On February 26th of this year, Germany’s Federal Constitutional Court overturned the legislation of 2015 that banned the provision of assisted suicide by ‘commercial’ organisations, opening the door to full legalisation of euthanasia in Germany.
What makes this judgement so extraordinary is that it does not merely alter the elements of a piece of legislation but reads into the German constitution a ‘right to self-determined death’. In Germany, where the last great legalisation of euthanasia was carried out by the Nazi state in order to eliminate those considered burdensome to society, a group of unelected judges have taken it upon themselves to invent a right to euthanasia and impose it on all 80 million Germans, without bothering to consult their elected representatives.
We are used to thinking of America and its antique constitution as the source of judicial activism, in which politically appointed judges seek to legislate from the bench, and where contentious matters such as bans on school prayer and a right to abortion have been ‘discovered’ in constitutional provisions that could never have been intended to include them. Europe, with its far more modern constitutions and more ‘rational’ and co-operative politics seemed immune to such things.
But no longer. In 2009, for example, the ECHR in Strasbourg ruled that Italy’s placing of crucifixes in its classrooms infringed the human rights of students. With Tony Blair’s removal of judges here from parliament into a newly invented Supreme Court, and the implementation of the 1998 Human Rights act, we acquired our own set of controversial provisions, with ever broadening, ever deeper judicial review of legislation setting up regular court battles between the government and various activists. Most controversially the proroguing of parliament was recently deemed unconstitutional, temporarily putting the government, parliament and judiciary at odds with one another, and the judges having declared themselves to be on top. The balance of the liberal constitutional order is in profound trouble.
We ought to be outraged by courts that engage in constitutional innovation and bypass or undermine the political process. But we should also understand that they are filling a political lacuna. Politicians have tried to avoid hard decisions which require a degree of knowledge of about philosophy, history and ethics that they increasingly do not possess. The failure of a class is always the failure of an upbringing, and our elite grew up in the shade of a post-war political order, like America’s own reconstruction era, born out of emergency and aimed at preventing a repeat of past horrors. Germany’s constitution, its ‘Basic Law’, was published around the same time as the European Convention on Human Rights. The idea of human dignity which was at the centre of both documents owed much to a humanistic Christian vision of the human person as sacred and inviolable. The concept of ‘subsidiarity’ that informed both documents is likewise traceable to Catholic social teaching.
The constitutional and legal framework of Europe was similarly written by Christians. When the Christian socialist and founding member of the CDU Karl Arnold affixed his signature to the ‘Basic Law’ of Germany, he can hardly have imagined that human dignity would one day be interpreted as including the ‘right’ to be killed by a doctor using lethal injection. It is no less implausible to imagine the generally intensely religious abolitionists who passed the fourteenth amendment to the US constitution putting their name to a constitutional right to abortion. Some will commend the rights that judges have ‘discovered’ in our constitutions, some will violently disagree. But we should all be deeply concerned with how and why such changes are made in courtrooms rather than by parliaments. Something sinister occurs when decisions are made by judges instead of politicians. Changes that ought to be conscious and willed, that should animate society, are instead passively implemented as if our entire constitutional order were a rudderless boat, helplessly swept along by currents outside of its control.
Thus, the current constitutional crisis, in which judges rewrite their roles in our constitutions and politicians become technocrats who set targets and timetables is the product not of new and evil ideologies, but of an overwhelming absence. Standing behind every lawmaker and judge was once a vast invisible congregation of ideas and philosophies which they could call upon to make of the dead letter of the law a living system of justice. Terms like ‘human dignity’ or ‘subsidiarity’ have been written into law, but they gain their meaning from deeper sources than mere precedent or convention. A Christian and classically humanist term like ‘human dignity’ will always be profoundly contested. Yet a shared cultural patrimony ensures that such contestation is connected directly to ordinary language, to the discourse of pub, playground and parliament, and does not acquire a new alien and alienated existence as a term that exists only in courtrooms. Once legal terminology is a closed discourse, on the other hand, it becomes a discourse of power and coercion in which words mean whatever judges say they mean, as if they were so many Humpty-Dumpties sitting precariously on a wall and not securely on a bench.
