Tagged: Gorsuch

The Dynamics of Dignity

My wife got a Jeep Wrangler Unlimited Rubicon a few days back. It has necessitated a new education in off-road machinery like locking axles, low 4, and disconnectable sway bars. It seemed the right choice for our reinsertion into New Mexico, a land that was only partially accessible by cheap, whatever-you-can-afford, vehicles twenty years ago when we were grad students. So we had to start driving random off-road locations and found Faulkner’s Canyon in the Robledos. Billy the Kid used this area as a refuge at one point and we searched out his hidey-hole this morning but ran out of LTE coverage and couldn’t confirm the specific site until returning from our adventure. We will try another day!

Billy the Kid was, of course, a killer of questionable moral standing.

With the Neil Gorsuch nomination to SCOTUS, his role in the legal and moral philosophies surrounding assisted suicide has come under scrutiny. In everyday discussions, the topic often centers on the notion of dignity for the dying. Indeed, the autonomy of the person (and with it some assumption of rational choice) combines with a consideration of alternatives to the human-induced death based on pain, discomfort, loss of physical or mental faculties, and also the future-looking speculation about these possibilities.

Now I combined legal and moral in the same sentence because that is also one way to consider the way in which law is or ought to be formulated. But, in fact, one can also claim that the two don’t need to overlap; law can exist simply as a system of rules that does not include moral repercussions and, if the two have a similar effect on behavior, it is merely a happenstance. Insofar as they are not overlapping, a moral argument can be used to criticize a law.

In formulating a law, then, and regardless of its relationship to a moral norm, the language that is used performs a significant function in directing the limits of the application of the ideas involved. And the language goes further by often challenging the existing holistic relationships in our individual and mental representations of the term. This is also why objective morality seems so nonsensical: in making a moral proposition one is assuming that the language and terms are identifiably externally and internally referential to the objective basis. It is an impossible task that results in either everyday revisionary squeamishness (“Well, sure, ‘do not kill’ should be ‘do not murder,’ but that might exclude killing in warfare or retribution because, well, look at the fate of the Amalekites,”) or a reversion to personal feeling over the matters at hand. Hardly objective at all.

Dignity, then, should be considered as part of this dynamic definitional structure. It has evolved in the legal framework to have at least three meanings, as Lois Shepherd analyzes in some depth in her article, “Dignity and Autonomy after Washington v. Glucksberg: An Essay about Abortion, Death, and Crime,” in the Cornell Journal of Law and Public Policy. For the topic of assisted suicide or euthanasia, SCOTUS and lower courts have used a definition that is in accord with the notion that the individual should be allowed to avoid extreme discomfort and loss of faculties. In so doing, they preserve their physical and mental dignity that arises from their autonomous and rational selves. Any concerns over the latter bring additional scrutiny as to whether they can be said to have autonomy.

The other ideas of dignity, though, include the right of a defendant in a criminal trial to represent herself. And, if given assistance from a court-appointed attorney, the assistant must act in a manner that preserves the perception of the jury as to the dignity of the defendant. And, finally, again related to the autonomy of the individual with regard to medical decision-making, that there it interferes with the dignity of a woman when denied the right to abort a fetus because such an action imposes a barrier to her autonomy and that autonomy has precedence over any case for the fetus to, as yet, have legal status as an individual.

These are arguable points as we all know in the struggles and opposition to abortion and assisted suicide rights. And it is just this dynamism in definitional limitations that has evolved through the legal engagement at the edge of dignity semantics.

(As a postscript to this post, I’ll just add that I’m not trying to specifically pull out legal positivism versus natural law distinctions. Instead, I think there may be an overlooked area of philosophy of language and its intersection with epistemology that could use some emphasis. Where the positivists might agree with me on the general disconnect between moral and legal justifications for laws, they might not have embraced the role of linguistic evolution that is apparent in the definition of terms like “dignity.” It is there, I suggest, that law gets shaped, as we can surmise from any consideration of “fairness” as a legal concept.)