The Right to Life and the Value of Life

Orientations in Law, Politics and Ethics

Jon Yorke, Jon Yorke

• Editorial: Routledge
• Año: 2016
• ISBN:
  9781317017738
• Edición: 1
• Categoría: Law
• Categoría: Jurisprudence

This groundbreaking book is the first collection to investigate the law, political science and ethical perspectives collectively in relation to the right and value of life. Its contributions from international roster of scholars are organized around five themes: a theoretical positioning of life and death; War, armed conflict and detention; Death as punishment; Medical parameters for ending life; and medical policies for the preservation of life. In studying this issue in its contemporary contexts of "right" and "value, " the volume fills the current scholarly lacuna in the general subject of the orientations of life. It presents a much-needed examination of key issues in a broad practical and theoretical context, and holds broad appeal for scholars, researchers, and students occupied with issues of war, armed conflict, the death penalty, and various contemporary medico-legal scenarios.

Chapter 1
Introduction: The Right to Life and the Value of Life: Orientations in Law, Politics and Ethics

Jon Yorke

The biological and political processes which create, maintain, and end life, are assessed within the evolving parameters of the ‘right to life’ and the ‘value of life.’ These processes are the product of a multi-dimensional relationship between individuals, companies, and governments, and it is necessary to place these relationships under scrutiny to ensure that mortal choices are made legitimately (see Ramcharan 1985; Hood and Hoyle 2008; Schabas 2002 and Rose 2007). The assessment of the evolving spectrum of life scenarios from an isolation of life in its biological existence (Mathieu 2006, 9) through to life as a political expression requires a multi-disciplinary analysis. It is not enough for the right to life to remain within the ambit of law and legal critique, political science and philosophical exposition and other systems of thought (for example, those considering autopoietic sociology, feminism and religion) are also required.1 Furthermore, the value of life cannot remain within the realm of economics and actuarial calculation, it must include a consideration of the ethical and sentimental circumstances (Rorty 1993) which infiltrate financial exchange. Hence there is a need for ‘orienting ourselves in thought’ (Kant 1970, 241),2 to continue the assessment of the questions which are currently in the public domain, for example the debates concerning the legitimacy of war, the death penalty and retribution in punishment, abortion and the propositions of the pro-life and pro-choice movements.3 There are also new and developing questions which require scrutiny, for example, those concerning human embryonic stem cell research, and therapeutic and non-therapeutic cloning, which seek to contribute to the health and macro-eugenic governmental strategies, and the micro-eugenic considerations by parents (see Rose, Wahlberg and Klein, this collection).4

What will become clear throughout this book is that there is uncertainty over the application of the right to life and the value of life to many of the different questions of life and death. Indeed, as life and death concepts become more nuanced a greater degree of sensitivity is required to engage the right to life and the value of life in legitimate ways. In the presence of the (different) decisions made by governments, companies and individuals, it becomes fundamental to determine how people and organisations act. What follows in this introduction is an overview of these issues and then it is proposed that the legitimate application of the boundaries of the right to life and the value of life are contingent upon the transparency of the various decision making processes (including those made by governments, the commercial sector and different religious organisations and theocracies) and the dissemination of information for the specific issues concerning life and death. It is argued that perceived legitimate life and death decisions can only be made, by all parties, after an adequate consideration of the most up-to-date information: following Gibson, this collection, this information must be sensitive to cultural variations and plural sentiments within society.

The Right to Life and the Value of Life

The right to life has been both ‘defined’ and ‘enumerated’ in the international human rights instruments following World War Two, but there is still uncertainty over its scope. There are many instances where the drafters of various treaties were unsure, and in some cases in conflict, over the textual formulation of the right (Colon-Collazo 1985; Ramcharan 1985), and specific examples can be seen from the recorded drafting debates of both the International Covenant on Civil and Political Rights (see Schabas 2002, 45-92) and the European Convention on Human Rights (see Council of Europe 1975; Wicks 2000; Yorke, this collection, and 2010). The right to life is included in the Universal Declaration of Human Rights, article 3, as an ‘enumeration’ that ‘[e]veryone has the right to life, liberty and security of person.’5 The text is recorded through a basic articulation which gives room for a reflexive interpretive mechanism to encompass the different life and death concepts as they evolve. While other instruments provide ‘definitions’ of the scope of the right to life, for example, the International Covenant on Civil and Political Rights, article 6, which begins with an enumeration that ‘[e]very human being has the inherent right to life,’ and then details that no one shall be arbitrarily deprived of life, and then specific issues concerning the death penalty are recorded, including the prohibition on the reintroduction of the punishment once abolished, the right of pardon, and the non-application of the punishment for people below the age of eighteen, and pregnant women.6 There are both advantages and disadvantages in using definitions. An advantage is that the text may produce certainty in the law with regard to the specific listed circumstances, but a disadvantage may be that it renders the text inflexible to the evolving, and new, life and death questions.7

