Document Type
Book Chapter
Publication Date
1986
Abstract
A book by Glanville Williams, The Sanctity of Lift and the Criminal Law, 1 once again brought to the fore the controversial topic of euthanasia, more popularly known as 'mercy-killing'. In keeping with the trend of the euthanasia movement over the past generation, \Villiams concentrates his efforts for reform on the voluntary type of euthanasia, for example the cancer victim begging for death, as opposed to the involuntary variety-that is, the case of the congenital idiot, the permanently insane or the senile.
When a legal scholar of Williams's stature joins the ranks of such formidable law thinkers as America's Herbert Wechsler and the late Jerome Michael, and England's Hermann Mannheim in approving voluntary euthanasia at least in certain circumstances, a major exploration of the bases for the euthanasia prohibition seems in order. This need is underscored by the fact that Williams's book arrived on the scene soon after the stir caused by the plea for voluntary euthanasia contained in a book by a brilliant American Anglican clergyman.
The Law on the Books condemns all mercy-killings. That this has a substantial deterrent effect, even its harshest critics admit. Of course, it does not stamp out all mercy-killings, just as murder and rape provisions do not stamp out all murder and rape, but presumably it does impose a substantially greater responsibility on physicians and relatives in a euthanasia situation and turns them away from significantly more doubtful cases than would otherwise be the practice under any proposed euthanasia legislation to date. When a mercykilling occurs, however, The Law in Action is as malleable as The Law on the Books is uncompromising. The high incidence of failures to indict, acquittals, suspended sentences and reprieves lends considerable support to the view that: "If the circumstances are so compelling that the defendant ought to violate the law, then they are compelling enough for the jury to violate their oaths. The law does well to declare these homicides unlawful. It does equally well to put no more than the sanction of an oath in the way of an acquittal."
The complaint has been registered that 'the prospect of a sentimental acquittal cannot be reckoned as a certainty'.4 Of course not. The defendant is not always entitled to a sentimental acquittal. The few American convictions cited for the proposition that the present state of affairs breeds 'inequality' in application may be cited as well for the proposition that it is characterized by elasticity and flexibility. In any event, if inequality of application suffices to damn a particular provision of the criminal law, we might as well tear up all our codes-beginning with the section on chicken-stealing.
The existing law on euthanasia is hardly perfect. But if it is not too good, neither, as I have suggested, is it much worse than the rest of the criminal law. At any rate, the imperfections of existing law are not cured by Williams's proposal. Indeed, I believe adoption of his views would add more difficulties than it would remove.
Publication Information & Recommended Citation
Kamisar, Yale. "Euthanaisa Legislation: Some Non-Religious Objections." In Voluntary Euthanasia: Experts Debate the Right to Die, edited by AB Downing and Barbara Smoker, 110-155. London: Peter Owen, 1986.
Comments
Copyright 1986 Peter Owen. All rights reserved; reproduced with permission.