Living in a Law Transformed: Encounters with the Works of James Boyd White
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[4] It’s Not All About Pretty: Human Rights Adjudication in a Life and Death Situation
It is not easy to convey in a few words the impact that James Boyd White’s Justice as Translation had on me. Ostensibly this is a book about judicial excellence and the quality of judicial opinions, arisen out of a concern for our increased inability to speak intelligently about questions of value: either because the task is perceived as outdated and reliant upon old-fashioned ideals; or because these judgments are seen as matters of taste and subjective preferences, over which no public discourse can be had; or because such issues are viewed as outside the scope of legal scholars aspiring to be scientific. I could, in a few words, explain what White has to say about all these questions and offer a short summary of the book, but none of this will obviously help convey my meaning.
What the book offers—what it asks from (and what it actually happened to) my conception of judicial opinions and myself as a legal scholar—is a transformation; the sort of full torsion of the body of which Plato spoke in the cave. Thus, it is no coincidence that the book begins with a citation of William James, for whom “what is called our ‘experience’ is almost entirely determined by our habits of attention.”[3] Justice as Translation modified my habits of attention and hence my experience—my ways of looking, thinking, feeling, and valuing law.
As a guiding question, White borrows a sentence from John Dewey, another great American pragmatist (and theorist of art, education, and democracy) who said that “democracy begins in conversation.”[4] What if, wonders White, we were to assess judicial opinions as conversations in which democracy begins (or ends)? What would it mean for us as legal scholars, teachers, citizens, or practitioners of law to test law and legal reasoning with this question in mind? How would our own practices of reading and assessing judicial opinions change? What would it mean for us and our object of study to look at the law in this way?
Admittedly, the questions both puzzled and intrigued me. After all, I had been trained in a tradition where judicial opinions stood for a particular rule or outcome, to be assessed by the coherence and consistency of their reasoning. In this way, we learned to abstract the operative principle of judicial opinions and discard the rest as legally irrelevant (i.e., obiter dicta). To be sure, we could criticize an opinion for its lack of coherence and certainty, since these were understood to be common standards of rationality. But judgments of value were to be avoided as detracting from the objectivity, impartiality, and neutrality of legal analysis, and external to a law believed to be unitary, complete, and rounded like a system. All this, to my mind, sounded highly implausible (and I doubt that my teachers really believed it), but it still was presented to me as a regulative ideal, necessary for the advancement of legal science.
What Justice as Translation proposes is a clean break, for:
In every opinion, a court not only resolves a particular dispute one way or another, it validates or authorizes one form of life—one kind of reasoning, one kind of response to argument, one way of looking at the world and its own authority—or another. Whether or not the process is conscious, the judge seeks to persuade her reader not only to the rightness of the result reached and the propriety of the analysis used, but to her understanding of what the judge—and the law, the lawyer, and the citizen—are and should be, in short, to her conception of the kind of conversation that does and should constitute us.[5]
When we turn to a judicial opinion, then, we can ask not only how we evaluate its ‘result’ but, more importantly, how and what makes that result to mean, not only for the parties in that case, and for the contemporary public, but for the future: for each case is an invitation to lawyers and judges to talk one way rather than another, to constitute themselves in language one way rather than another, to give one kind of meaning rather than another to what they do, and this invitation can itself be analyzed and judged. Is this an invitation to a conversation in which democracy begins (or flourishes)? Or to one in which it ends?[6]
Such a way of looking at the work of judges is not just different or new, but transformative of the old, in the sense that it calls upon us to open up our senses toward a full range of aesthetic, ethical, and political dimensions entailed by every judicial opinion. White’s rich and rewarding practice of close reading is not circumscribed to the operative part of the decision, but takes the judicial opinion as a compositional whole, as one would approach a piece of music, a painting, or a poem.[7] In doing so, the reading becomes richer and more probing than the mere exposition of the court’s reasoning—and critique of “weaknesses.” This equally differs from a kind of hyperrealism that reduces the opinion to an epiphenomenon or façade. In White’s view, the political and ethical dimensions of an opinion are not “hiding beyond the appearances of language,” but are rather imprinted in, or, more accurately, enacted by it—including its silences and omissions. What White offers is not a “method” that one could mechanically follow, but a series of recurring questions through which we might arrive at our own judgments, which are always language-bound and culture-specific. To read judicial opinions in this way is hence not to aspire to an ultimate position of neutrality on matters of value, but to be ready to make judgments (however tentative and partial) about the most important aspects of our lives as individuals and as members of a polity.
Not everyone can be expected to share my experience with the book, which I will not try to defend here.[8] What the critics demand instead, and I hope to do in what follows, is to show the possibilities it affords in a real context, here, the adjudicatory practices of the European Court of Human Rights (hereinafter the ECtHR or the court). The case I have chosen concerns Mrs Dianne Pretty, at the time of the proceedings, a 43-year-old woman suffering from an irreversible neuro-degenerative disease, who had unsuccessfully pleaded to obtain dispensation from the UK law banning assisted suicide.[9] After seeking in vain to obtain prosecutorial immunity for her husband to assist in her death, and failing to win her case also before the House of Lords,[10] she applied to the ECtHR to find a violation in her rights under the European Convention of Human Rights (hereinafter the convention).
