Earlier I wrote about a ruling by the Supreme Court of Canada conscripting Canadian lawyers and judges into the machinery of assisted suicide. I ended with the assessment that lawyers and judges will be litigating and deciding which human beings will be entitled to the protection of the laws against homicide and which are worthy of being killed. Where a doctor is willing to assist a suicide but only if he is exempt from criminal punishment for doing so, the judgments in those cases will be but-for causes of the unjust deaths of the patients killed.
Does this mean that conscientious lawyers and judges in Canada (and Oregon, Washington …) must resign their offices to preserve the integrity of their conscience? I think it depends upon the legal standard adopted to determine who is eligible for the exemption from criminal law.
If the standard vests discretion in the judge to decide who is eligible as a matter of law then it seems to me that both the judge and the lawyers arguing before the judge are complicit in the judgment, and therefore in the killing authorized by the judgment, as a matter of formal cooperation. Any discretionary judgment that this human life is not worthy of life is an intrinsically evil action.
However, most of the legal standards adopted so far seem not to vest such discretion in the judge. Instead, they tend to require (1) a factual finding whether or not the patient’s choice of suicide is voluntary, (2) a medical assessment about the patient’s condition, and (3) evidence that the patient wants to die or subjectively finds his suffering intolerable. Under those standards a judgment of exemption from criminal law, authorizing an assisted suicide, would be determined entirely by the evidence and not by the judge’s own judgment.
This does not mean that it is morally unproblematic to coerce judges to make these decisions. The judgment will still be a but-for cause of the death in many cases. But it does drive another wedge between the moral judgments of conscientious judges and the legal judgments that we require those judges to make.
On a growing number of legal matters, from no-fault divorce and same-sex marriage to assisted suicide, conscientious lawyers and judges — the very ones we should want to serve as lawyers and judges — must separate out their personal judgment from their professional roles. This is not good for the health of our political communities.
Adam J. MacLeod
Adam J. MacLeod is a member of the Maine and Massachusetts (inactive) bars and an Associate Professor at Faulkner University, Jones School of Law. He is the author of “Property and Practical Reason” (Cambridge University Press) and dozens of articles in journals in the United States, United Kingdom, and Australia, many of which can be accessed at his website.
