American Journal of Law & Medicine

Rights discourse and assisted suicide.


The debate surrounding the legalization of assisted suicide(1) has been galvanized in recent years by reports of specific cases of assisted suicide, primarily involving physicians such as Kevorkian(2) and Quill,(3) and by impassioned pleas for legalization and assistance in suicide from individuals suffering in the throes of terminal or agonizing diseases, such as Sue Rodriguez.(4) Media attention on criminal trials of individuals accused of assisting in a suicide has heightened public awareness of the issue.(5) The constitutionality of criminal prohibitions on assisted suicide has been tested in various jurisdictions, and has recently been considered by the Supreme Courts of both the United States and Canada.(6) Following two narrowly unsuccessful attempts to enact dignified death provisions by referenda in Washington(7) and California,(8) Oregon voters passed the first of such proposed laws in November 1994, providing for physician-assisted suicide under certain specified conditions.(9) Attempts to introduce legislation to legalize assisted suicide in other jurisdictions have been galvanized by the success in Oregon.(10) A model statute has been drafted by a group of law professors, philosophers and medical professionals.(11)

The upsurge in interest in assisted suicide has occurred against a backdrop of growing concern over "modern medical death" which seems to "strip [individuals] of choice and dignity."(12) The use of advance directives and the judicial acceptance of the right to refuse (even life-saving or life-sustaining) treatment(13) have failed to diminish public anxieties surrounding this modern reality of dying.(14) Physicians' attitudes characterized by "a worry about malpractice, a zest for technology, a deep-seated moral belief in the need to prolong life, and the pressure of families and others, still often lead to overtreatment and an excessive reliance on technology."(15) Desire to take control of this modern dying process has manifested itself in renewed calls for the legalization of assisted suicide and voluntary active euthanasia.(16)

Individuals and organizations on both sides of the debate over the legalization of assisted suicide have been quick to frame their arguments in terms of rights. Attracted by the trumping(17) and attention-getting(18) effects of rights discourse and the powerful political impact of right-based arguments, proponents and opponents of assisted suicide have claimed a battery of different rights to support their various positions. In general terms, those in favor of the legalization of assisted suicide have stressed a "revitalized argument for self-determination, pushing the idea of autonomy and patient rights as far as they can go."(19) Those against such legalization have relied upon arguments concerning the right to life and, to a lesser extent, the right to equal protection.(20)

This article begins by enumerating different formulations of a right to suicide or assisted suicide. The discussion then moves from the kind of right claimed, to the basis of such a right, requiring a canvass of right-based arguments both in favor of and against the legalization of assisted suicide. Included, where appropriate, is a brief mention of any conceptual difficulties or limitations associated with the right at issue in the context of assisted suicide. The presentation of a multitude of conflicting and seemingly irresolvable right-based claims suggests the need to examine more closely the phenomenon of right-based arguments in the context of assisted suicide. The problems associated with such arguments are illuminated by looking at some of the critiques of rights which have gained popularity in recent years, and by discussing their applicability to the right-based arguments used in the assisted suicide debate. Such critiques suggest particular difficulties with right-based claims in this context. My agenda in this article is not to suggest solutions to these difficulties or to propose an alternative debate, but to illustrate common and serious problems which may impede the future debate surrounding the legalization of assisted suicide and prevent its consensual resolution.



As a preliminary matter, it must be noted that right-based approaches in favor of the legalization of assisted suicide can be couched in terms of either a right to suicide(21) or a right to assisted suicide.(22) Proponents of assisted suicide who rely on a right to suicide assert that such a right necessarily entails the impermissibility of prohibitions on assisted suicide.(23)

Similarly, arguments against the legalization of assisted suicide may reject either or both the right to suicide(24) or the right to assisted suicide.(25) In this article, I will maintain consistency with individual commentators' formulations. When speaking generally, I will refer to the `right to suicide or assisted suicide.'


