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Opinions of Friday, 27 September 2013

Columnist: Korang, Daniel

In defence of the law of suicide

Daniel Korang (‘Prof’)

“Society is entitled by means of its laws to protect itself from dangers, whether from within or without…. But an established morality is as necessary as good government to the welfare of society. Societies disintegrate from within more frequently than they are broken up by external pressures. There is disintegration when no common morality is observed and history shows that the loosening of moral bonds is often the first stage of disintegration, so that society is justified in taking the same steps to preserve its moral code as it does to preserve its government and other essential institutions. The suppression of vice is as much the law's business as the suppression of subversive activities; it is no more possible to define a sphere of private morality than it is to define one of private subversive activity. It is wrong to talk of private morality or of the law not being concerned with immorality as such or to try to set rigid bounds to the part which the law may play in the suppression of vice.” Patrick Devlin
One area of law that has never enjoyed unanimous juristic acceptation is the law of suicide. Countries are divided on the notions underpinning the law of suicide. Suicide has historically been treated as a criminal matter in many parts of the world. However, the decriminalisation of individual suicides has occurred in western societies, although the act is still stigmatised and discouraged. While a person who has completed suicide is beyond the reach of the law, there can still be legal consequences in the cases of treatment of the corpse or the fate of the person's property or family members. In some countries a person who successfully commits suicide is considered as “a felon of himself” and is punished posthumously by forfeiture of his property to the state. The felon would also get a shameful burial. Thus a person who commits suicide is denied the honours of a normal burial. In some countries, such as Ghana, it is not a crime to commit suicide; it is only a crime to attempt, abet or assist the commission of suicide. Thus section 57 of the Criminal Offences Act (1960 (Act 29) provides that: “57 (1) A person who abets the commission of a suicide commits a first degree felony whether or not the suicide is actually committed. (2) A person who attempts to commit suicide commits a misdemeanour.” Recently, following the upsurge in the cases of suicide in Ghana have been calls to abolish the law on suicide probably as a way of stemming the tide of the sordid act. In this discourse, I propose to present a defence of the law.

Some Reasons and Justification for Suicide and Objections
Problems and Unfavourable Situations
At least in Ghana, outstanding reasons for the commission of suicide include relationship problems, poverty, stress and anxiety, joblessness, deadly sicknesses, psychiatric disorder amongst others. It is a matter of utter regret that some scholars place psychological, psychiatric and emotional problems at the forefront of their argument in favour of legalization of suicide. The truth should not be lost on us that the world is a problem-solving world. In fact, to live well is to be able to solve the problems that life brings. Most ridiculously, the commission of suicide has never, and can never, solve any of the problems for which the act is committed. For instance, if a jobless man commits suicide, the act cannot bring him employment; neither does the commission of suicide put food on the table of the poor. Suicide rather adds to the impoverishment, sorrows, hardship and general unhappiness of men!

Autonomy, Rationality and Responsibility

A more restricted argument in favour of permissible suicide is that suicide must be regarded as moral and legally acceptable if the choice to end one’s own life is rationally and independently made. In a similar vein, it may be claimed that suicidal choices must be respected if those choices are autonomous, that is, if a rational individual chooses to end his life on the basis of reasons that he acknowledges as relevant to his situation. Such positions permit suicide only when it is performed on a rational basis and permits others to interfere only when it is not performed on that basis. Thus if a rational and autonomous man conscientiously elects to end his own life without any external influence from any other person, then that decision ought to be permitted. This argument is regrettably as vague and flawed as the reasons supporting it. The argument that the choice to end one's life is rational is illogical, incoherent and misplaced especially when we compare the state of being alive (or continuing to live) with being dead. Naturally, nothing is worthwhile if it ends a man’s life. To choose to die is not a rational choice. Moreover, no man is truly autonomous (see below). If we were indeed such autonomous, why then do we protect our children from destroying themselves even when they have “rationally” and voluntarily chosen those actions?

Libertarian Views and the Right to Suicide
For libertarians, suicide is morally permissible because individuals enjoy a right to suicide which is a necessary corollary of the right to life. It does not of course follow that suicide is necessarily rational or prudent. According to this argument, attempts by the state or by the medical profession to interfere with suicidal behaviour are essentially coercive attempts to circumscribe morally permissible exercise of individual freedom. Libertarianism typically asserts that the right to suicide is a right of noninterference, to wit, that others are morally barred from interfering with suicidal behaviour. Some assert the stronger claim that the right to suicide is a liberty right, such that individuals have no duty not to commit suicide (i.e., that suicide violates no moral duties), or a claim right, according to which other individuals may be morally obliged not only to refrain from interfering with a person's suicidal behaviour but to assist in that behaviour. A popular basis supporting a right to suicide is the idea that we own our bodies and hence we are morally permitted to dispose of them as we wish.

On this view, our relationship to our bodies is like that of our relationship to other items over which we enjoy property rights: Just as our right to a personal computer permits us to use, improve, and dispose of it as we wish, so too does our right to our bodies permit us to dispose of them as we see fit. Consequently, since property rights are exclusive, others may not interfere with our efforts to end our lives.

