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Should judges decide on the right to die?

Wednesday, 10 October 2018 - 9:15am

In an 8 October 2018 letter to The Times newspaper, Nigel Biggar offered an incisive response calling into question Baroness Mallalieu's insistence that the courts rather than parliament is the proper locus for the adjudication of the public right to assisted dying. See the Letters to the Editor here.

For more information on the Assisted Dying (No. 2) Bill 2015-2016 presented by Rob Marris, see the attached pdf here.


Biggar's letter in full:

Sir, Baroness Mallalieu argues that judges should intervene when a timorous parliament avoids making difficult decisions such as granting a right to “assisted dying”. But the UK parliament has not avoided such a decision. It has deliberated on the issue many times in the past decade and only three years ago the Marris bill, which would have legalised assisted suicide, was overwhelmingly defeated by 330 votes to 118.

Deciding whether to invent a right to assisted suicide involves judgments about ethical issues and social effects. Judges, as experts in the law, have no special authority in either ethics or social prediction. They also necessarily suffer from forensic myopia, being able only to consider the evidence that litigating parties present. Unlike parliamentarians, they cannot commission comprehensive inquiries.

When parliament makes a controversial decision, dissenting citizens can forbear, knowing they have a political opportunity to reverse it. But when such a decision is made by unelected judges, the dissenter will view it as an act of tyranny. The judicial presumptuousness that Baroness Mallalieu commends would be the surest way to import America’s cultural civil war.

Nigel Biggar
Regius Professor of Moral and Pastoral
Theology, University of Oxford