Margaret Pabst Battin distinguishes three different ways in which a right to suicide can be formulated.(26) First, as a liberty right: the individual is free to commit suicide--she has no obligation not to do so. Second, as a right to non-interference: others have a duty not to interfere with the individual's suicide. Third, as a positive or welfare right: others have a duty to assist the individual with her suicide. This typology can also be applied to a right to assisted suicide.(27)

Most analyses of a right to suicide or assisted suicide either assume or assert that such a right must be either a liberty right or a right to non-interference,(28) in contrast to a positive or welfare right.(29) The latter formulation of a right to suicide or assisted suicide would necessarily and controversially entail a corresponding duty to assist.(30)

Constitutional rights are most often formulated in terms of negative liberty rights or rights to non-interference, rather than as positive entitlements or welfare rights.(31) Thus the right to freedom of expression or speech is traditionally interpreted to prohibit some or all interference with an individual's protected expression, but not to require that the state provide funds to facilitate the dissemination of protected expression.(32) Positive rights to shelter or necessities are found in some constitutional(33) and quasi-constitutional documents such as the United Nations Universal Declaration on Human Rights.(34)

Claims of a constitutional right to suicide or assisted suicide have generally been formulated in terms of a liberty right or right to non-interference.(35) Physicians involved in constitutional cases have asserted their own corresponding right to assist in a constitutionally protected activity without fear of prosecution.(36)


Right-based arguments in favor of assisted suicide are generally derived from some combination of the interrelated rights of self-determination, autonomy, privacy and liberty. Other such arguments include: the right to suicide or assisted suicide as one element of a fundamental right to dignity; the right to assisted suicide as a part of a commitment to equality rights; the right to suicide or assisted suicide as implicit in the right to freedom of conscience and religion; and the right to suicide as a necessary concomitant of the individual's property rights in her body or her life.

1. Right to Liberty

Liberty-based derivations of a right to suicide or assisted suicide can be in the form of either an intrinsic or instrumental justification. The intrinsic argument is that freedom is a basic good, and thus in the absence of harm to others which could outweigh the commitment to freedom in the particular instance,(37) individuals must be let alone to do as they wish.(38) Prohibitions on assisted suicide are restrictions on the individual liberty of both the person desiring assistance, and any potential assister. Thus, "there is a standing prima facie case for legaliz[ation] ..., and it is up to [its] opponents to show why [it] should be forbidden."(39)

The instrumental argument is that a commitment to freedom or liberty (again in the absence of direct and significant harm to others) protects another fundamental value such as moral pluralism or dignity.(40) The recognition that a pluralism of moral convictions exists in a secular society prompts the argument that individual freedom must be the pre-eminent value: "although one may not be able to agree about what constitutes good life, or good death, one can agree to let each make his own choices, as long as those choices do not involve direct and significant violence against others."(41) Alternatively, a commitment to dignity mandates a parallel commitment to freedom. Dignity, intimately connected with self-respect, requires that the individual lead her own life and make her own decisions.(42)

Whatever the foundation of the liberty-based right to suicide or assisted suicide, it is subject to the criticism that it is logically incoherent due to a fundamental paradox. This argument relies on the familiar slavery example from John Stuart Mill's On Liberty.(43) In the context of suicide, critics argue that suicide necessarily involves the complete renunciation of one's freedom and that it cannot be an exercise of one's right to liberty to alienate one's liberty.(44)

2. Right to Autonomy or Self-Determination

A commitment to autonomy or self-determination is generally considered inherent in any right-based morality:

   Rights-based views emphasize a view of persons as capable of forming 
   purposes, of making plans, of weighing alternatives according to how well 
   they fulfill those plans and purposes, and of acting on the basis of this 
   deliberation. Rights protect our exercise of these capacities, capacities 
   whose exercise is often associated with the notion of autonomy, independent 
   of how doing so promotes goals specified as valuable.(45) 