This assertion, in my opinion, is too simplistic and facile in its appeal. The notion of self-ownership invoked in this argument is quite murky. What enables us to own ordinary material items is their metaphysical distinctness from us. We can own a computer only because it is distinct from us. Indeed, the fact that certain ways of treating ordinary property are not available to us as ways of treating our bodies (we cannot give away or sell our bodies in any literal sense) suggests that self-ownership may be only a metaphor meant to capture a deeper moral relationship. In addition, uses of one's property, including its destruction, can be harmful to others. This is why the state prohibits intentional destruction of property and punishes it as arson. Destruction of property, no matter its nature, which denies others and society its use is punishable. Thus, in cases where suicide may harm others, we may be morally and legally required to refrain from suicide. Moreover, the proponents of self-ownership blithely forget that property ownership in Ghana is not absolute. The state can constitutionally acquire private property compulsorily and pay compensation. Furthermore, as with the property-based argument, the right to self-determination is presumably circumscribed by the possibility of harm to others. For instance, no father can legitimately claim to end his own life without harming his children, wife and other dependents.

Another rationale for a right of noninterference is the claim that we have a general right to decide those matters that are most intimately connected to our well-being, including the duration of our lives and the circumstances of our deaths. On this view, the right to suicide follows from a deeper right to self-determination, a right to shape the circumstances of our lives so long as we do not harm or imperil others. The view is held that the right to suicide is the natural corollary of the right to life. That is, because individuals have the right not to be killed by others, the only person with the moral right to determine the circumstances of a person's death is that person himself and others are therefore barred from trying to prevent a person's efforts at self-inflicted death.
This position is open to multiple objections. First, the argument is premised on a twisted view of the attributes of human rights. It does not seem to follow from having a right to life that a person has a right to death, i.e., a right to take his own life. The right to death argument also forgets that, the right to life is guaranteed by law. No human right is enjoyed in vacuum; it must have statutory or legal foothold. If the law does not positively guarantee “right to death” then no one can legitimately infer such non-existing right as a corollary of the positive right to life. Further, the right to death argument regrettably overlooks the fact that rights are “inviolable” and “inalienable”. These inherent attributes of right to life embodies a positive injunction that no one can forfeit a man’s right to life – not even the man himself. This conclusion is made stronger if the right to life is inalienable or inviolable, since in order for me to kill myself, I must first renounce my inalienable right to life, which I cannot do. If a man can legitimately kill himself, then the right to life ceases to be inalienable and inviolable.

Social, Utilitarian, and Role-Based Arguments

Another approach to the question of suicide's permissibility asks not whether others may interfere with suicidal behaviour but whether we have a liberty right to suicide, whether suicide violates any moral duties to others. Those who argue that suicide can violate our duties to others generally claim that suicide can harm either specific others (family, friends, etc.) or is a harm to the community as a whole. No doubt the suicide of a family member or loved one produces a number of harmful psychological and economic effects. In addition to the usual grief, suicide “survivors” confront a complex array of feelings. Suicide also leads to rage, loneliness, and awareness of vulnerability in those left behind. Still, some of these reactions may be due to the strong stigma and shame associated with suicide.
Suicide can also cause clear economic or material harm, as when the suicidal person leaves behind dependents who are unable to support themselves financially. These dependents may add to the burden of the society. Suicide can therefore be understood as a violation of the distinctive “role obligations” applicable to spouses, parents, caretakers, and loved ones. At most, the argument that suicide is a harm to family and to loved ones establishes that it is sometimes wrong. A person who commits suicide and leaves behind minors and a widow or widower rather adds to their sorrows, impoverishment and agony. The costs of suicide transcend personal costs.

The “autonomy argument” is equally flawed and baseless. A truly independent and autonomous person is he who begets himself, takes care of himself, is able to end his own life and preserve his mortal remains in a manner that does not harm anyone or society. Let’s pause here and ponder: who preserves and buries the mortal remains of a person who commits suicide? Who bears the cost of caskets, burial grounds, funeral arrangements and other related charges? Can the corpse of a suicider be left in the street without causing any harm to society? Are these charges and costs not borne by families and society? Suicide brings economic hardship to families, friends and society in general and must therefore be condemned.

Moral duty to family and society
A right to commit suicide is an indictment of the legitimate expectation of families that its members will reciprocate the general care and love bestowed on those individuals. When parents bear the pains of conception, the agony of labour, the stress of child upbringing and the hurdles of educating their children, they legitimately expect such children to reciprocate by growing to be responsible members of their families. Anyone who has benefited this much from his family has no moral right to end his own life. Indeed, everyone owes some moral duty to their families. Are the proponents of right to suicide trying to say that if families spend their all to educate a person to become, say, a lawyer only for the person to commit suicide after one year of becoming a lawyer that person has caused his family and society no harm? This is ridiculous! Families have interest, legitimate one of course, in the lives of their members.