Pretty v UK begins with a brief explanation of the procedure and circumstances of the case, followed by a long citation of the opinion of the House of Lords—a lengthy judgment delivered by Lord Bingham—as well as other voices and arguments.[11] In turn, Lord Bingham is also obliged to interpret the convention and engage directly with the court’s jurisprudence, because the applicant relied directly upon the convention. It may be tempting to say that these voices are in dialogue with each other, but this is both to say too little and too much. It is too little, because unless we describe more precisely the kind of dialogue they are engaged in, a general appeal to “dialogue” is too vague and risks being fetishized (after all, not all dialogues are based on mutual respect and can turn into “dialogues of the deaf”). It is too much, insofar as the risk here is to elide the inevitable tensions, frictions, and misunderstandings of the real conversation. This is why we need a more nuanced approach to the rich polyphony of voices that constitute the opinion—an advice that I take from Desmond Manderson’s recent book[12]—since the relationships established in and by the decision are the best indication of whether this is an opinion in which democracy begins, or not.
Rather than as a logical chain of legal propositions, then, I would like to explore this opinion as a text where the drama of life and death unfolds.[13] The case is obviously dramatic and thus a good candidate to test the profundity (or lack thereof ) of what critics often dismiss as simple matters of “style”—hence the play of words, not meant as frivolous, in my title. Further, the opinion can also be taken as exemplary of the kind of human rights adjudication proper to the ECtHR, not as a forum of principle, or as balancing of interests as it is generally understood,[14] but rather as an institutionally entangled, nonhierarchical form of judgment, where democracy is being defined, as well as enacted, through the intertwining of its many voices. Therefore, in translating White’s way of reading into a different context, I aim to go beyond showing its suitability as a general method of analysis, wishing further to reveal something distinctive about human rights adjudication in the context of the European Convention of Human Rights.
Constructing the Judicial Authority: Defining the Judicial Ethos
Lord Bingham, who delivers the leading opinion of the House of Lords,[15] begins in this remarkable fashion:
No one of ordinary sensitivity could be unmoved by the frightening ordeal which faces Mrs. Dianne Pretty, the appellant. She suffers from motor neuron disease, a progressive degenerative illness from which she has no hope of recovery. She has only a short time to live and faces the prospect of a humiliating and distressing death. She is mentally alert and would like to be able to take steps to bring her life to a peaceful end at a time of her choosing. But her physical incapacity is now such that she can no longer, without help, take her own life. With the support of her family, she wishes to enlist the help of her husband to that end. He himself is willing to give such help, but only if he can be sure that he will not be prosecuted under section 2(1) of the Suicide act 1961 for aiding and abetting suicide. [...] Mrs. Pretty claims that she has a right to her husband’s assistance in committing suicide and that section 2 of the 1961 Act ... is incompatible with the European Convention of Human Rights.[16]
The paragraph is notable in exposing the emotional undertones of the case and eliciting a human reaction of sympathy. The death awaiting Mrs. Pretty is described as humiliating and distressing, opposed to the peaceful end at the time of her choosing. Her physical strains are opposed to her mental alertness; her own incapacity, to her husband’s willingness to provide the assistance she needs. Her decision is no mere impulse or avoidance, but comes after reflection and with the support of her family. In this setting, the threat of criminal sanction appears as an obstacle standing between the individual and her wishes. Shouldn’t the European Convention of Human Rights protect her?
And yet, if asked to imagine how the argument might continue, few would be surprised to learn that, Mrs. Pretty’s personal situation notwithstanding, the conclusion is that the UK law is not in breach of the convention when denying her petition. In effect, after the passage quoted, Lord Bingham begins immediately to take distance and to clarify that “[t]he committee is not a legislative body. Nor is entitled or fitted to act as a moral or ethical arbiter.”[17] Hoping to turn a potentially endless debate into a manageable discussion, Lord Bingham distinguishes the “legal” from the myriad ethical and moral considerations surrounding the issue of euthanasia, for these are “questions on which widely differing beliefs and views are held, often strongly.”[18] As defined by him, “[t]he task of the committee ... is not to weigh or evaluate or reflect those beliefs and views or give effect to its own, but to ascertain and apply the law of the land as it is now understood to be.”[19] The rest of the opinion is a demonstration of this twofold “understanding”; namely, what it means to understand the law and how one can say to have understood it—which compels him to adopt the impersonal voice (i.e., “understood to be”).
Lord Bingham invites us to a specific kind of discourse. He is implicitly telling us: “what you are about to observe is how legal argument is supposed to work, which has its own forms of procedures and operations. For it to function properly, some of the arguments must be left out, which gives us a better chance of success.” In his mind, judges, as the rest of human beings, are imbued with ordinary sensitivity, beliefs, and emotions, but as judges, they ought not to be “moved” by them. The implication is hard to miss: whereas common sentiment would naturally tend to empathize with the plight of Mrs. Pretty, the case at hand requires him to “resist” this proclivity.
This raises an interesting question, for, if the point was at all times to reach the conclusion, why does Lord Bingham begin with so charged emotional language? In other words, what exactly is the role of the first paragraph in Lord Bingham opinion? Is it a polite manner of getting her out of the way in order to arrive to what really matters? Should we then dismiss his words as irrelevant, or, worse, cynical? One way White would invite us to inquire further about this question is to ask what would happen if the paragraph had been omitted; that is, how would the opinion be read differently if nothing had been said about Mrs. Pretty’s predicament. Surely in that case, Lord Bingham could have been perceived as lacking the human warmth necessary for the application of law, which obviously does not exclude a self-serving rhetoric. But whether the judge really means it or not, the paragraph brings the central issue into focus: whatever else is true about it, we are reminded that this is not a hypothetical debate on abstract rules and principles, but one which has real implications on the life of Mrs Pretty and her closest relatives.
Having defined his role and authority, Lord Bingham goes on to analyze each of the separate articles of the convention, articles 2 (right to life), 3 (prohibition of degrading or inhuman treatment), 8 (protection of private and family life), 9 (freedom of expression), and 14 (prohibition of discrimination). In each of these articles, the arguments on behalf of the applicant are the best he can think of, and yet the answer of the House of Lords is invariably negative, defending his opinion that the convention does not grant the right to die, and that, in any case, the law that criminalizes assisted suicide is not in breach of the convention. For reasons of space, I will center on articles 2 and 8—the former because it shows the style of reasoning of Lord Bingham, and the latter because it is the only point of disagreement between the English and the European judges.
