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The Structures of the Criminal Law$
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R.A. Duff, Lindsay Farmer, S.E. Marshall, Massimo Renzo, and Victor Tadros

Print publication date: 2011

Print ISBN-13: 9780199644315

Published to Oxford Scholarship Online: January 2012

DOI: 10.1093/acprof:oso/9780199644315.001.0001

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Legal Form and Moral Judgement: Euthanasia and Assisted Suicide

Legal Form and Moral Judgement: Euthanasia and Assisted Suicide

(p.134) 7 Legal Form and Moral Judgement: Euthanasia and Assisted Suicide
The Structures of the Criminal Law

Alan Norrie

Oxford University Press

The ethical formalism at the core of criminal law concepts of responsibility plays an important role in permitting courts to make moral decisions without appearing to do so in cases of euthanasia. Judges are able to negotiate unresolved social and moral conflicts concerning the value of human life under cover of applying formal legal categories such as intention, act and omission, and defences. ‘Official morality’, as represented in the criminal law of homicide, proclaims the sanctity of life, but there is significant social and moral support for taking into account quality-of-life considerations. Criminal law finesses this tension through its categories of responsibility. Criminal law addresses four situations in which a person dies or is killed, or is helped to take their own life. In cases of active euthanasia, the law of intention is unusually narrowed, while in cases of passive euthanasia, the act/omission distinction is used to avoid responsibility. In the case of surgical intervention to kill one but save another, the distinction between offence and defence and the defences of necessity and duress are deployed. The law is used creatively to permit death to occur under the reassuring cover of applying established legal rules, but the rules and how they are applied are doctrinally problematic. Finally, a fourth case that does not allow for this legal finesse of moral issues is that of aiding and abetting suicide. Here, the moral does not permit flexible use of the law, with the result that a non-doctrinal solution, turning a discretionary blind eye in practice to ‘suicide tourism’, is deployed. The underlying thrust of modern criminal law is towards moral formalism in its concepts of responsibility, but this permits it, paradoxically, to intervene morally in favour of the quality-of-life position.

Keywords:   criminal law, responsibility, euthanasia, official morality, homicide, sanctity of life, quality of life, active euthanasia, passive euthanasia, suicide

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