In a right-based morality, individuals have the freedom to define their own conception of the good within limits necessary for peaceful co-operation.(46) The derivation of a right to suicide from a general right to autonomy is self-evident: "The decision to exit life by one's own decree is more fundamental to the concepts of autonomy, freedom, and liberty than any other, for pivotal to the control of one's own life is the choice of electing to forego continued life."(47) Failure to respect the right to autonomy in the extreme cases of decisions involving life and death may impoverish the individual's other, perhaps less momentous, choices.(48) "If one must ... live or die as the state dictates, how much are the remaining choices worth?"(49) In the context of assisted suicide, the argument from a right to autonomy is closely linked to the concept of individual control of the dying process.(50)

Most proponents of an autonomy-based right to suicide are careful to articulate that not all suicides can be considered autonomous. For example, David Richards argues that there can be autonomous, rational suicide only when "the person's plans, assessed and subject to revision in terms of standards and arguments to which he or she gives free and rational assent, are better satisfied by death than by continued life."(51) These kinds of limitations on self-determination are subject to vigorous debate from both ends of the legalization spectrum.(52)

The autonomy-based derivation of a right to suicide or assisted suicide is also subject to an argument that such a rights claim is paradoxical. Many critics of assisted suicide argue that it is self-contradictory to exercise one's autonomy in such a way as to destroy the capacity for autonomy and its future exercise: "if autonomy and dignity lie in the free exercise of will and choice, it is at least paradoxical to say that our autonomy licenses an act that puts our autonomy permanently out of business."(53)

A further problematic aspect of the right to autonomy as the basis for a right to suicide or assisted suicide is the phenomenon that the possession of rights may encourage their exercise. If, as Joel Feinberg argues, it is the act of claiming one's rights which gives them their special moral significance,(54) then this phenomenon is not a surprising one. Feinberg suggests that human dignity is intimately connected with the recognizable capacity to assert such claims, and that the activity of claiming builds self-respect and respect for others and gives a sense to the notion of personal dignity.(55) Without denying the necessary connection with the act of exercising or claiming one's rights and one's dignity and self-respect, a more circumspect attitude towards the exercise of one's rights might be appropriate in the context of personal rights,(56) and particularly with regard to a right to suicide or assisted suicide. While knowledge that the individual possesses the right to suicide or assisted suicide may in fact help her to continue living,(57) autonomy proponents must be slightly wary of this tendency towards exercising one's rights when that exercise results in the individual's death, and ensure that dignity and self-respect are fostered by continued life, for as long as that is possible. To take a specific example, suicide might be legalized for the physically disabled on the basis of their autonomy rights--that is, on the grounds of increasing the range of options available to the them.(58) But claims to fostering autonomous choice, or to state neutrality as between those options--while its format as a right encourages the choice of that particular option--might ring distinctly false.

3. Right to Privacy

Arguments in favor of a right to suicide or assisted suicide derived from the right to privacy are closely related to those derived from the rights to autonomy and liberty. Suicide has been described as "the ultimate exercise of one's right to privacy."(59) Alan Sullivan uses the absence of a clearly articulated principled basis for the constitutional right to privacy to argue that one can infer from United States Supreme Court decisions connecting privacy with constitutionally protected liberty interests that "the right protects personal choices in areas historically screened from the state's interference."(60) Sullivan asserts that the decision whether to continue living is the quintessential example of a decision which demands protection under the right to privacy.(61)

In the United States, privacy-based arguments now rely on the Supreme Court's decision in Cruzan.(62) Proponents of the legalization of assisted suicide have argued:

   If the right to privacy protects the right to die naturally, it should also 
   protect the competent, terminal patient's right to choose a quick and 
   painless death. The difference between a terminal patient's choosing to 
   refuse treatment and choosing a faster means of dying does not offer a 
   basis for legal distinction. When a competent terminal patient chooses to 
   die, the state interests balanced against that patient's right to privacy 
   are virtually the same regardless of the means chosen.(63) 

4. Right to Dignity

While more commonly cited in moral philosophy circles(64) than in legal circles,(65) the right to dignity may also provide an argument in favor of the legalization of assisted suicide. A right to suicide can be based on a right to dignity,(66) or a right to be free from indignity.(67) Margaret Pabst Battin argues that dignity is the foundational basis of fundamental rights:

   Individuals have fundamental rights to do certain sorts of things just 
   because doing those things tends to be constitutive of human dignity.... 
   [B]ecause fundamental rights are rooted in human dignity, they are not 
   equally distributed.... [W]e have a right to suicide (if and when we do) 
   because it can be constitutive of human dignity, and ... this ... is the 
   same [basis] on which we have all other fundamental human rights. Even 
   though it may be very markedly unequally distributed, the right to suicide 
   is not an "exception" or a "special" right, or a right that is to be 
   accounted for in some different way; it is of a piece with the other 
   fundamental human rights we enjoy.(68) 

A right to suicide derived from a right to dignity is a more limited creature than the expansive rights derived from autonomy, liberty(69) or privacy discussed above. Such a right to suicide would be overridden in cases where the suicide does not promote dignity, on the grounds of the individual's lack of competence to exercise the right in a way designed to attain its end.(70) A central problem with a `right to dignity' approach to suicide or assisted suicide would undoubtedly be the difficulty of distinguishing dignity-constitutive suicides (or proposed suicides) from those which do not promote the individual's dignity.(71) This distinction may be easier to make retrospectively (looking back on the individual's life and death after her death)(72) than prospectively. It should be noted that the problem of the paradoxical nature of rights claims based on liberty or autonomy and involving death may be circumvented by the use of the right to dignity, if one accepts that an individual's dignity does not necessarily end at death,(73) and that living does not necessarily involve more dignity than dying or death.(74)

5. Right to Equality

Equality rights arguments in favor of the legalization of assisted suicide generally focus on those individuals or groups who are physically unable to commit suicide without assistance, such as the severely physically disabled,(75) or some terminally ill persons. Given that suicide is now a legal act in most jurisdictions,(76) the basic premise of such arguments is that individuals who would require assistance in order to carry out a decision to end their lives are denied the choice which is available to all other mentally competent adult persons. Such persons may argue that the criminal prohibition on assisted suicide has a disparate impact(77) on them by virtue of their physical disability and thus violates their right to equality or equal protection.(78) It is important to note that this argument would support only a right to assisted suicide for those unable to commit suicide without assistance, and would not entail acceptance of a more general right to suicide.

Equal protection arguments are also made in reliance on the right to refuse lifesaving or life-sustaining medical treatment. Proponents of assisted suicide

   [A]rgue that such refusal of treatment is essentially the same thing as 
   committing suicide with the advice of a physician [and] that for the State 
   to sanction one course of conduct and criminalize the other involves 
   discrimination which violates the Equal Protection Clause of the Fourteenth 

6. Right to Freedom of Conscience and Religion

Although not often asserted as the basis of a right to suicide or assisted suicide,(80) the right to freedom of conscience has been relied upon in the abortion context by both commentators and judges.(81) In general terms, the argument would be that for the state to interfere in the moral decision of an individual to take her life violates her right to freedom of conscience.(82) One might argue that, as is the case with abortion, the decision whether or not to commit suicide is essentially a matter of conscience. Evidence for this assertion could be drawn from the many arguments against the legalization of assisted suicide centered on the sanctity of life.(83) Although such arguments can be formulated in ostensibly secular terms,(84) their religious origins are still present in many modern uses, arguably reflecting an underlying belief that suicide is a sin.(85) For freedom of conscience proponents, such an argument must be recognized as representative of one conscientiously-held view, based on deeply felt religious values.(86) To accede to it would be "to endorse [and] also to enforce, on pain of a further loss of liberty through actual imprisonment, one conscientiously-held view at the expense of another."(87) In other words, to accept this argument would be to impose a certain set of religious values on individuals, in circumstances where there is no impingement on the rights of others to hold different beliefs.(88) The decision whether to take one's life is a deeply personal, moral decision. As Justice Stevens remarked in Cruzan, "[n]ot much may be said with confidence about death unless it is said from faith, and that alone is reason enough to protect the freedom to conform choices about death to individual conscience."(89) For the state to endorse and enforce one particular moral standpoint in any manner, where there is no countervailing interest (such as protecting the freedom of conscience, or indeed any other guaranteed freedom of other individuals) could therefore be argued to violate the individual's right to freedom of conscience and religion.(90) This argument would be subject to the limit also exposed in Casey in which Justices O'Connor, Kennedy and Souter stated that "though the abortion decision may originate within the zone of conscience and belief, it is more than a philosophic exercise.(91)