The Erotics of Conceptual Talk
The relevant sections of article 2 of the ECHR state:
- Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law. [20]
- Deprivation of life shall not be regarded as inflicted in contravention of this Article when it results from the use of force which is no more than absolutely necessary: (a) in defense of any person from unlawful violence, (b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained, (c) in action lawfully taken for the purpose of quelling a riot or insurrection.
Article 2 presents not a few interpretive dilemmas: How to interpret the fact that it uses the language of property (“to be deprived of”) and is addressed mainly against the state? Does this mean that individuals are “owners” of their own lives and may decide to forgo their “title”?[21] To what extent do the exceptions of section 2 affect the interpretation of the article?
On behalf of Mrs. Pretty counsel submits that article 2 protects not life itself, but the right to life. The purpose is therefore to protect individuals from third parties (the state and public authorities). Further, it recognizes that it is for the individual to choose whether or not to live and so protects the individual’s right to self-determination. Accordingly, a person may refuse life-saving or life-prolonging medical treatment, and may lawfully choose to commit suicide. The right to die is hence not the antithesis of the right to life but its natural corollary, and the state has a positive obligation to protect both.
It is difficult to imagine a better argued case for the applicant. In these brief lines, counsel for Mrs. Pretty offers a compelling reinterpretation of the scope and core protected value of article 2, and, drawing from the fact that individuals may lawfully choose suicide and also refuse life-prolonging treatments, concludes that the right to die must naturally follow.
How does Lord Bingham respond to the challenge? After declaring that the starting point must be the language of the article, he states that “the thrust of this is to reflect on the sanctity which, particularly in Western eyes, attaches to life.” In his view, “[a]n Article with that effect cannot be interpreted as conferring a right to die or to enlist the aid of another in bringing about one”s own death.”[22] Lord Bingham acknowledges that some convention rights confer both positive and negative aspects (e.g., freedom of expression, freedom of religion...), but other rights cannot be said to confer a right to do the opposite of what they are intended to protect (e.g., the prohibition of slavery, the prohibition of torture and inhuman or degrading treatment) and he takes the right to life to belong to the latter category.
Lord Bingham further points out that no convention authority supports Mrs. Pretty’s contention. He cites extensively from the case of Osman v United Kingdom (1998),[23] the case of a stalker who ended up killing two people, where the court affirmed the positive obligations of the state to adopt reasonable measures to protect life. Lord Bingham acknowledges that this case is very different, since the victims of that crime did not have any wish to die, but the approach was entirely consistent with his own. He also cites two other cases (X v Germany[24] and Keenan v United Kingdom[25]) where prison authorities were under the duty to protect people under their care. Once again, Lord Bingham acknowledges the limits of the analogy, since Mrs. Pretty is not incarcerated, but this does not entail that the state would have a duty to recognize her right to die.
Finally, Lord Bingham presents Mrs. Pretty’s claim as inconsistent with two distinctions of English law, which are not a simple matter of “semantics”[26]: first, between the taking of life by oneself or doing so with the help of another; second, between the cessation of life-prolonging treatment and those other actions intended solely to terminate life. In sum, he concludes that Mrs. Pretty has failed to establish that the UK is in breach of the convention.
Lord Bingham’s style of reasoning is highly abstract and analytical, driven by the apparent desire to exhaust all possibilities: to this end he browses precedents and discerns their implications, provides analogies while acknowledging their limits, and borrows from the conceptual tools afforded by his legal tradition. All this confers upon his conclusion certain flair of inevitability. To paraphrase what White writes in another context, in Lord Bingham we find a “mind of great fastidiousness and care” that has gone over virtually all applicable materials, only to decide that they are not helpful to Mrs. Pretty.[27]
However, even though Lord Bingham declares that “the starting point must be the language of the Article”, he proceeds as if the language could be pierced in order to reach the reality behind it, the absolute and unqualified “sanctity which, particularly in Western eyes, attaches to life”.[28] Lord Bingham does not explain what this sanctity entails (nor why it is more significant in the West than in other parts of the world), but everything else follows from it. The sanctity of life works in this way as a conclusory and inarticulate premise that presupposes already that which is the task of the analysis to demonstrate, namely, whether (or not) the Mrs. Pretty has a right to forego her life without fear of criminal sanctions.
Lord Bingham places his reliance on a concept beyond language, an extralinguistic reality called “life” that it is the duty of the state to protect, but no such “concept” can be derived from a reading of article 2, which originally permitted the death penalty, which relies on the language of property to refer to life, and which provides a series of exceptions in which life can be lawfully taken. The same can be said about the common law distinctions which are said to exist “beyond semantics.” The use of precedents can also be questioned, since none of the people in them had properly a desire to die;[29] and the state’s duty to protect life is curbed precisely by the respect for human dignity and freedom.[30] In truth, Lord Bingham disregards the language of article 2, relying instead on his preconceived notion of its “sanctity,” nowhere defined, nor clarified, and which ironically debases life to a bare biological function unaffected by the meaning individuals attribute to it.[31]
To be sure, Lord Bingham’s logic has undeniable appeal. Consider this: If you were to oppose Lord Bingham, you would have to work as hard as he works himself, mounting the herculean task he undertakes, running through all the precedents and carefully sorting them out, in the hope of offering a more cogent, alternative interpretation. But not even then could you be sure to persuade Lord Bingham. One is left with the impression that his mind is made up. Such is the belief in the power of his analytical skills, his confidence in having understood and mastered all the relevant materials, and to have come to the correct conclusion: that there are no circumstances, exceptional as they might be, in which he might consider a different outcome—save explicit change in the legislation.
