Judging the morality of death

In his poem The Latest Decalogue, Liverpool-born poet Arthur Hugh Clough (1819-1861) satirised the morality of his time with a rewriting of the Ten Commandments. His rerendered Fifth Commandment reads:

‘Thou shalt not kill; but need’st not strive

Officiously to keep alive’.

Common law, like Clough’s commandment, accepts that there is a difference between ‘killing’ and ‘letting die’ and treats death resulting from a positive act differently from death resulting from an omission, save where there is a duty to act. However, one might argue that, in moral and ethical terms, there is little difference between ‘killing’ and ‘letting die’. In medical law, for example, letting a patient die by withdrawal of a feeding tube (which English courts have accepted is an omission rather than an act – Airedale NHS Trust v Bland (1993)) can be seen as taking a positive step which brings about the patient’s death.

Rosenberg analyses why criminal law draws the ‘Act-Omission Distinction’, digging deep into the philosophical, legal and policy justifications. In truth, the philosophical section can be repetitive. Much of it takes the form of analysing some of the philosophical theories and applying them to various scenarios. The philosophical section finds its feet with an analysis based on autonomy and – interestingly – the social contract theories of Hobbes and John Rawls, justifying the division by the reference to both autonomy and maintaining public order. This analysis is, so far as I can tell, utterly novel.

The legal section of the book has a particularly American slant. Rosenberg’s field of expertise seems to relate to that side of the Atlantic and as such is not directly applicable to English law. In terms of legal philosophy, however, it seems that there is little significant difference between the approach of the two jurisdictions, which he argues justify the Act-Omission distinction, on the practical basis that criminalising all omissions may impose criminal liabilities on too many people.

I would have liked to have seen a lengthier and deeper analysis of legal justification, but this is nevertheless an interesting read for those more philosophically minded.

James E Hurford is a solicitor at the Government Legal Department, London