JURISPRUDENCE – PART A

LIBERALISM AND CONWAY CASE

Critically evaluate the strength of liberal principles of liberty and the uniqueness of each person in
light of the set case.

Introduction
In the post-modern world, the concept of liberty and personal autonomy is of significant importance.
Personal autonomy (PA) is not only a relevant factor in sociology, but also in the science of
jurisprudence. The legitimacy of law in the modern world is measured against the concept of autonomy
and whether there is a legitimate limitation of autonomy. In the Conway’s appeal to the Court of Appeals,
one the major grounds of appeal was that the courts had not placed enough importance on the concept of
PA which ensures the idea of liberty and uniqueness of each person. The answer below will evaluate the
principle of liberty and uniqueness and the extent to which the same is relevant for the set case.

Facts of Conway
- Conway suffered from terminally ill disease (MND) and had a prognosis of 6 months. He required
NIV for almost 23 hours a day
- He indicated his desire to end his life
- In order for him to commit suicide which would end his life peacefully, he will need assistance of a
doctor. s.2 of Suicide Act 1961 prohibits a person from assisting another in committing suicide.
- Conway challenges that s.2 of 1961 Act is incompatible with Art.8 of ECHR.
- The Divisional Court had rejected his application, and hence he applied to the COA for review/
appeal
Question for the jurists
- Should the law be such that it allows such doctor assisted suicide / physician assisted suicide?
- What factors should the lawmaker take into account when making a law allowing or prohibiting
PAS?
Religion Based Law
[The early prescriptive theorists explained that law is based upon religion and the religion gives authority
to the law. Laws were made in accordance with religion and the validity of a particular norm as a law
would be measured against the religious texts.]

[Legitimacy of the law was seen in light of the religion]

[Importance of religion in post-modern world is limited]

Morality & Law

Devlin Argument: Law should be based on collective morality of the society
Utilitarian Argument:
Law should be based on the largest benefit for the largest number of people
Liberal:
Law cannot be authoritative. Authoritativeness leads to defeating uniqueness and diversity. Law cannot
be based on collective morality as there is no collective morality.

JS Mill argument – law should only take away freedom when an individual ‘harms’ another.

Hart – Devlin Debate

Liberal: Morality:
- Uniqueness - Devlin: Preserves society (without which
- Diversity man cannot live)
- Modernity
- No consensus on morality
- No rationality behind morality
Practical Situations
In most cases, the liberal, moral and utilitarian arguments are not in conflict with each other. But in cases
as Conway, it is.
PAS - Moral arguments:
- Life is a sacred gift of God. Any life taken away is a breach of God’s sacred trust
- Against the general society’s morals
- It will impact the doctor-patient relationship

Utilitarianism – PAS
- PAS not to be allowed as this would undermine medical advancements

Liberal Arguments
- Death with dignity
- Right of self-determination
- It is not against the harm principle

Rule Utilitarian Arguments

Rule Utilitarians believe that law should be made in a manner in which the society’s larger interests are
protected, even if the rule-following maybe disadvantageous in few situations.
Generally, law prohibiting suicide is beneficial for the society, hence a ban on PAS is also justified
Law in UK (Pre Conway)
- Pretty
- Purdy
- Nicklinson
- S.2 of 1961 Act – reaffirmed by CoJA 2009
- Falconer Bill/ Joffe Bill/ Hayward/ Marris bill

All cases reflect the courts reluctance to disregard P’s law

P’s view: Liberal / Moral/ Utilitarian/ Paternalistic/ Authoritarian??

P decided not to change the law because change in law would give a negative message to the weak and
vulnerable in the society.
P was paternalistic or moral or authoritarian

Case Judgement – Divisional Court

Discuss the major points of judgement over here

- s. 2 is necessary to promote the aim of protecting weak and vulnerable, sanctity of life, trust between
doctor and patient
- P’s democratic mandate
- S.2 strikes a fair balance

Analysis: Liberal view or moral view or utilitarian view?

CoA Decision –
Discuss the major points of judgement over here
- P to decide because of moral and ethical issues
- Wider consultation will be possible

Analysis: Liberal view or moral view or utilitarian view?

Decision reveals that the courts recognize that the issue is based upon ethical and moral basis and the P
is better placed to decide it.

Carl Wellman View on PAS

JJ Thompson View on PAS

Personal Stance
Compare Bland/ abortion with PAS
If that can be allowed, why not PAS

Theory of Justice
(if question is connected to justice – what is justice and liberty?)

John Rawls arguments about what is meant by justice.

- Negative Aspect: Division of social goods should not be based upon factors not in control of
individuals
- Positive Aspect: Social goods should be equally distributed unless inequality is better for everyone

‘Right to life’ is a ‘social good’ and everyone should have it equally. However, if inequality is good for
everyone, then we should move towards inequality. In case of PAS, the right to die for Terminally ill
creates inequal right to life – this is good for everyone (the one dying and the rest of the society) – hence
PAS should be allowed

Is the Conway case achieving justice (as per Rawls)