As a result, even though Lord Bingham concedes at various moments that he might be wrong in his analysis, there is little room for real disagreement in it. His reasoning aims to impose itself even upon those who would disagree as to the merits, enacting a form of “coercive logic” that seeks to defeat the opponent.[32] Arguably, the ethical and political community enacted in his writing is not democratic or dialogical in character, but rather monological and authoritarian, subject to a logic that demands submission. If asked about the conversation he invites for the future, Lord Bingham closes off all avenues for an alternative interpretation of article 2.
Who is Speaking?
This conclusion becomes apparent when we pause on the manner in which this voice resonates with the European court. After a brief reminder of its jurisprudence—which enjoins the state not only to refrain from the intentional and unlawful taking of life, but also to take appropriate steps to safeguard the lives of those within its jurisdiction—the court is “not persuaded that the right to life involves a negative aspect.”[33] Unlike other articles of the convention that imply some measure of choice in their exercise (e.g., the freedom of association), “Article 2 of the Convention is phrased in different terms” and “it is unconcerned with issues to do with the quality of living or what a person chooses to do with his or her life.”[34] As a result, “Article 2 cannot, without a distortion of language, be interpreted as conferring the diametrically opposite right, namely a right to die; nor can it create a right to self-determination in the sense of conferring on an individual the entitlement to choose death rather than life.”[35]
Hearing this language, one does not have the impression that the court is grappling with a case of high moral stakes; one that deserves the closest attention by an international court. There is no issue of real complexity, no real debate over which people might disagree, often profoundly. There seems to be, in fact, no real decision: the court speaks as if the case were easy and uncomplicated, a mere application of language imagined to be transparent and in need of no interpretation. This clear and unambiguous language determines that the right claimed by Mrs. Pretty is a mere “distortion,” “diametrically opposite” to the right to life.
When we consider the way that Lord Bingham’s voice features in the opinion of the European Court, we find that it appears not as the enriching voice of diversity, but as a colonizing force that supplants the independent analysis of the court. Lord Bingham does not mean his interpretation to be exhaustive, or even preferred, but merely not incompatible with the approach of the court. The danger is that, once the European Court confers upon it its own mantle of authority, a reading that is merely suggestive turns into the authoritative meaning of article 2.
Therefore, even though the European Court brings in and engages with Lord Bingham’s different voice, there is no real dialogue between the two: nothing that would offer an occasion for contrast; for mutual adjustments, for disagreement. Instead what we find is a form of legal ventriloquism, where the House of Lords is allowed to speak and think for the European Court of Human Rights. To the extent that the European Court does not enrich but rather impoverishes the conversation around the right to life, this is not an opinion in which democracy begins.
Finding a Voice among Many: An Entangled World
The conclusions have to be qualified in light of article 8, concerning the protection of private and family life. As if it had suddenly recovered its voice, the court makes a startling departure from precedent and assures that, even though “no previous case has established as such any right to self-determination, the notion of personal autonomy is an important principle underlying the interpretation of its guarantees,” which extends to behavior perceived to be harmful, dangerous, or even of life-threatening.[36] In this case, the applicant “wishes to mitigate that suffering by exercising a choice to end her life with the assistance of her husband,” but “is prevented by law from exercising her choice to avoid what she considers will be an undignified and distressing end to her life.” Thus, having stated that “the very essence of the Convention is respect for human dignity and human freedom,”[37] “the Court is not prepared to exclude that this constitutes an interference with her right to respect for private life as guaranteed under Article 8 § 1 of the Convention.”[38]
The conclusion seems radically to shift from the abstract language of conceptual clarity, to the perspective of the individual who is facing what she considers an undignified and distressing end. This opens up a different kind of dialogue, a different political philosophy in fact, where the state’s duty to protect finds a limit in the principles of human dignity and personal freedom of individuals. These principles carve out a space for self-determination where what matters is not the content of choice (whether individuals decide to die rather than to live), but that individuals are able to make and define their own life-choices. The court’s language enacts a pluralist society where people are expected to choose different ends, not all compatible with the public “perception of the good.”
In order to understand this considerable transformation and, indeed, to understand it as part and parcel of the same judicial opinion, it is necessary to attend to the rich dialogue of voices around article 8, first, with respect to the applicability and interference of the right of private life (8 § 1) and, then, regarding the possible justification of the state interference (8 § 2). This brings us back to Lord Bingham, for whom the answer is uncomplicated. Simply put, the right to private life is not engaged at all because the alleged choice of the applicant would extinguish the very benefit which article 8 supposedly protects; even if it were engaged, he surmises, the interference would at any rate be justified.