The textual variation supplied by the enumeration or definition of the right to life has not created a clear legal position. Hugo Bedau stated that the ‘salient fact about this right is the considerable disagreement over its scope’ (Bedau 1968, 550). In the 1980s and 1990s the Association of International Consultants on Human Rights investigated the parameters of the right to life and identified the expanding and varying boundaries of the right (Association of International Consultants on Human Rights 1992, 3). William Schabas has observed that the right is ‘intangible in scope, and vexingly difficult to define’ (Schabas 2002, 8), and James Griffin notes that the ‘scope of the right seems irresistibly to expand,’ and that there is a ‘ballooning of the content’ (Griffin 2008, 212-213). As a consequence this right does not have a ‘clear boundary’ because what ‘starts off as the least problematic of rights becomes, on reflection, distinctly problematic’ (ibid., 213). Torkel Opsahl affirmed that the right to life, and the ‘context in which it operates will show that what at first seemed simple may have problematic points’ (Opsahl 1993, 207), and Jacques Derrida goes as far to argue that the right to life is ‘highly precarious,’ as its ‘concept and axiom are more than problematic’ (Derrida and Roudinesco 2004, 153).

Even with the uncertainty concerning the scope of the right to life, it has not thwarted an attempted definition of the right in absolute terms. It has been described as a ‘natural’ and ‘inalienable’ attribute of every human being, an ‘absolute’ right (Bedau 1968, 553), and as ‘undoubtedly the most fundamental of all rights’ (van Boven 1988; Delafield Smith 1955), ‘the supreme right,’8 ‘the foundation and cornerstone of all other rights,’9 and as ‘ranking the highest,’ ‘primordial,’ ‘imprescriptible,’ a ‘cardinal human right’ (Ramcharan 1985, 18, 19), the ‘irreducible core of human rights,’ (Jachec-Neale, this collection) and as an ‘imperative norm of international law’ (Ramcharan 1985, 12). With such apparent incontrovertible mandate, the right to life has been identified as a ‘norm of ius cogens’ (Redelbach 1985, 182) which may not be derogated from in any circumstances. No government may deny its existence.

The duty on the state to protect the right to life has negative as well as positive applications. In the negative, governments must take all reasonable measures to prevent unlawful deprivations, including arbitrary deprivation.10 In the positive, governments must take all reasonable measures to promote the right to life, by for instance, reducing infant mortality and increasing life expectancy, which will involve having an adequate healthcare service to tend to the population’s health needs. However, the right to life does not mean that life must exist under all circumstances as Ramcharan observed, ‘[i]t is not life, but the right to life which is protected by law’ (Ramcharan 1985, 2). For example, William Schabas notes there are some ‘rather obvious exceptions to the right to life,’ for instance the ‘right to self-defence, including the right to take another person’s life where his or her own life is threatened by that person’ (Schabas 2002, 7), and Fiona Leverick argues that within the right to life itself, ‘the most convincing explanation of the permissibility of killing in self-defence can be found’ (2006, 54). The permissibility of self-defence is derived from the inalienability of the right to life that is possessed by innocent people(s) and states. The basic position may be explained in that if an attacker applies violence (towards an individual in a domestic criminal law circumstance, or a country or a terrorist, in an act of war), the innocent party may initiate a proportionate response. If an attacker aims to kill (individual(s) or a state’s political infrastructure) he/she may forfeit the right to life and be killed. As Ramcharan argued above, it is not ‘life’ that must be protected in every circumstance, but only the ‘right’ to life. The innocent party maintains the ‘right,’ but the attacking party advancing violence may lose the protection of the ‘right.’ This example is best placed within the state’s negative duty to refrain from putting to death (because of the inalienability of the right to life) unless there is a legal basis for such killing (as the forfeiture of the right to life has been demonstrated), and we can also interpret this as a principle applying in a negative way to individuals (although the assessment of an individual’s actions will be within domestic criminal law and not human rights). There can also be exceptions to the right to life in its positive application, for instance, allowing the death of an individual on a life support machine when it is not in his best interest to be (artificially) kept alive, or the separation of a conjoined twin where the continued biological existence of Childs A and B was killing Child B and B would eventually die of natural causes (and die following surgery), but A might survive following a surgical separation (see Wicks and Watt, this collection). The extent of the application, and the manifestation of an exception, of the right to life to the beginning, continuance, and ending of life, will depend upon societal and political sentiments (Rorty 1993),11 and the economic resources of the country. Sylvanus Okechukwu observes that:

the right to life...shows that the nature and scope of the rights protected, guaranteed and promoted, depend fundamentally on the different levels of development attained by various societies and on the different ideologies they propound (Okechukwu 1990, 323).

