The right to death.

Abstract

I want to start with a phrase from the Declaration of Independence, but by the slightly indirect approach of quotation within a quotation. With his usual shrewd grasp of fundamentals, the lawyer Lincoln once wrote: “The authors of that notable instrument ... did not intend to declare all men equal in all respects. They did not mean to say that all men were equal in color, size, intellect, moral developments, or social capacity. They defined with tolerable distinctness in what respects they did consider all men created equal - equal in certain ‘unalienable rights, among which are life, liberty and the pursuit of happiness.’ ” It is perhaps tempting to digress to support and to labour the point that neither Lincoln nor the Founding Fathers believed: either that “at birth human infants, regardless of heredity, are as equal as Fords” or that some such repudiation of genetic fact is implied or presupposed by any insistence upon an equality of fundamental human rights. 1 But our present concern is with the actual prescriptive and proscriptive content of these particular norms. For us the crux is that they are all, in M. P. Golding’s terminology, option as opposed to welfare rights: the former forbid interference, within the spheres described, entitling everyone to act or not to act as they see fit; whereas the latter entitle everyone to be supplied with some good, by whom and at whose expense not normally being specified. 2 Hence, with that “peculiar felicity of expression” that led to his being given the drafting job, Thomas Jefferson spoke: not of rights to health, education, and welfare - and whatever else might be thought necessary to the achievement of happiness; but of rights to life, liberty, and the pursuit of happiness - it being up to you whether you do in fact pursue (and to the gods whether, if so, you capture) your prey. An option right is thus a right to be allowed, without interference, to do your own thing. A welfare right is a right to be supplied, by others, with something that is thought to be, and perhaps is, good for you, whether you actually want it or not. To show that the Founding Fathers were indeed thinking of option rather than welfare rights, it should here be sufficient to cite a passage from Blackstone, which has the further merit of indicating upon what general feature of our peculiarly human nature such fundamental rights must be grounded. From their first publication in 1765, his Commentaries on the Laws of England had a profound influence on all the common law jurisdictions in North America, an influence that continued well into the Federal period. Blackstone wrote: The absolute rights of man, considered as a free agent, endowed with discernment to know good from evil, and with the power of choosing those measures which appear to him to be most desirable, are usually summed up in one general appellation, and denominated the natural liberty of mankind ... The rights themselves ... will appear from what has been premised, to be no other, than that residuum of natural liberty, which is not required by the laws of society to be sacrificed to the public convenience; or else those civil privileges, which society has engaged to provide in lieu of the natural liberties so given up by individuals. 3