It must be Lord Bingham’s commendable commitment to the legal process that compels him, before reaching the conclusion, to examine “the most detailed and erudite discussion”[39] known to him on the topic, the case of the Canadian Supreme Court in Rodriguez v Attorney General of Canada.[40] In this way, we are introduced to yet another group of voices that speak from their own jurisdictional context. The main debate concerns section 7 of the Canadian Charter of Rights and Freedoms, which ensures that no one shall be deprived of the rights of life, liberty, and security “except in accordance with the principles of fundamental justice.” Writing for the majority, Justice Sopinka considered that personal autonomy was engaged, for the applicant’s problems were due to governmental action and not to her physical disabilities. Consequently, it was necessary to determine whether there had been any deprivation thereof that was not in accordance with the principles of fundamental justice. His conclusion was that “given the concerns about abuse ... and the great difficulty in creating appropriate safeguards ... it cannot be said that the blanket prohibition on assisted suicide is arbitrary or unfair.”[41] In arguing so, Sopinka relied on a substantial consensus among Western countries and assured that attempts to fine-tune this approach by creating exceptions tended to support the theory of the “slippery slope.”[42]
It is noteworthy that Lord Bingham includes also the dissent of J. McLachlin, according to whom “Parliament has put into force a legislative scheme which does not bar suicide, but criminalizes the act of assisting suicide. The effect of this is to deny to some people the choice of ending their lives solely because they are physically unable to do so.” Consequently, “it does not accord with the principles of fundamental justice that [the applicant] be disallowed what is available to others merely because it is possible that other people, at some other time, may suffer, not what she seeks, but an act of killing without true consent.”[43]
The extraordinary thing about this whole citation is that for Lord Bingham the Canadian precedent is not even relevant, for the Canadian judges rely on a provision with no close analogy in the European Convention that protects only privacy. In his view, privacy can only extend to the protection of personal autonomy while individuals are living their lives, but not to the choice to live no longer. This suggests that Lord Bingham sees himself immersed already in a dialogue he anticipates with the European Court, and is responding to their potential disparity of criterion, aiming to fill the spaces of dissent even before they open up.
Additionally, the inclusion of these voices provides him with the opportunity to editorialize—that is, to shape and channel the way the European Court will read and interpret the case. Thus, even though Mrs. Pretty places reliance on the dissent, Lord Bingham reminds his audience that “a majority of the court regarded that right as outweighed on the facts by the principles of fundamental justice.”[44] Obviously, he has confidence in his own power to steer and command an interpretation, hoping that, beyond small discrepancies, the reviewing organ will accept the interpretation he is proposing.
The Exuberances of Citation
White suggests that every citation can be a source of “exuberances”;[45] namely, an uncontrollable supplement of meaning that overflows the attempts fully to contain it. Indeed, once the judges of the Canadian Supreme Court are willing to extend the protection of autonomy to the decision of life and death, Lord Bingham’s insistence on denying that private life is at all engaged appears somewhat artificial, considering the similar structure of both Documents. The European Court does not abide by Lord Bingham’s formalism and assumes that, even though the Canadian provision is framed in different terms, “comparable concerns” arose in both cases.[46] Without dodging the issue under technicalities, the Court seems willing and ready to engage with the central issue of the case.
Likewise the European Court cites approvingly the concurring opinion of Lord Hope of the House of Lords, who thinks that “the way she [Mrs. Pretty] chooses to pass the closing moments of her life is part of the act of living, and she has a right to ask that this too must be respected.”[47] Suddenly, an opinion other than Lord Bingham’s is being heard, showing that he is not the only voice within the House of Lords and that he actually has less than its full authority.
With the support of the Canadian judges and Lord Hope, the ECtHR comes out of its earlier ventriloquism to engage now in proper institutional dialogue with the other participants. Thus, for the first time, we hear the distinctive voice of the European Court confronting the convention in its own right, exercising the power to read and explain its own jurisprudence, where the absence of prior explicit language of self-determination is no obstacle to understand it as implicit interpretive principle. In this light, the court reads its own case law concerning the refusal to certain medical treatments as indication that private life is interfered with, even when it leads to inevitable death.
They see this situation as analogous to Mrs. Pretty’s, who wishes to exercise a choice to end her life. As stated by Lord Hope, this choice is not external to life, but belongs in the kind of decisions human beings face in the course of living, and the least one can expect from others (particularly from the state) is a measure of respect. This is furthermore consistent with the core values of the convention, the very “essence” of which, they say, is the respect for human dignity and freedom. In this way, Mrs. Pretty’s choice itself is dignified, enabling her to preserve some sense of dignity during and for her life.
Mrs. Pretty’s decision is made more comprehensible still by placing it in the context of modern medicine. As the court writes, “in an era of growing medical sophistication combined with longer life expectancies, many people are concerned that they should not be forced to linger on in old age in states of advanced physical or mental decrepitude which conflict with strongly held ideas of self and personal identity.”[48] The thought of “forcefully” “lingering on” in “decrepitude” is unlikely to be desired by or to anyone; indeed, it is far more likely to be found amongst the deepest fears of “many people.” Mrs. Pretty’s predicament, as her choice earlier, is turned communal: a situation that can affect us all.
With this the court arrives to the heart of the matter, which is the threat of criminal sanctions standing between Mrs. Pretty and her decision. As the court sees it, “the applicant in this case is prevented by law from exercising her choice to avoid what she considers will be an undignified and distressing end of her life,” in alignment with the individual perspective that Lord Bingham was at pains to discount. And hence, naturally, “the Court is not prepared to exclude that this constitutes an interference with her right to respect for private life.”[49]
The Court as a Language-Maker: A Self-Reflexive Jurisprudence
The second and final stage of the argument must examine whether the interference can be justified under the requirements of article 8 § 2.[50] What is discussed is not the legitimacy of laws prohibiting assisted suicide. The issue is whether the 1961 act, in failing to allow exceptions for a case like Mrs. Pretty’s, and adopting instead a blanket ban irrespective of circumstances, violates the necessary proportionality of the law.[51] Lord Bingham calls the argument “beguiling,” but cites the authority of Dr. Samuel Johnson, who argued that “laws are not made for particular cases but for men in general,” and that “to permit a law to be modified at discretion is to leave the community without law.”[52] Lord Bingham opposes the “seductive” nature of Mrs. Pretty’s arguments to the “sobriety” of law, tying himself to the mast of its bonds and strictures.
And yet his commitment to the sobering rule of law does not prevent him from displaying an alternative, sentimental scenario: “It is not hard to imagine that an elderly person, in the absence of any pressure, might opt for a premature end to life if that were available, not from a desire to die or willingness to stop living, but from a desire to stop being a burden to others.”[53] To Mrs. Pretty’s concrete situation, an imaginary, non-adjudicated case is opposed which has nothing to do with her different predicament.
