We are told that judicial engagement will not lead to dueling natural rights jurists usurping republican government. But what rights do they see?
The ancients have taught us that a tragedy isn’t any and all bad things that happen, or any death—it is a situation where a hero runs up against the limits of politics and is destroyed. He is confused by what is happening to him. As a hero, he thinks he’s doing exactly what society expects of him, and doing it better than everyone else. Assuming he’ll be loved and honored for his heroism, he comes into conflict with the very people whose reverence he wants to earn.
In the United Kingdom, a child’s fate was decided in a situation that calls forth the same meanings. The boy, Alfie Evans, died on Saturday at 23 months of age. He had been hospitalized with a rare neurological condition. The doctors decided treatment was futile and recommended it be stopped. The parents went to court to continue treatment. A judge sided with the doctors, and sent the police to make sure no one would interrupt what amounted to a medical homicide. The parents, trying everything they could to save their child, saw their own powerlessness in the powerlessness of the infant even as all involved in this situation were stripped of their innocence.
The authorities removed oxygen from the boy, who, however, refused to die during the day he was left without medical care. Like all living things, the boy wished to live, even with his disease, and so the authorities put him back on life support. At that point the father went to see the Pope, who offered the boy protection in an Italian hospital. The Italian state offered the boy citizenship and to fly him to treatment. The judge refused to allow his parents to take Alfie to treatment.
It was just another event in the news, but it is also a fundamental conflict between faith and the state— between sacred law and political power. The several judges who came to be involved in the case seemed sure that the state should take the child from the family. They told his parents that he would inevitably die, and they insisted on the state’s taking responsibility for assuring death when they did not have to. The court insisted that his death en route to a hospital still willing to treat him would not be tolerated.
What does this conflict mean in terms of freedom and virtue?
The authorities thought they were doing justice. The parents thought they should be free to seek care for their child in another country. The state disagreed and insisted that it would be illegal for them to do so. Observe how each party viewed the requirements of virtue: The father thought he was doing the right thing in taking his boy to the hospital, to save his life. Everything about being a British subject was turned upside down, for he was now required to define the right thing as consenting to allow his child to die on the orders of the very authorities who were supposed to defend Alfie’s rights, starting with his right to life. This father was in the situation of a tragic hero.
What was done was done legally, with expertise, in full view of the public, all according to authorized powers to whom everyone deferred. The judges and doctors embodied a view of justice and wisdom which few seemed to be arguing against publicly—not politicians, not the high officials of the Anglican Church, not any other important organization. Nor were there massive protests over this boy’s fate. It would seem that those who represented the majority of the people of Britain decided in favor of Alder Hey Hospital, so much so that the authority of two parents over their child was denied.
This is a view of the state that would tend to make self-government impossible, for it removes the ground of the difference between freedom and obedience to authority. Theoretically, such a state cannot be legitimated by the consent of the governed, because it does not secure their rights, starting with the right to life. It is legitimated instead by its expert and orderly administration of rules of its own making. Theoretically, the state has assumed control of human life and the definition of its limits—death, ultimately. The state has secured passive consent, so that if it does not face a revolution, there’s nothing to worry about.
Kate James and Tom Evans, Alfie’s parents, argued for their freedom, and for their right to decide for their child. They obviously thought, in taking their child to the hospital, that they had certain rights as subjects of the sovereign and certain duties to their child. Had they let him die, which was what the state would later insist on doing, they might have been prosecuted for neglect. They acted freely, but at the same time compelled by necessity. They sought to match their own moral virtues with the intellectual virtues of the doctors, for the National Health Service is a public institution. This turned out to be impossible.
From Social Contract to Suicide Pact
Britons believe that the rights their government should secure for them include a right to healthcare through the National Health Service. This is the law of the land, and a man like Tom Evans is brought to his crisis because he fulfills the requirements of the laws and believes in their justice—only to find out that the community he is part of does not believe in those rights, but instead in something else.
Since it is not reasonable to expect parents—Tom Evans, other Britons who have come into conflict with the NHS over the fate of their ill children in the past, the others who will no doubt do so in the future—to respect such decisions by the government, it can make no claim to their allegiance under the right to life. Indeed the state is discovering entirely different sources of legitimacy involving not the protection of life, but the weighing and culling of lives and the decision as to what life is worth living and what life is not worth living.
This is the tragic conflict almost everyone is ignoring. We do not think any of us should be put in such a situation in any country where politics is built on human rights. We must now confront an example of one of the most prosperous, peaceful, and sophisticated countries in the world reorienting itself away from saving lives to ending them, if the life doesn’t seem worth living.
To some extent, British authority is now a suicide pact, to borrow the phrase of Justice Robert Jackson, who insisted that the U.S. Constitution was not one. Something very important has been lost if the right to life depends on circumstances ascertained by experts and decided on by judges. And if British hospital and police personnel are willing to enforce such decisions, the loss seems coextensive with the British state. It is not an exception, but the new rule.
Up to now, we have understood our freedom as oriented by the goodness, providential or natural, of life. Consider what follows from a government’s holding the power over life or death beyond the levying of the death penalty—which Britain abolished in 1998—upon criminals found guilty after due process of law. Freedom, at that point, can be said to rationally prefer suicide to life. This nihilistic turn has been taken because the authorities have abandoned the teaching of natural rights which was the most important political creed in Britain and in America, the two nations that best withstood the catastrophic tyrannies of the 20th century. It is a question whether the people themselves, unlike their rulers, still believe in their rights, believe that their rights make them free, and believe that their freedom conduces, through the exercise of certain virtues, to the living of a good life.
Shifting the Basis of the Political Community
Our understanding up to now has been that our rights are things we can hold in common. That my right to life and yours and everyone else’s—that all these rights are compatible and in fact that we need each other in order to secure them. Beyond the debate over abortion, our fundamental choice is to be part of a political community where our right to life is protected. That grounds our reasoning about our own interests and how to pursue them. If one person’s right to life is negated by an authority’s judgment that that life is not worth living, there can be no more commonality than between killer and killed.
Our press and those who operate our legal system seem shockingly unable to understand the seriousness of our predicament, much less to solve the problem. If virtue ends up meaning compelling the termination of medical treatment for children, then humanity will come to be defined as paying the least respect to the least among us. This puts an end to human equality.
I suggest that we need to start learning tragedy again to understand our situation as it really is. Our ideas about science and rights are now so confused that things like the hospital-mandated death of Alfie Evans occur in broad daylight and there is little protest. We do not think of Britain as being like North Korea. It is much more like the United States, so the trouble concerns us, too. What it means to lodge the power of life and death in the government, and what it means to place citizens in a radical conflict between love of family and the law—these things are more the stuff of Sophocles’ Oedipus Rex and Antigone, and less what our laws, our press, and our public opinion seem able to handle.
We have become strangers to ourselves. We do not see what we’re doing and consenting to have done in our names. We have to learn again what our rights fundamentally are and what it means to be a good man and a good citizen—what it means to be free and virtuous. Civics classes won’t do. Stories that reveal our own crisis are necessary. We must learn what is right, and we will not learn it except by confronting the ugliest injustices we think ourselves incapable of. We did not get to this situation in one leap; it is the product of ignoring the corruption of our understanding of justice.