve us of our responsibility to uphold the human rights of every UK citizen” (Hansard HC Deb. vol.676 col. 1028, 4 June 2020). Thus clearly indicated is the intention to legislate for a particular moral vision which would, depending on the circumstances, create social change in Northern Ireland. This continues her arguments from the previous year that, irrespective of the actual views of the Northern Irish people: “We stand up for the human rights of the people of Northern Ireland to love who they love and to marry who they want, yet when it comes to the human rights of women in Northern Ireland to have control over their bodies, suddenly this place is stuttering” (Hansard HC Deb. vol. 666 col. 405, 16 October 2019). At col. 406, ibid, she continued with rhetoric which one might see as well from an MP as from an activist seeking social change.
[22] Whilst the debate, passim, invokes this, see as a representative example of the pro-assisted suicide position Lord Falconer of Thoroton conflating “dignity and control” (Hansard HL Deb. vol. 848 cols. 1774-1775). I direct the reader to the Lord Bishop of London for, in my view the clearest and boldest formulation of the contrary position at ibid, col. 1787.
[23] Lord Purvis of Tweed (n2) col. 1867.
[24] Hansard HL Deb. vol. 848 cols. 1774-1775 (Lord Falconer of Thoroton), 1788-1789 (Baroness Featherstone).
[25] ibid
[26] Ibid, see for example such phrases as, “loss of dignity and control”, “to die with dignity and at a time of their own choosing”, “to have a death at their own choosing”,
[27] ibid
[28] Ibid col. 1788
[29] cf. Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833 (1992) 851, 980; John Stuart Mill in On Liberty proclaimed therefore that: “Over himself, over his own body and mind, the individual is sovereign” (On Liberty, Utilitarianism and Other Essays (OUP, 1991) 13).
[30] Hansard HL Deb. vol. 848 col. 1988
[31] Casey (n29) 851
[32] Ibid 980
[33] Hansard HL Deb. vol. 848 col. 1988
[34] ibid
[35] Ibid
[36] ibid
[37] For a rigorous and accessible exposition of this in the Anglo-American context, see Adrian Vermeule, Common Good Constitutionalism (Polity 2022).
[38] Aristotle (n7) 10
[39] Aristotle, Nicomachean Ethics (trans. David Ross and Lesley Brown, OUP 2009) 4
[40] cf. Adrian Vermeule (n37) 164-173
[41] cf. Aristotle, Metaphysics (trans. Richard Hope, University of Michigan Press 1952/1966) 3
[42] I say godlike, because the views of Justice Kennedy and Baroness Featherstone placing supreme importance on the will of the individual to choose whatsoever smack of unreality, and, indeed remind me of that sentence in the narrative of Genesis, “ye shall be as gods” (Gen. 3:5), inasmuch as such a view places not only the choice of the good before the individual’s will (which is accepted by everyone), but rather the determination of reality, morality, and everything else besides as I have shown above.
[43] Hansard HL Deb. vol. 848 col. 1789 (Baroness Featherstone)
[44] Ibid col. 1802 (Lord Bishop of Newcastle)
[45] Adrian Vermeule (n37) 170
[46] 535 U.S. 234 (2002)
[47] Ibid 239-240, 258; Adrian Vermeule (n37) 170
[48] Ashcroft, ibid, 236; Adrain Vermeule, ibid, 170-171
[49] Adrian Vermeule, ibid, 171
[50] MAID, an acronym for Medical Assistance in Dying
[51] Adrian Vermelule (n37) 171
[52] ibid
[53] Hansard HL Deb. vol. 848 col. 1802
[54] Ibid, He said: “Within the Judaeo-Christian tradition, the idea of being human begins with God, as my right reverend friend the Bishop of Southwark has asserted—the sense of transcendence that informs personhood. Our obsession with selfhood and individual choice belies our dignity and respect for others. In being human, we begin not so much with selfhood but with the idea of the other and of who we are in the realisation of community and society.
Surely, the moral imperative is to help people live. I recall the words of my Bishop, growing up in the north-east, David Jenkins—words now written on his tomb:
“God is. He is as He is in Jesus. So there is hope”.
It is this that deepens and enriches my vision of life and faith, a vision of hope in humanity shared with those of other faiths and none, which are inextricably bound together. I cannot support the Bill and urge other noble Lords to resist it too.”
[55] I rely here, in general, on Reginald Garrigou-Lagrange OP, ‘The Subordination of the State to the Perfection of the Human Person According to St. Thomas’ in Philosophizing in Faith: Essays on the Beginning and End of Wisdom (trans. Matthew K. Minerd, Cluny Press 2019) 183-203. Considering my own Platonic intellectual bent, the reader should consider that as influencing my presentation of the principles which I and Garrigou-Lagrange agree upon.
[56] Cf. Walter Hilton quoted in Conrad Pepler OP, ‘The Soul as Image’ [1950] 5 Life of the Spirit 14, 19.