In consequence we are forced to ask whether rights-based politics has proved fatal to European politics. The seventeenth-century idea of ‘natural rights’ is linked to a libertarian notion of the rights of property owners, and the vision of the human person as an autonomous being alienated from his community and from collective structures. The increased extension also of Lockean rights of ‘self-ownership’ results both in an intensified clash of incompatible rights and in claims for legitimate actions upon one’s own person that seem to impair our sense of human status in general. This may well have interpersonal consequences: if we view suicide neutrally, does this not readily slide into a neutrality about encouragement to suicide scarcely distinguishable from murder?
In the post-war context by contrast, as Samuel Moyn has chronicled, rights were somewhat removed from their originally libertarian context and embedded in a Social and Christian Democratic milieu. Rights of autonomy were both supported and qualified by extensive government programmes to provide healthcare, housing, poverty-relief and free education to all in order to promote objective human flourishing.
Yet the new linkage of objective dignity to subjective rights was also ambivalent. In trying to construct an inviolable firewall against oppression and totalitarianism, the rights-focus shifted a large part of political discourse outside of politics. It sought to encode essentially metaphysical and ontological claims about the value of human life as safely ‘neutral’ and secular rights, that could be embraced by those of any persuasion.
As religion has receded, these rights have regained an aura of sacrality now outside of the rational superstructure of philosophy and theology. They are newly regarded as beyond criticism and beyond discussion, and the high priests who are their sole guardians are the judges. Cynically or naively, activists, jurists and politicians are using the veil of elevated neutrality that covers human rights discourse to conceal dramatic political shifts and movements. Fundamental questions about what it is to be human are being decided in courtrooms, from the judgement of a British court that thinking that ‘transwomen are not biological women’ represents discrimination to that of the American Obergefell ruling of 2015 on same-sex marriage.
Just as a rights culture based on individual autonomy rather than groups has taken hold, so the economic world underwritten by Christian values has receded. The post-war promise of embedded civil rights, of a society that actually delivered a dignified life rather than one that merely avoided violations of dignity, was historically embedded in the great social programmes of the 1940s-60s, and by new forms of social market or social democratic organisation. But now more and more of our economic life has been removed from political oversight, even as corporations proclaim themselves standard-bearers for ‘human rights’ and eagerly embrace a ‘woke’ diversity.
Legal constitutions are heavily dependent on consensus, a strong civil society and a shared ethical language. The loss of all three has accordingly prompted a retrenchment of power and decision-making to a new elite class of middle and upper class professionals and technocrats, who – whether formally ‘liberal’ or ‘conservative’ – share a consensus on policy, a series of in-group jargonistic discourses, and a monopoly on social capital.
Standing in their way, despite their controlling of the majority of institutions, is politics itself. Democracy long precedes liberalism, and is not strictly necessary to it. The new concentration of power has not been a conscious power grab, but it is being experienced as such by many ordinary people. This conspiratorial view is now much encouraged by a new generation of populists and demagogues. But whether these politicians truly wish to break open the liberal order is another matter. Some naively wish to return to an earlier social democratic phase, others opportunistically trade on populism in order to secure merely a redoubled oligarchy, while others may actually desire a return to the fascism that liberals claim to fear. If we want to avoid those things and to reintegrate executive law with judicial decision, then we must find a way to reconcile populaces with their elites and rebuild the realm of mediation that used to exist between them.
That means recapturing the lost patrimony, the missing ideas, the old bustling diversity of thoughts and words in genuine debate. But that cannot happen in a vacuum. It also means developing new structures, new constitutional interpretations which can succeed where the old post-war order has failed. From where will the cultural energy and renewal for this now arise?
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