To be sure, there may still exist valid reasons to maintain the protections afforded by the law, which is why the European Court is on the horns of dilemma. Here we encounter one of the aporias identified by Jacques Derrida: a tension between doing justice to the individual case and preserving the generality of law.[54] Whereas Lord Bingham simply ignores the aporia by subsuming the individual under the general, a court of human rights requires additional arguments to confront it, for it cannot rely on an abstract generality to deny justice to the individual case.
The ECtHR begins with an interesting avowal:
It is true that it is not this Court’s role ... to issue opinions in the abstract but to apply the Convention to the concrete facts of the individual case. However, judgments issued in individual cases establish precedents ... and a decision in this case could not, either in theory or practice, be framed in such a way as to prevent application in later cases.[55]
In a revealing exercise of self-reflexivity, the court sees its own opinions as modeling the conversations to be had in the future, where law is not something external to the court’s activity, but the very language the court now creates. The positionality of the court vis-à-vis the law changes: whereas Lord Bingham positioned himself as an observer of a law that exists independently of his “understanding” of it, here the court becomes an active participant in the making of law.
Paradoxically, the court’s acknowledgment of being a maker of law is accompanied by resolve to make no active practical contribution in the present. Worried that words uttered on behalf of Mrs. Pretty can eventually be “misquoted,” the ECtHR decides to quieten its voice lest such words be used for less deserving cases. In my view, this evinces mistrust rather than prudence and restraint: the court does not put faith in other actors being able to sort out complications as they arise in future cases, which does not call into being a community of readers with the skills and capacities that the court claims for itself. As a result, the court fails to resolve the case as the case would require if considered on its own, and the apparent desire to deliver justice to Mrs. Pretty is silenced.
Finally, the European Court subjects the UK system to scrutiny in terms of proportionality. It observes that between 1981 and 1992, in twenty cases where “mercy killing” was an issue, there was only one conviction for murder and another for life imprisonment, while lesser offences were substituted in others, and most resulted in probation or suspended sentences. In light of this, the court concludes that it does not appear arbitrary to prohibit assisted suicide, while providing for a system of enforcement and adjudication that allows due regard to be given to the circumstances in each particular case.[56]
There might be different ways to read this. On the one hand, it appears that the court is more comfortable with an ensuing control of administrative practices, than with a prior assessment of the legislation, which gives wider latitude to the authorities than might be otherwise desirable. On the other hand, one welcomes the fact that the court is willing to scrutinize not only the law-in-the-books, but also how the law has been implemented in practice.[57] Admittedly, this apparent attention to law-in-action does not modify the situation of Mrs. Pretty, who is not afforded legal protection (a cynical reader may even wonder whether the court is inviting Mrs. Pretty and her husband to “try their luck” with the system). But it is also possible, if I were to impersonate the court, to read an implicit warning of the kind: “Do not think that because we find no violation in this case we will never do so, for instance, if criminal sanctions are excessive, if ‘mercy killing’ is treated exactly as murder, if there is no possibility of tempering the punishment, or to take account other exigent circumstances.” Even if the court tries to restrict its current ruling, different actors in different contexts will inevitably expand its future meaning.
The Shape an Opinion Makes: Many-Voicedness and Human Rights Adjudication
So where does the meaning of this opinion reside? As White time and again has repeated, the meaning of the opinion lies not in its result, but in what that result is made to mean, in the interactions and conversation it establishes—with and between the parties, with other institutional actors, among the various voices in and of the opinion, with the society at large—and in the ethical and political community it enacts and makes possible for its readers.[58]
Once we turn away from the concrete result and begin to listen more closely to the music that the opinion makes, we find that a rich polyphony of voices emerges. This polyphony constitutes the life-form of the decision. To listen to these voices is required, in fact, even to understand the more “technical” aspects of the decision: one would search in vain to find the meaning of article 2 by reading what the court says about it in this case, if one did not also seek to hear Lord Bingham’s reading of the same Article, and if one did not attempt to contrasting both voices with what the court says in regards Article 8. Thus, there are important aspects of the decision raised by voices other than the European Court. For example, Lord Hope and the Canadian Supreme Court awake the ECtHR from its previous stupor in order to confront its own jurisprudence and role as a court of human rights.
An opinion is thus a complex web of interconnected narratives that respond, enrich, undermine, and dissent from one another. The meaning lies in the interaction of all these voices, in their mutual responses, and also in their silences, in the arguments they do not answer and are let to stand, unaddressed. These voices are often in tension with each other and, sometimes, also with themselves, as for example the court’s disparate readings of articles 2 and 8, and the tensions between the first and second sections of this article. Here’s where White’s judicial many-voicedness—the art of writing “two ways at once”—meets Bakhtin’s heteroglossia.[59] To analyze the opinion in terms of its many voices makes us more receptive to its changes of tone and modulations, to its shifts and transformations, to its ambiguities and contradictions, to its possibilities of being, and of being otherwise.
This focal point enables us to contrast a particular voice against the framework within which it operates. For example, we can assess how the jurisprudence of the ECtHR figures in Lord Bingham’s opinion and, vice versa, how Lord Bingham’s voice appears in the court’s, first as the leading voice, and then suddenly as one among many, having less than full authority of the House. Likewise the Canadian case features differently in Lord Bingham’s and the court’s respective narratives: in the former’s it is a case from which one can gain erudition and sophistication, but one that is not relevant in the end; in the latter’s it is a case to rely on through analogical thinking, for the concerns are substantially comparable.