An alternative (and more limited) argument based on the right to freedom of conscience and religion is put forth by Matthew Previn. He argues that the humanist conception of the sanctity of life is a religious belief.(92) This belief would be consistent with assisted suicide in certain circumstances.(93) Thus individuals holding this belief would be eligible for exemption from any law which would burden the exercise of that belief, such as criminal prohibitions on assisted suicide.(94)

7. Right to Property

The right to suicide has also been framed in terms of the individual's property right in her own life or body. Such a formulation is not extremely common,(95) and is most often used in rebuttal against the assertion of a property right in the individual's life or body held by either God or the state.(96) In its simplest form, the argument is based on the assertion "it's my body" or "it's my life" to dispose of as I choose.(97)

This right-based argument suffers from certain conceptual difficulties, particularly the problem of whether life can be the object of a property right.(98) This is especially problematic in the case of suicide, which involves the destruction of the object of the purported property right--life. In this case, the destruction of the object presupposes or includes the owner's destruction, which is not usually the case when property is destroyed.(99) That is, "the owner is the destroyed property."(100)

The right to property argument in favor of suicide or assisted suicide may also be subject to certain limitations. Individuals do not have unlimited rights regarding the use of their property. For instance, one may not use one's property to harm another person or to destroy another's property.(101) Similarly, "some [acts of] suicide[ or assisted suicide] may violate the rights of other persons, though equally certainly some suicides do not."(102) Thus a parent of a young child may owe a duty of care to that child, or the child may have a right to be cared for which could override the parent's property right of disposition in this context. (103)


Right-based arguments against assisted suicide cluster around the right to life and the problem of its inalienability. Other right-based arguments include: the right to equality or equal protection; property rights in the individual's life or body held by either God or the state; and the right to autonomy.

1. Right to Life

Opponents of the legalization of assisted suicide derive support from human rights documents such as the Declaration of Independence, which describe the right to life as inalienable.(104) Proponents of this view often conclude that the right to life is of a special character, and does not possess the characteristic of waivability, (105) which is customarily assumed to be an aspect of any right in a right-based morality.(106) The non-waivability of the right to life renders any decision to take one's own life an attempt "to alienate the inalienable, to give away what cannot properly be given away."(107)

This position reflects a particular view of the meaning of inalienability. As Margaret Jane Radin has observed, "there is no one sharp meaning for the term `inalienable."(108) For proponents of the inalienable right to life in the context of assisted suicide, an inalienable right is a mandatory right. That is, the right-holder has no discretion regarding the exercise of the right--"only one way of exercising it is permitted."(109) A mandatory right to life imposes a duty on the right-holder to remain alive as long as possible, "or, at least, a duty not to take one's own life or not to cooperate with others in its taking."(110)

In contrast, assisted suicide proponents argue that the inalienability of a right does not make that right a mandatory one. According to this view, the right to life would be a discretionary right which can be voluntarily waived. The inalienability of the right to life would refer to the right's non-relinquishable nature--that is, the individual would not be able to relinquish the right to life,(111) although one form of exercise of the right would include the relinquishment of the object of the right--one's life.(112) "[T]he individual who chooses to die does not lose his or her right to life. To commit suicide is not to abridge one's right to life; it is to abridge one's life. ... Thus refusal to exercise one's right to life by committing suicide does not entail that one loses that right."(113)