At the beginning of life, scientific research on the ova and sperm, infertility treatment, studies in embryology and stem cells,12 neonatal care, and advances in obstetrics and gynaecology, will affect the opinions on when (the right to) life begins, which, for instance, will have implications for the debates surrounding abortion. For the continuance of life the extent of the government’s promotion of the right to life will depend upon the level of a country’s development and available resources to meet basic needs; including the provisions for adequate water and food, the delivery of a certain level of protection against internal individual(s) threatening other individuals or a population, and also externally from outside threats to the survival of the population.13 The government should also implement reasonable measures to provide paediatric care to reduce infant mortality, improve care of the population to increase life expectancy, and take steps to provide an adequate environment where the population may thrive. If an individual experiences an accident, illness or disease an adequate medical service should be readily available.14 To provide this service to a population, it requires adequate funding, infrastructure, management, and delivery of care.

Death occurs either by perceived natural causes, for example, disease, illness or old age, or by perceived unnatural causes, including, accidents, trauma, neglect, poisoning, suicide, euthanasia, and homicide. When death occurs the analysis of the right to life requires that the relationship of the government with the deceased individual is placed under scrutiny. For example, whether during the targeting of a person in a combat zone he or she can be recognised to be an enemy combatant or a civilian. If a civilian, then it is not legitimate to kill the individual as he/she is not threatening the security of the attacking government. However, if the person is identified as an enemy, the killing will be a legitimate, and legal, cause of action (see Jachec-Neale and Breau, this collection). Furthermore, the boundaries of the state control over the life and death of its population (Foucault 2004) is placed under question when it seeks to implement a death penalty (see Freeland, Yorke, and Bowring, this collection). The question will be whether the right to life can be used to protect an individual, who has committed a murder, from being executed. The sovereign right of the death penalty has been applied at some point in the history of most countries of the world. However, the right to life has evolved as a defensive mechanism to argue that the state no longer has the right to administer an execution. In another example, if an individual seeks to obtain the right to end their own life through assisted suicide or voluntary euthanasia (see Benatar and Smith, this collection), the question will be whether the right to life can include a right to end one’s own life. For now the majority of the world does not allow the right to life to include a right to cause one’s own death, but there is a growing sentiment to promote change. The ethical positions on autonomous decisions for determining that one’s life has lost value, are gaining momentum.15

What is also noticeable is that the issue of the right to life is becoming more and more infused with the calculations on the ‘value of life’ (see Rose and Smith, this collection).16 As a general proposition, the value of life is assessed by the individual, the commercial sector, and governments. An individual may view his own value of life through the two traditional positions of either that life has an inherent or basic value (via the doctrine of the ‘Sanctity of Life’ (SOL)), or by a quality of life assessment (via the doctrine of ‘Quality of Life’ (QOL)). The traditional SOL position maintains that in its religious articulation that a transcendent religious entity bestowed life and it is only for that entity to allow the beginning, continuance or ending of life. In its secular articulation, the SOL position maintains that life is a basic, foundational, good and consequently it is not permissable to intentionally end life. Hence, those advocating the SOL position, generally, are against abortion, assisted suicide and euthanasia. The traditional QOL position lies in the utility of life, in that life should exist if it has a certain quality and/or function. Hence, if an individual decides that his/her quality of life has now diminished to such an extent that it is cognitively and physically unbearable that a right to end one’s own life should be granted. As such, those advocating the QOL position may allow for the possibility of abortion, assisted suicide and euthanasia (this is the general bifurcation of the positions but see the cogent argument for a fusion within one principle in Smith, this collection). The government, and the commercial sector (increasingly occupied by the biotechnology industry), assess life on utility and cost, which encompasses the general running of a country, including, for example, healthcare, population fluctuations, and compensations in wrongful death claims.

However, the value of life does not have a clear boundary and the observations on the multifaceted approaches above problematise the ‘value’ assessment (see Rose and Gibson, this collection). Part of the difficulty lies in the fact that value in life encompasses what may be termed ‘measurable aspects’ and ‘immeasurable aspects.’ The measurable aspect of the value of life can be calculated by governments, companies, and international organisations, such as the World Health Organization and the United Nations. Individuals can measure the value of themselves financially, by how much the...