| legal theory: philosophy | |
Assisted Suicide: Enter the Philosophers |
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Consider, now the so-called "Philosopher's Brief." Six eminent American moral philosophers -- Ronald Dworkin, Thomas Nagel, Robert Nozick, John Rawls, Thomas Scanlon, and Judith Jarvis Thomson -- submitted the Brief to the Supreme Court in support of the Ninth and Second Circuit's holdings of unconstitutionality in the Glucksberg and Quill cases. Ronald Dworkin -- the only member of the group who also holds credentials as a lawyer and the chief author of their brief -- knows of no "other occasion on which a group has intervened in Supreme Court litigation solely as general moral philosophers." Ronald Dworkin, "Introduction," to "Assisted Suicide: The Philosophers' Brief," New York Review of Books vol. XLIV, No. 5,March 27, 1997, pp. 41-45, at 41. If the Brief is indeed in that respect unprecedented, perhaps that is not surprising. The authors' very act of "intervening" in litigation "as" moral philosophers invites the question of what philosophers can possibly have to teach Supreme Court Justices about law.
Knowledge of moral philosophy is not, after all, the same thing as knowledge of the law. And it can hardly be doubted that the normal aim of any properly submitted brief in a legal case must be to persuade the receiving court on a matter of law. Nevertheless, this Brief's authors, by way of explaining to the Supreme Court why their views might be worthy of the Court's attention, specifically introduced themselves as moral and political philosophers. "[1]Amici," they wrote,
are . . . moral and political philosophers . . . united . . . in their conviction that . . . fundamental principles of liberty and justice, as well as . . . the American constitutional tradition, require[] that the decisions of the Courts of Appeals be affirmed.
On first look, that sentence may seem to assert the philosophers' belief that there exist two separate kinds of reasons for allowing certain terminally ill and severely suffering persons to have a willing doctor's help in bringing life to an end, without interference from the state. That is, there are reasons of law ("the American constitutional tradition") and there are also separately grounded reasons of political morality ("fundamental principles of liberty and justice"). On that view, law and morality are two different kinds of reasons for action, grounded in two independent domains of normative judgment. Thus, a decision to set a person free of a certain sort of state regulation can be legally incorrect even if morally correct, or it can be legally correct even if not morally correct, or it can be both, or it can be neither. Given such a separatist construction of the relation between the demands of morality and of law, we could well understand why professional moral and political philosophers would feel themselves qualified to advise non-experts in moral theory (and that would include most Justices of the Supreme Court) on reasons of political morality -- presumably leaving to experts in the law the work of advising on reasons of law. We would be left, however, to puzzle over what morality has to do with the work of the Supreme Court -- over how it can be that a court of law, staffed by judges sworn to uphold the law, should worry itself about anything except deciding what result they believe the law requires in the case before them, let morality say what it will.
Is this really the picture that the authors of the Philosophers' Brief had in mind? A closer reading of their sentence of self-identification --
Amici are . . . moral and political philosophers . . . united . . . in their conviction that . . . fundamental principles of liberty and justice, as well as . . . the American constitutional tradition, require[] that the decisions of the Courts of Appeals be affirmed. --
suggests that it is not. That sentence, after all, is entirely directed to a sort of decision confronting the Supreme Court that obviously falls into the category of a legal decision -- that is, whether or not to leave in place the legally operative judgments of two Courts of Appeals. The authors, therefore, must be denying a strict separation between the two normative "discourses" of law and morality. They must be assuming, to the contrary, an internal connection among (i) considerations of political morality ("fundamental principles of liberty and justice"), (ii) considerations of past political and judicial practice ("the American constitutional tradition"), and (iii) decisions about the meaning and application of a law (the Fourteenth Amendment).
Today, it is uncertain how close the law may be coming to the objective sought by the philosophers. In Glucksberg and Quill, the Court upheld the constitutionality of both the Washington and the New York statutes, without dissent. Although the claims of constitutional right supported by the philosophers were thus turned aside in these two cases, five Justices filed or joined opinions suggesting, to many readers, that, in some aptly framed future case, these Justices might rule against a state's applying its general legal prohibition of assisting a suicide to the case of a doctor complying with a terminally ill and severely suffering patient's freely given request for lethal pills. Other readers think that only one or two of these five Justices can be read in that way, and that the remainder have suggested only something a good deal narrower: that they might rule against application of such a law to the administration, in such a case, of "terminal sedation." (Ronald Dworkin, the chief author of the Philosophers' Brief, supports the broader reading in Ronald Dworkin, "Assisted Suicide: What the Court Really Said," New York Review of Books vol. XLIV, No. 14, September 25, 1997, pp. 40-44. In an exchange with Dworkin, University of Michigan law professor Yale Kamisar supports the narrower reading, in "Assisted Suicide and Euthanasia: An Exchange," New York Review of Books vol. XLIV, No. 17, November 6, 1997, pp. 68-70.)
However matters may turn out, it is most unlikely that we shall ever know what (if any) actual influence the Philosophers' Brief will have had on the views of any Justice. That, however, is not our concern right now. Rather, the question for us is why moral philosophers should imagine that they, specifically in their capacities as moral philosophers, could possibly have anything to contribute to the legal decisionmaking of the highly capable and knowledgeable lawyers who sit as Justices of the Supreme Court.