To encapsulate the distinction between these two versions of inalienability, on the mandatory view both the right and its object are not relinquishable, while on the discretionary view, the right is not relinquishable, but its object may be relinquished.(114) In response to those who argue in favor of the discretionary inalienable right to life, mandatory right to life proponents often cite the special, primary character of the right to life, arguing that as a necessary precursor to the possession of all other rights, its special mandatory character of non-waivability is both explicable and warranted.(115)

2. Right to Equality or Equal Protection

Opponents of the legalization of assisted suicide rely on two separate but related arguments based on the right to equality or equal protection. The first focuses on the impact such legalization may have on already-marginalized and discriminated-against groups, particularly the physically disabled.(116) In its 1994 report entitled When Death Is Sought.' Assisted Suicide and Euthanasia in the Medical Context, the New York State Task Force on Life and the Law argued:

   No matter how carefully any guidelines are framed, assisted suicide and 
   euthanasia will be practiced through the prism of social inequality and 
   bias that characterizes the delivery of services in all segments of our 
   society, including health care. The practices will pose the greatest risks 
   to those who are poor, elderly, members of a minority group, or without 
   access to good medical care. (117) 

The public statement made by legalization might inappropriately encourage individuals to exercise their new option to commit assisted suicide.(118) The pressure on many physically disabled persons to forgo expensive and time-consuming care is already an unfortunate societal reality: "The legalization of assisted suicide will only increase this pressure. If legalized, it will become available, and if available, it will become standard for anyone, and anyone who declines to take advantage of what is reasonably available to all will be seen as unreasonable."(119)

Without denying the autonomy-based arguments in favor of a right to suicide or assisted suicide, the equality-based response suggests that such a right may be meaningless if the choice between available options is more apparent than real.(120) For those with physical disabilities who are not terminally ill, if the choice to continue living is illusory due to lack of care, financial constraints or gross societal indifference,(121) then an autonomy-based right to assisted suicide may itself be transformed, in effect, into a duty, in violation of the individual's equality rights (and indeed, her right to life).(122)

A different formulation of the right to equality in opposing legal assisted suicide concerns the form which legalization might take. If assisted suicide were legally restricted to certain groups of individuals, such as the terminally ill and those with severe physical disabilities, as is often proposed,(123) some have argued that such distinctions would be impermissible on equal protection grounds.(124) That is, to allow assisted suicide solely for the physically disabled, for example, could constitute "prejudicial treatment"(125) of the disabled--whose right to life might be seen as less worthy of protection than the right to life of the physically able--thus violating constitutional guarantees of equal protection.

3. Right to Properly

Two separate property right claims can be advanced against the legalization of assisted suicide. The first, neatly encapsulated in the oft-cited declaration that 'we are but stewards of what God has entrusted to us,'(126) argues that God has property rights in our bodies and our lives.(127) Thus the individual's sovereignty over her body and her life is strictly limited, by definition excluding the right to commit suicide, which would destroy God's property.(128) Such a property right would necessarily be stronger than the conventional notion of property rights which does not absolutely prohibit the destruction of another's property. In certain cases, for example, such destruction may be necessary to avoid greater harm to another.(129)

Obvious problems with an argument intimately connected to religious beliefs stem from the pluralistic nature of our society, exemplified by the right to freedom of conscience and religion.(130) Many commentators argue that religious arguments have no special force in a pluralist, constitutional democracy.(131) "[T]he concern not to offend God ... is an inappropriate consideration for a pluralistic society in which divergent and irreconcilable opinions concerning the desires or the existence of a deity exist."(132)

The second property right claim used in opposition to legalization of assisted suicide substitutes the state for God as the holder of a property right in individuals' lives. The argument that the state has a property right in individuals' lives has little currency.(133) It is most often presented only to be brusquely rejected in favor of an individual property right in life, or a general right of self-determination.(134) Given the prevalence of state interest analysis in the constitutional context, opponents of the legalization of assisted suicide often prefer to speak in terms of the `state interest in the preservation of life,' rather than the state's property right in individuals' lives.(135)

