From protecting life to promoting death

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1. The title is provocative. It is taken from Preface written by Jérôme Trionphe, lawyer of the Parisian forum, to the book Fin de vie by Serge Abad-Gallardo, published in Paris by Téqui in 2018. The title must, however, be explained.

It is not a matter, in fact, of promoting death as a good in itself, but of promoting “law”, rectius to positively put (therefore to “recognize” on a legal level) the “right” to commit death. The “promotion” therefore concerns properly a (deemed) good of the subject, not an objective “thing”, not a res.

The death procured or self-procured would therefore be a “good” as a manifestation and result of another “good”: of the “right” to the absolute self-determination of the subjective will, that is to say of the sovereignty of the subject.

It is not even about the praise of transgression, as it was written. Transgression, as transgression, could indeed be the affirmation of the subject’s will. However, it would mark a “violation” of an order: without the existence of the order (or, at least, of a order) it would be impossible to speak of transgression.

No. The discussion is different and more radical. In fact, it is a matter of recognizing the “right” to dispose of oneself absolutely, without interference from “other” wishes. Which postulates the non-existence of the natural order. Better: it postulates the existence of a natural order as its non-existence. The reversal of the natural order, linked to the creation (or, in any case, simply “given”), of traditional morality (where “traditional” means Jewish-Christian but also classical-pagan), of law as an exercise of duties, is evident and radical.

2. The problem is not of today and is not limited to some cultural regions. This is also demonstrated by a relatively recent collective work (AA. VV., Euthanasia: a right?, Naples, Italian Scientific Editions, 2015).

What today (“today” is a broad temporal category and has meant for at least half a century now) is evident resumption of a strategically organized and tactically conducted campaign for the affirmation of the so-called “right to die” when and how the subject wants.

It is an attempt to affirm the primacy of freedom (properly speaking, of “negative freedom”) over life itself: freedom would be the supreme value which must be formally recognized on the positive juridical level.

Mind you: it is not about responsible freedom, the exercise of free will, the recognition of a natural characteristic of the subject. Rather, it is about freedom as an absolute possibility of doing what you want, free not only from rules but (possibly) also from instinct (which, for animals, is generally passively respected rule).

3. It should be noted that the claim and claim of the absolute self-determination of the subjective will has gone “beyond”.

The cases, for example, of Terri Schiavo in the United States of America and of Eluana Englaro in Italy show that the self-determination of the subject’s will was “recognized” by … power of attorney, of an unusual, astonishing power of attorney (which, legally, power of attorney is not): in the case of Terri Schiavo on the basis of her husband’s request; in the case of Eluana Englaro based on the request of the father / guardian.

Especially in the case of Eluana Englaro we tried – it is true – to prove that the request of the father / guardian corresponded to her will. There remains, however, a strong doubt, since the construction of the presumed actual will of the subject on the basis of declarations issued remotely over time and in circumstances of strong emotion they are not a solid foundation (this – it is good to specify it – would, however, be unsuitable to represent a point of support for a decision in favor of euthanasia) to demonstrate the freedom of the subject and the legitimacy of his decision.

4. The alleged right to absolute self-determination of the subject’s will led to claiming the promotion of death or, in its replacement, compensation for existence, which is economic refreshment for the defined damage to life. Which constitutes a kind of barter (albeit improper), what legally could be called a barter even if in the case de quo one party is sentenced to compensation and, therefore, it is not a contractual party.

Generally the compensation has been recognized or for pregnancy called “unjust” (pregnancy following the failure of a medical intervention required for sterilization or abortion purposes) or for “unjust” birth (birth with malformations of which the doctor did not inform the parents in the pre-natal phase).

Clamor, however, aroused the sentence of the French Court of Cassation (the «Perruche sentence») that recognizes the right not to be born to the malformed born. In fact, the right to compensation to parents was not recognized for lack of information on the status health of the conceived and for the lesion of the “right” to the abortion of the pregnant woman, but it was established that birth itself represented a prejudice, debasing the value of life and the (ontological) dignity of the human person.

The established principle represents a legal revolution, since anyone, even the healthy born child, could claim compensation from birth for both the subjective or family condition in which he came to be and for simply being born. So much so that the French legislator ran for cover establishing that “Nul ne peut se prévaloir d’ préjudice du seul fait de sa naissance” (art L. 114-5,1 ° al Code act. Soc.).

The issue of self-determination in general was explored in a recent international conference held in Bogota in Colombia. In particular in these respects it was considered from a report collected in Chapter II of the volume Self-determination: problemas juridícos y políticos (just released in Madrid at Marcial Pons in 2020 and edited by Miguel Ayuso). Before that, it had been analyzed in its legal and philosophical assumptions in a work by Rudi Di Marco (Self-determination and law, Naples, Italian Scientific Editions, 2017). Here it is not possible to deepen it.

5. The observations made and the foregoing observations show that jurisprudence is much more advanced than legislation. The statement may seem paradoxical. Perhaps also incomprehensible, since the jurisprudence has the task (especially according to the legal doctrines) to offer sentences in compliance with the legislation in force, in absolute compliance with the laws.

Even those who linger to support, accepting the nineteenth-century thesis according to which the judge is the “bouche de la loi”, cannot ignore that, especially in recent decades, the hermeneutic legal theory has imposed itself. According to this theory, the norm, in the final analysis, is not a disposition but the material for building the disposition. The judge – it is claimed – “still says” what the norm prescribes, but the norm is interpreted by him: in the interpretation lies his disposition. Therefore sentences become “constitutive” of the same rules.