[57] Jacques Maritain, ‘The Rights of Man and the Natural Law’ in Christianity and Democracy and The Rights of Man and the Natural Law (Ignatius Press 1986/2011) 112
[58] Reginald Garrigou-Lagrange (n55) 202
[59] Hansard HL Deb. vol. 848 col. 1802 (Lord Bishop of Newcastle)
[60] cf. International Theological Commission, ‘Communion and Stewardship: Human Persons Created in the Image of God’ (2004) paras. [25]-[26]
[61] cf. Ibid [28]
[62] cf. ibid [42]
[63] Hansard HL Deb. vol. 848 cols. 1786 (Lord Bishop of London), 1793 (Lord Bishop of Southwark). That said, at ibid, col. 1802 the Bishop of Newcastle briefly said that “the moral imperative is to help people live” as required by human dignity, and this offers “a vision of hope in humanity shared with those of other faiths and none, which are inextricably bound together”.
[64] cf. Dicastery for the Doctrine of the Faith, Declaration “Dignita Infinitas” on Human Dignity, para. [1]: “Every human person possesses an infinite dignity, inalienably grounded in his or her very being, which prevails in and beyond every circumstance, state, or situation the person may ever encounter. This principle, which is fully recognizable even by reason alone, underlies the primacy of the human person and the protection of human rights.”
[65] Hansard HL Deb. vol 848 col. 1798-1799
[66] Peter Geach, God and the Soul (Routledge & Keegan Paul 1969) 17-29; the essay in that volume which I am referring to here is entitled ‘Immortality’.
[67] St Augustine of Hippo, The City of God, Book I, cap. 24 (The Modern Library 1999) 29
[68] I am developing, in the particular instance of MAID, the argument of Aristotle that “the man who destroys himself […] is treating the state unjustly” (Nicomachean Ethics v, 11 (n39) 100). I am also developing the argument, in that I am applying it to the instance of MAID, of St Thomas Aquinas that “every part, as such, belongs to the whole. Now every man is part of the community, and so, as such, he belongs to the community. Hence by killing himself he injures the community, as the Philosopher declare” (Summa Theologica II-II, q. 64, art. 5, trans. Fathers of the English Province of the Order of Preachers).
[69] Hansard HL Deb. vol 848 col. 1784 (Lord Carlile of Berriew)
[70] St Thomas Aquina (n68) art. 2.
[71] Hansard HL Deb. vol 848 col. 1849 (Lord Weir of Ballyholme)
[72] Ibid col. 1827 (Lord McCrea of Magherafelt and Cookstown)
[73] Ibid, cols. 1792-1793 where the Bishop of Southwark says: “The consumer age in which we now live presents us with technology with built-in obsolescence on a narrowing timescale. It tells us that choice will make us free, but choice itself needs to be examined closely. Instead, humanity acknowledges finitude, which gives our lives meaning, for we are all mortal and each of our lives will in due course come to an end. But in this life, in the words of the general thanksgiving, we give thanks for our creation and preservation and all the blessings of this life. That is not to ignore the imperative of compassion and assistance for those who are suffering. The Christian conviction retains the belief that life is of intrinsic value at all stages. There is never a point at which it may be said that it is not worth it or that life is not worth living.
Assisted dying would dangerously introduce the concept of the limited worth of human life into our medical practice and our relationships. We would be signing up to an essentially consumerist understanding of life, with many potential perils.”
I think the argument above in the main text of this essay shows that even beyond Christianity, it is a truth of natural reason itself that life is of intrinsic value at all stages.
[74] Ibid, col. 2601, 19 September 2025 (Lord Archbishop of York)
[75] ibid
[76] Ibid, col. 1849 (Lord Weir of Ballyholme)
[77] Ibid, cols. 1798-1799
[78] Ibid, col. 1798
[79] Ibid, col. 1799
[80] ibid
[81] ibid
[82] Ibid, col. 2552 (Lord Carey of Clifton).
[83] Hansard HC Deb. vol. 749 col. 7WH, 29 April 2024 (Sir George Howarth)
[84] Benedict XVI, Encyclical Letter Spe Salvi, para. [38]
[85] ibid
[86] ibid
[87] ibid
[88] ibid
[89] Hansard HL Deb. vol. 848, col. 1850 (Lord Ahmad of Wimbledon).
[90] Though whether one who does not acknowledge Eternal Wisdom as the fount of intelligibility and dignity, can coherently acknowledge it, or square it with his unbelieving ideas, is doubtful; nevertheless, atheists such as George Will have recognized and accepted that the natural moral law is an inherent feature of the human person, even as he remained an atheist, and adopted that as a part of his political philosophy: see, to that effect, George F. Will, Statecraft as Soulcraft: What Government Does (Simon and Schuster 1983).
[91] Hansard HL Deb. vol. 848 col. 2521 (Lord Bishop of Chichester)
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