Assisted dying and moral principles : the quest for just and legitimate norms in constitutional interpretation

Abstract

In this thesis the relationship between law and morality is examined, posing the question whether or not the law consists of - or to some extent at least includes - principles that can help an adjudicator to determine how the law ‘ought to be’ interpreted in a case where a moral dilemma arises and no legal rule clearly indicates a way forward. Initially, therefore, the relationship between law and morality is looked at from the point of view of representatives of (inclusive and exclusive) legal positivism, on the one hand, and the point of view of proponents of so-called principles theories of law, on the other. The latter theories postulate a consequential interaction between law and morality, holding that morals in actual fact constitute an element of law. Since principles theories furthermore propound to apply to Basic Law provisions in particular, these theoretical approaches are scrutinised more strictly than those that just seek to establish if (or to what extent) such principles are actually to be found in South African Constitutional Law. The study then turns to the morally and legally controversial question concerning the permissibility of currently prohibited forms of assisted dying under South African law, with a focus on competent terminally ill patients. The law as it stands is discussed, whereupon the position in a number of related and comparable jurisdictions is briefly considered in an attempt to detect ‘the right approach’ and/or the principles most applicable to the adjudicative balancing required when dealing with controversial issues such as the non-coercive termination of the life of a terminally ill, a comatose or an injury-ridden patient. Recourse to the law as it stands in other jurisdictions as well as skilful adjudicative balancing do not, however, provide any satisfactory final answers to all ‘end of life’ controversies. It is therefore necessary also to include points of view and lines of reasoning of moral philosophers in the discourse. The question that then emerges is which one of the many approaches discussed in this thesis can actually claim to be ‘the correct one’ for South Africa. Having dealt with this question and having identified ubuntu within the meaning proposed by Thaddeus Metz as ‘the correct’ approach in South Africa, this study concludes with an inquiry into the existence of constitutional requirements, reflected in the law, with the potential to be obstacles to a preferred approach.