Although starting from the same rules, it is possible to arrive at judgments that apply different provisions, posing big problems to the Courts of legitimacy which are also sometimes “fluctuating” as demonstrated, for example, by the advocate recognition of the right to die and the right not to be born. The judgments, in light of this Weltanschauung, are the laws. That is, the law lies in the judgments, not in the norms. Above all on “ethically sensitive” issues, “judges are the ones who dictate laws”, as some attentive observers, not necessarily jurists, say and write openly.

6. The German Constitutional Court recognized the right to assisted suicide in recent months (26 February 2020). The decriminalization of euthanasia through medical assistance of the Assembly of the Republic of Portugal (20 February 2020) has also made headlines, thus “adapting” to Belgium, Luxembourg and the Netherlands.

The proposal for an organic law governing euthanasia, presented in Spain by the Socialist Parliamentary Group in 2019, was also rightly reported. This is a proposal that has not yet been approved. However, it is significant for several reasons. First of all because presented by a parliamentary group that supports the government, of which, in fact, currently expresses the President. It is significant, then and above all, for the reasons explicitly invoked for its approval; reasons that concern general legal issues, relevant for the legitimization of human conduct and for the conception of “subjective law”. We will focus on only two, postponing (possibly) the analysis of the article to a moment after its approval.

The first reason given relates to “social demand”. The proposal, in fact, states that it is necessary to give a “legal” answer to the question that emerges in contemporary (Spanish) society. Textually, the proposal maintains that “the present ley seeks to give a juridical, systematic, equilibrada and guarantor respuesta, to a sustained demand of the sociedad actual como es la eutanasia”.

Therefore, laws must respond to social demands. Not in the sense that they are called to regulate new issues according to law, but in the sense that everything that society asks for (sometimes because it was first practiced) must be recognized in the legal system and by the positive legal system.

The law would not be a rule governing conduct, prescribing and prohibiting, but a rule that “reflects” (passively and valuatively) the behaviors imposed in the costume. This is a schmittian thesis according to which society is a rule for the order (even for the Constitution), not the order (and the Constitution) rule for the society.

In Italy it was accepted and applied by the Constitutional Court back in 1968, when it was called to judge the constitutional legitimacy of art. 559 CP (which punished adultery). With a first sentence (n. 64/1961) the Constitutional Court considered it constitutionally legitimate; with a subsequent sentence (n. 126/1968) declared it constitutionally illegitimate. Based on what motivation? Because – said the Constitutional Court – a “change in social life” had taken place, that is, society had changed, the customs practiced were different. And this only compared to seven years earlier.

This methodology which leads to “reading” the Constitution (the Constitution remained unchanged) in the opposite way, in a radically opposite way, poses a delicate question: Are rights, even those defined as fundamental, really guaranteed? Before that, should they actually be considered rights?.

The second motivation to which we reserve brief attention is represented by the invocation of the purely procedural rule of law, that is, by that state in which nothing can be done against the (positive) law but everything can be done with the law.

In fact, in order to facilitate its approval, the bill we are talking about underlines how it provides for a specific legal regime for the practice of euthanasia, establishing prerequisites for its exercise and modalities for euthanasia. The problem is therefore not whether euthanasia is a right in itself. It becomes such according to the bill of the Spanish Socialist Parliamentary Group if procedures for its exercise are established.

The proposal embraces the (at least superficial) doctrine of the ECHR (European Court of Human Rights). In particular, it expressly refers to the Judgment of this Court of 14 May 2013 (Gross case against Switzerland).

The affirmation of the bill is postulatory de quo, according to which the legalization and regulation of euthanasia rest on the compatibility of essential principles that underpin human rights, implemented by the Spanish Constitution in force, which is the last of the Constitutions “made in series” according to the happy definition of Boris Mirkine Guetzévitch.

It is postulatory because it does not clarify what is meant by law. It makes it clear, it is true: law would be that posed by the positive legal system, without recourse to legal “metaphysics”. In short, subjective law is nothing more than the «facultas agendi» based on the «norm agendi». It would therefore be a faculty recognized to the subject by the rules, the provisions of which must not be subject to analysis and problematic evaluations.

7. The organic law proposal relating to the regulation of euthanasia, filed by the Socialist Parliamentary Group in the Chamber of Deputies of the Kingdom of Spain, therefore welcomes the definition of «subjective right» proper to legal positivistic doctrine. It is proposed, however, to go beyond the old way of understanding the same right. Indeed, it should be neither mere taxation nor a concession of the state.

The state – it is true – is called to recognize it and its recognition is condicio sine qua non of his exercise. The state, however, should limit itself to giving a “legal form” (at least formally juridical) to a subjective claim. Human rights, as historically affirmed, and the old legal positivism would find a synthesis in this way. It is the synthesis sought in Italy by the old Action Party, which proposed the conciliation of liberalism and socialism.

The promotion of death mentioned in the title of this Note is not, therefore, its imposition (as some for polemical reasons mistakenly affirm). At least this isn’t de iure, although it cannot be absolutely ruled out that in some cases it is de facto. What matters for the Legal modernityin fact, it is the promotion of the “negative freedom” of the subject, considered the supreme value of the culture of origin sensu side Protestant.

It is a question to be carefully considered for its consistent ethical consequences and, in particular, for its bio-legal implications.



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