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Law, Immunization and the Right to Die: On Legal Fictions and the Governance of Assisted Dying Open Access


Other title
assisted dying
Type of item
Degree grantor
University of Alberta
Author or creator
Hardes, Jennifer J
Supervisor and department
Pavlich, George (Sociology)
Examining committee member and department
Martel, James (Political Science)
Kellogg, Catherine (Political Science)
Davidson, Judy (Physical Education)
Hogeveen, Bryan (Sociology)
Department of Sociology

Date accepted
Graduation date
Doctor of Philosophy
Degree level
This thesis charts and explores the effects of a basic socio-political logic of English and Canadian case law on assisted dying. It focuses specifically on a problematic paternalism within such law and questions why judicial decisions consistently refuse to recognize so-called ‘compassionate motives’ for assisted death. When one ventures beyond judicial ratios, focusing instead on cases as discourses in relation to wider power-knowledge relations, one glimpses how law helps to shape and support a political rationality of neoliberalism in explicit and subtle ways. In particular, an analysis reveals how specific cases draw on concepts such as enmity, vulnerability, inviolability of persons, security of persons and of society, dignity and dependency, which feed two legal fictions – immune persons and an immune society – that reflect the individualizing, privatizing and divisive ethos of a neoliberal rationality. Referring to Esposito’s (2008, 2010, 2011, 2013) insights the following thesis describes how a person may be immunized from outside interference and from an obligation toward others, just as an immune society becomes a totality of reciprocally immune persons. In this context, legal discussions centred on calls for assisted death are paradoxical. On the one hand, they draw on concepts to feed fictions that reflect a neoliberal ethos, which presents appellants as the right kind of subjects for death (i.e., they are abject enough because they threaten to challenge the legal fiction of immune persons in an immunized society). On the other, the law’s concepts and fictions simultaneously makes the act of killing these subjects illegal by developing a universalizing logic of immunity that ensures subjects are divided from one another, ‘protected’ from any outside interference – no matter their requests. This divisive neoliberal ethos of law annuls a vibrant politics of assisted death because it is unyielding in asserting that any form of assistance for death cannot be legal, rendering its acknowledgment of how and why some persons are appropriate subjects for death somewhat beside its legal point. In conclusion, the thesis suggests how the law and legal processes might be amended as part of an ‘affirmative politics’ that responds to requests for assisted death differently in lieu of the critiques sets forth.
Permission is hereby granted to the University of Alberta Libraries to reproduce single copies of this thesis and to lend or sell such copies for private, scholarly or scientific research purposes only. Where the thesis is converted to, or otherwise made available in digital form, the University of Alberta will advise potential users of the thesis of these terms. The author reserves all other publication and other rights in association with the copyright in the thesis and, except as herein before provided, neither the thesis nor any substantial portion thereof may be printed or otherwise reproduced in any material form whatsoever without the author's prior written permission.
Citation for previous publication
Hardes, J. (2013). Fear, Sovereignty and the Right to Die, Societies, 3(1), 66-79.Hardes, J. (2014). Biopolitics and the Enemy: On Law, Rights and Proper Subjects, Law, Culture and the Humanities Journal. Forthcoming. Online before print.

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