To read the judicial opinion in this way is not to wish to dilute all political concerns into matters of “style”; rather, it is to treat those matters as deeply embedded in ethical and political commitments. For example, Lord Bingham’s exhaustive, professional talk privileging conceptual clarity discloses a monological and authoritarian bent that ignores the individual and the singularity of the case. In contrast, the anti-formalism of the court allows it to confront the substantive issue without hiding behind conceptual abstractions. Each voice validates a different conversation, and hence a different future, for the law.
Finally, we might also better comprehend the institutional entanglements in which the court participates, and the position of the court vis-à-vis other institutional actors, individual citizens, social organizations, third-party interveners, legal communities, and societies at large. In this setting, the jurisdictional task of the court and of human rights adjudication is to be understood not in terms of competing principles, or a balance of interests, but rather as a negotiation of institutionally entangled, deeply contextual, judgments. The court must negotiate its interpretation of rights with interpretations spoken by other voices, and assess also the societal impact of its decision, while inquiring self-reflexively about its role as a maker of legal language with a wide area of influence. This may partially explain why the European Court finds itself unable to follow through with its apparent desire to deliver justice to Mrs. Pretty and chooses instead to legitimize the domestic practices.
What the Text Leaves Out
White has often reminded us that there is always something that every text “leaves out,” which is why we must be vigilant in choosing our texts. However, he has also shown us that, occasionally, a text is able to create the conditions to transcend its own limitations. To conclude, I would like to locate this possibility not outside, but deep inside the opinion, embodied in the powerful minority dissent written by Justice McLachlin in the Rodriguez case. According to the dissent, the effect of a “legislative scheme which does not bar suicide, but criminalizes the act of assisting suicide ... is to deny to some people the choice of ending their lives solely because they are physically unable to do so.” Nor it does accord “with the principles of fundamental justice that [the applicant] be disallowed what is available to others merely because it is possible that other people ... may suffer, not what she seeks, but an act of killing without true consent.”[60]
As we have seen, Lord Bingham tries to submit the dissent to the logic of majorities and minorities, but he proves incapable of restraining it: once the force of the argument has been heard, it cannot be unheard. The minority dissent points to the fact that this case is different to all the others considered by Lord Bingham in at least two respects: in none of the others did the applicant seek voluntarily to die, and in the present case the law is discriminating against Mrs. Pretty on account of her physical disability. Accordingly, Mrs. Pretty’s case is to be treated as those who commit suicide voluntarily, and not as those who, vulnerable or not, do not give their consent to it. The dissent introduces a wedge into the watertight logic of Lord Bingham and protests against the assumed generality and equal application of the law.
The example of the Canadian dissent pushes the European Court to engage with a societal reality beyond the strict boundaries of the 1961 act and to demand that the reasons for criminalizing assisted suicide be less “general” and more “specific.” (Rather than defend the abstract generality of law, the court tries to assess the concrete proportionality of the law as currently implemented in the UK.) However, the court still finds itself unable to grant relief to Mrs. Pretty, for fear that this will open the door to unwanted claims in the future. In this way, the dissent confronts the court with the limits of its own language, beyond which they do not dare to speak. And yet the dissent turns the abstract issue of the right to die into the different one of discrimination, where the state action is itself promoting it. (As White would stress, a person need not accept that there is an absolute right to die in order to agree with this different point.) Like an unfinished note, then, the dissent resonates with conversations to be had in the future, when it will be less and less acceptable to use arguments based on vulnerability to oppose those who, like Mrs. Pretty, are not vulnerable at all.
Notes
1. J. B. White, Justice as Translation: An Essay in Cultural and Legal Criticism (Chicago: University of Chicago Press, 1990), 36n.
2. M. Bakhtin, Problems of Dostoevsky’s Poetics (Minneapolis: University of Minnesota Press, 1984), 252.
3. White, Justice as Translation.
4. White, Justice as Translation, 91.
5. White, Justice as Translation, 101–2.
6. White, Justice as Translation, 102.
7. See, among many, J. B. White, Heracles’ Bow: Essays on the Rhetoric and Poetics of the Law (Madison: University of Wisconsin Press, 1985).
8. For example, Sanford Levinson found his own experience “more vexing than enjoyable,” “Book Review: Conversing About Justice,” Yale Law Journal 100 (1990–1991): 1855, 1861. More viscerally, M. V. Tushnet responded “as most people respond to fingernails raking across a blackboard,” “Book Review: Translation as Argument,” William & Mary Law Review 32 (1990–1991): 105, 105. A more welcoming experience, closer to my own, is described by E. Mertz, “Creative Acts of Translation: James Boyd White’s Intellectual Integration,” Yale Journal of Law & Humanities 4 (1992): 165.
9. Pretty v The United Kingdom, Application 2346/02, Judgment of April 29, 2002 (hereinafter Pretty v UK).
10. The Queen on the Application of Mrs Dianne Pretty v Director of Public Prosecutions and Secretary of State for the Home Department (2001) UKHL 61 (hereinafter R [on the application of Pretty] v DPP).
11. The opinion also includes the arguments of the Voluntary Euthanasia Society as well as of the Catholic Bishop’s Conference of England and Wales.
12. D. Manderson, Kangaroo Courts and the Rule of Law: The Legacy of Modernism (Abingdon: Routledge, 2012).
13. This is more than just a metaphor, for a few weeks after her case was denied in court, Diane Pretty died as a result of her illness. For an analogy between judicial opinions and tragedy, see James Boyd White, “Human Dignity and the Claim of Meaning: Athenian Tragic Drama and Supreme Court Opinions,” Journal of Supreme Court History 27 (2002): 45.
14. For the former, see G. Letsas, A Theory of Interpretation of the European Convention of Human Rights (Oxford: Oxford University Press, 2007). For the latter, S. Sotiaux and G. Van der Schyff, “Methods of International Human Rights Adjudication: Towards a More Structured Decision-Making Process for the European Court of Human Rights” Hastings International & Comparative Law 31 Review (2008): 115.