Dismemberment of society

Another brand of social argument echoes Aristotle in asserting that suicide is harm to the community or the state. One general form such arguments take is that because a community depends on the economic and social productivity of its members, its members have an obligation to contribute to their society, an obligation clearly violated by suicide. For example, suicide denies a society the labour provided by its members, or in the case of those with irreplaceable talents such as medicine, art, or political leadership, and the crucial goods their talents enable them to provide. Another version states that suicide deprives society of whatever individuals might contribute to society morally (by way of charity, beneficence, moral example, etc.).
Still, it is difficult to show that a society has a moral claim on its members' labour, talents, or virtue that compels its members to contribute to societal well-being no matter what. After all, individuals often fail to contribute as much as they might in terms of their labour or special talents without incurring moral blame. People freely choose to work or be lazy without incurring any civil or criminal liability. It does not therefore seem to be the case that individuals are morally required to benefit society in whatever way they are capable, regardless of the harms to themselves. Again, this line of argument appears to show at most only that suicide is sometimes wrong, namely, when the benefit (in terms of future harm not suffered) the individual gains by dying is less than the benefits he would deny society by dying.

A modification of this argument claims that suicide violates a person's duty of reciprocity to society. On this view, an individual and the society in which he lives stand in a reciprocal relationship such that in exchange for the goods, facilities, amenities etc the society has provided to the individual, the individual must continue to live in order to provide his society with the goods that such relationship demands. Yet in envisioning the relationship between society and the individual as quasi-contractual in nature, the reciprocity argument reveals its principal flaw: The conditions of this “contract” may not be met, and also, once met, impose no further obligations upon the parties.
Some scholars have argued that, the contract between an individual and his society is a conditional one, presupposing “mutual advantages between the contracting parties.” Hence, if a society fails to fulfill its obligations under the contract, namely to provide individuals with the goods needed for a decent quality of life, then the individual is not morally required to live in order to reciprocate an arrangement that society has already reneged on. Moreover, once an individual has discharged his obligations under this societal contract, he no longer is under an obligation to continue his life. Hence, the aged or others who have already made substantial contributions to society’s welfare would be morally permitted to commit suicide under this argument. Again, this argument must collapse for want of logic and reason. Society exists because it has members. There cannot be any society without members. The Ghanaian society is, because we are! The death of a member diminishes the society. Therefore, the society has an inherent interest in the lives of its members. Any attempt to dismember society must therefore be condemned and punished accordingly.

Legal Paternalism: The role of law in society

To advocate a right to suicide is have a bizarre view of the functions of law in society. Legal paternalism is the view that it is permissible for the state to legislate against what some scholars such as John Stuart Mill calls “self-regarding actions” when necessary to prevent individuals from inflicting physical or severe emotional harm on themselves or killing themselves. As Gerald Dworkin describes it, in law, paternalist interference is an “interference with a person’s liberty of action justified by reasons referring exclusively to the welfare, good, happiness, needs, interests or values of the person being coerced”. Thus, for example, a law requiring the use of a helmet when riding a motorcycle is a paternalistic interference insofar as it is justified by concerns for the safety of the rider. Must we also scrape this traffic regulation off our statute books because it is individual-centered? Can children voluntarily undertake child labour and other dangerous ventures because it is about their own lives? Why must we punish a private car owner for negligent driving when he actually endangers himself alone and not any other? Society thrives and survives on the lives of its members; it must therefore be the concern of law to protect them.
Any legal system and for that matter a system of criminal justice that legalizes suicide is not worth its name and is regrettably premised on twisted view of the proper function of law in society. As law continues to search for its true role, if indeed it has any role to play, in society, any suggestion that has the unworthy goal of legalizing suicide must be pooh-poohed and rejected as infantile, superfluous and untenable. Our concern must be to establish and maintain social arrangements for continued existence, not with those of a suicide club.

It is a firmly rooted practice of the police and prison services to remove laces, braces, ties, socks, trousers and shirts of prisoners to avert possible suicide. To legalise suicide means to create a society with a culture of death where people choose to die on the least provocation and for frivolous reasons. This situation will ultimately make national development a mere pipe dream. No nation can develop if its workforce or those in active labour are permitted to commit suicide as of right. If it is permissible for a man to take his own life through whatever means, then what justification, moral or legal, would a man have to make a claim for compensation for personal bodily injuries suffered through the actions of other persons? The law of suicide is as useful as any other law in Ghana.
Suicide must be regarded as morally and legally forbidden because general adherence to a rule prohibiting suicide would produce better overall consequences than would general adherence to a rule permitting suicide. In this regard, the wisdom-laden statement of Patrick Devlin will be a suitable conclusion: “But the true principle is that the law exists for the protection of society. It does not discharge its function by protecting the individual from injury, annoyance, corruption, and exploitation; the law must protect also the institutions and the community of ideas, political and moral, without which people cannot live together. Society cannot ignore the morality of the individual any more than it can his loyalty; it flourishes on both and without either it dies.”

Daniel Korang