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

• Author / Creator

  Hardes, Jennifer J

• 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.

• Subjects / Keywords

  • Immunization
  • Assisted dying
  • Esposito
  • Law

• Graduation date

  Fall 2014

• Type of Item

  Thesis

• Degree

  Doctor of Philosophy

• DOI

  https://doi.org/10.7939/R3VM4356Q

• License

  This thesis is made available by the University of Alberta Libraries with permission of the copyright owner solely for non-commercial purposes. This thesis, or any portion thereof, may not otherwise be copied or reproduced without the written consent of the copyright owner, except to the extent permitted by Canadian copyright law.