15. The judgments of the House of Lords do not permit to identify a leading opinion, but I will take Lord Bingham’s as the leading one, since the ECtHR cites it verbatim in paragraph 14 of the decision in Pretty v UK.
16. R (on the application of Pretty) v DPP, paragraph 1.
17. R (on the application of Pretty) v DPP, paragraph 2.
18. R (on the application of Pretty) v DPP, paragraph 2.
19. R (on the application of Pretty) v DPP, paragraph 2.
20. When the convention was first drafted death penalty was still contemplated, but subsequent protocols have practically abolished it (the notable exception being Russia), though the original text remains.
21. For various ways to understand the analogy between the right to life/die and property rights see S. B. Chetwynd, “Right to Lie, Right to Die and Assisted Suicide,” Journal of Applied Philosophy 21 (2004): 173.
22. R (on the application of Pretty) v DPP, paragraph 5.
23. Osman v United Kingdom (1998) 29 EHRR 245.
24. X v Germany (1984) 7 EHRR 152 (force-feeding prisoners on hunger strike).
25. Keenan v United Kingdom (App nº 27229/95, 3 April 2001) (an alleged schizophrenic who had committed suicide in prison).
26. Pretty v UK, paragraph 9 (citing Lord Donaldson of Lymington MR in In re J (A Minor) (Wardship: Medical Treatment) [1991] Fam 33 [46]).
27. White, “Human Dignity and the Claim of Meaning,” 53.
28. White, in “Human Dignity and the Claim of Meaning,” alerts against the attitude of eschewing the tangible reality of text toward an ideal plane where concepts are supposed to lay bare (31, 33). In his view, “what lies beyond language is real alright, but it is not communicable, certainly not in the language of concepts” (35).
29. Lord Bingham acknowledges this explicitly in Osman (note 23) but fails to mention it in the other two examples.
30. In Keenan (note 25), a prisoner with schizophrenia was allegedly driven to suicide by the penal authorities, and the court said that the state duty to protect life must yield before human dignity and individual autonomy (paragraphs 92 and 93 of the judgment).
31. Likewise, the manner of approaching death—the ability to write the closing chapter in her life’s book—is given no consideration. See R. Dworkin, Life’s Dominion: An Argument About Abortion and Euthanasia (London: HarperCollins, 1993).
32. White, Justice as Translation, 29.
33. Pretty v UK, paragraph 39.
34. Pretty v UK, paragraph 39.
35. Pretty v UK, paragraph 39.
36. Pretty v UK, paragraphs 61 and 62.
37. Pretty v UK, paragraph 65.
38. Pretty v UK, paragraph 67. Article 8 § 1 of the ECHR states: “Everyone has the right to respect for his private and family life, his home and correspondence.”
39. R (on the application of Pretty) v DPP, paragraph 19.
40. Rodriguez v Attorney General of Canada (1994) 2 LRC 136.
41. Rodriguez v Attorney General of Canada, 189.
42. For a sustained criticism of the judgment, see L. Weinrib, “The Body and the Body Politic: Assisted Suicide under the Canadian Charter of Rights and Freedoms,” McGill Law Journal 39 (1994): 618. Slippery-slope arguments are inherently problematic, for the consideration of the instant case is subordinated to an imaginary, speculative, scenario. Obviously, the argument can also be questioned on empirical grounds; see R. G. Frey, “The Fear of a Slippery Slope,” in Euthanasia and Physician-Assisted Suicide: For and Against, ed. G. Dworkin, R. G. Frey, and S. Bok (Cambridge and New York: Cambridge University Press, 1998), 43–63.
43. See R (on the application of Pretty) v DPP, paragraph 22.
44. R (on the application of Pretty) v DPP, paragraph 23.
45. White, Justice as Translation, 235 (referring to Spanish philosopher Ortega y Gasset on translation).
46. Pretty v UK, paragraph 66.
47. Pretty v UK, paragraph 64. The court’s citation has been interpreted by UK courts as an “endorsement” of Lord Hope on this issue. See The Queen (on the Application of Debbie Purdy) v DPP [2009] EWCA Civ 92 [2009] (Ward, J., paragraph 47).
48. Pretty v UK, paragraph 65.
49. Pretty v UK, paragraph 67.
50. Article 8 § 2 of the ECHR states: “There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
51. For a relevant (and controversial) case striking down national legislation with the argument that Parliament failed to make relevant distinctions, see Hirst v UK (App nº 74025/01, 6 October 2005) (holding that the ban of voting rights for prisoners irrespective of their prison sentence violated the electoral rights of article 3 of protocol 1 of the ECHR).
52. J. Boswell, Life of Johnson, 3rd ed. (Oxford: Oxford University Press, 1970), 735 and 496 (as cited by Lord Bingham in R (on the application of Pretty) v DPP, paragraph 29).
53. R (on the application of Pretty) v DP , paragraph 29.
54. J. Derrida, “Force of Law: The ‘Mystical Foundation of Authority’” Cardozo Law Review 11 (1990): 919, 961–63.
55. Pretty v UK, paragraph 75.
56. Pretty v UK, paragraph 76.
57. The court tries to navigate the aporia (between the generality of law and the particular case), first, by extending the definition of law to the practices of implementation and enforcement, and then, by showing that the individual claims for justice have been generally attended by the law.
58. See White, Justice as Translation, and White, Heracles’ Bow. Also, White “What’s an Opinion For?” in From Expectation to Experience: Essays on Law & Legal Education (Ann Arbor: University of Michigan Press, 2000), 35–42.
59. White, Heracles’ Bow, 116.
60. See note 45 and accompanying text.