4. Right to Autonomy

To counteract the derivation of a right to suicide from the general right to autonomy, opponents of the legalization of assisted suicide sometimes argue that such legalization poses a threat to the individual's right to autonomy rather than enhancing or being consonant with it.(136) The concern is with the quality of autonomous choice in the context of decisions to commit suicide, along a spectrum ranging from the spectre of outright coercion,(137) to the problem of the social construction of choice in an environment in which legal assisted suicide is known to be an option,(138) and particularly if it is enshrined as a right.(139) The fear is that the legalization of assisted suicide, especially in a rights-based formulation, would send a message to already marginalized members of society that suicide is an acceptable, responsible or even expected option.(140) Such a message might potentially override the hitherto unconsciously accepted autonomous choice to continue living. "The social legitimacy and easy availability of effective assistance to commit suicide that would necessarily follow recognition of suicide as a "right" would ... contribute to a climate in which both subtle and obvious forms of duress would cause many who would not otherwise do so to choose suicide, whether or not they are mentally or emotionally disturbed."(141)


Having enumerated the various kinds and different formulations of right-based arguments in the debate surrounding the legalization of assisted suicide, the difficulties presented are self-evident: how can such competing and seemingly irreconcilable claims be resolved with any kind of societal agreement? Paralysis is an understandable response in the face of vociferous, strident and conflicting claims of individual rights. If we are not to simply throw up our hands and abandon the debate, or at least its present right-based incarnation, then some way to move forward through the thicket of competing claims must be found.

We may be understandably reluctant: to renounce the use of rights altogether, seeing much that is of actual and potential value in rights claims. "[O]n an individual level, a claim of right can be an assertion of one's self-worth and an affirmation of one's moral value and entitlement."(142) Mary Ann Glendon rejects the radical attack on rights (which advocates their abandonment) in favor of a re-evaluation of

   [C]ertain thoughtless, habitual ways of thinking and speaking about rights. 
   Let us freely grant that legally enforceable rights can assist citizens in 
   a large heterogeneous country to live together in a reasonably peaceful 
   way. They have given minorities a way to articulate claims that majorities 
   often respect, and have assisted the weakest members of society in making 
   their voices heard.(143) 

At least in the present political environment, most would agree, even if only on a superficial level, that there is some value in claims of rights.(144) The wholesale abandonment of rights discourse would have its most devastating impact on historically oppressed and marginalized groups in society.(145) "In discarding rights altogether, one discards a symbol too deeply enmeshed in the psyche of the oppressed to lose without trauma and much resistance."(146)

Patricia Williams suggests that "[w]hat is needed ... is not the abandonment of rights language for all purposes, but an attempt to become multilingual in the semantics of evaluating rights."(147) Before any progress can be made towards a way forward through the assisted suicide debate, a much more detailed analysis of the problems of rights discourse in this context must be undertaken. It is to this project that this article now turns.

In the following sections I attempt to identify common arguments or points of agreement among the various schools of rights critiques. I focus on specific critiques to the extent they apply in the context of the debate on assisted suicide, rather than recount the positions of the various schools of rights critique(148)--such as the Critical Legal Studies (CLS),(149) Feminist,(150) and Critical Race Theory (CRT)(151) critiques. I divide the critiques into two broad categories. The first contains arguments regarding the inadequacies associated with rights discourse when attempting to solve complex social problems, and particularly in the context of personal rights. This category includes the problems of indeterminacy, absolutism and the prevalence of slippery slopes, to name only the more familiar critiques. The second category questions the underlying assumptions of current rights discourse, querying the focus on individualism and autonomy, and raises concerns about the "missing language"(152) of community.


The critiques in this category focus on flaws in rights discourse which impede progress toward solutions to complex social problems. When considering such defects of rights discourse in the context of the debate over assisted suicide, it is helpful to divide the critiques into those which point out problems with rights discourse generally--such as indeterminacy, absolutism and lack of room for compromise--and those which concern specific problems with rights discourse in the context of personal (as opposed to civil) rights.

1. Problems With Rights Discourse Generally

From the various critiques of rights one can identify certain general themes which resonate in the context of the assisted suicide debate, requiring further examination. …

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