A Cross-Cultural Historical Case against Planned Self-Willed
Death and Assisted Suicide
Katherine K. Young*
Some traditional cultures (India, China, Japan,
Greece and Rome) came to legitimate, at a certain
period of their history, planned self-willed death for
specific reasons. By contrast, they implied (and some-
times stated explicitly) that spontaneous suicide out of
despair, fear, rage or passion was unfortunate and to be
discouraged by sbciety, and was therefore illegitimate.
Even though there was an attempt in all of these cul-
tures to create finn boundaries around so-called legit-
imate self-willed death and to limit the types of
motives, methods and people who were allowed to do
this (and therefore the numbers), there is empirical
evidence of a slippery slope. This is indicated by an
increase in the types of motives, methods and groups
sanctioned by religious, philosophical, legal or politi-
cal authorities. It seems, moreover, that these slippery
slopes occurred when some of the following condi-
tions were present: a large aging population; unstable
social conditions creating a desire for control; legiti-
mation associated with a central societal, religious or-
philosophical value; devaluation of the body (especi-
ally when its elimination was considered penultimate
to the attainment of heaven or liberation); warfare; tol-
erance of suicide; intolerance of vulnerable groups;
cultural contact; interreligious competition; advocates;
or an easy means. There is some evidence of phy-
sician-assisted suicide in ancient Greece and Rome
that may have contributed to a slippery slope.
From the evidence presented, it seems that there is
a real possibility of a slippery slope if planned self-
willed death and physician-assisted suicide are legiti-
mated, especially if certain social conditions are-pres-
ent. Today, some social conditions that may contribute
to a slippery slope-
such as a large aging population,
legitimation associated with a central societal value (in
this case, freedom and autonomy), and rapid social
change –
are already present. No society can rule out
the possibility of a slippery slope developing after
legitimation of self-willed death, because no society
can rule out future situations that contribute to such
slopes. This suggests that it may prove better in the
long run not to legitimate self-willed death, even –
though compassion for those who are suffering ex-
treme pain or recognition of a person’s autonomy
might seem initially to be a good reason for a society
to take this step.
Certaines cultures traditionnelles (lnde, Chine,
Japon, Grace et Rome) en sont venues a legitimer, A
une certaine 6poque, ]a mort deliberee et planifi.e
pour des raisons spdcifiques. Par ailleurs, elles sous-
entendaient (et parfois, formulaient explicitement) que
le suicide spontan6 provoque par le desespoir, Ia
crainte, la rage ou ]a passion etait regrettable et devrait
etre d6courage par la socite ; bref, ce type de suicide
etait illegitime. Meme si, dans chacune de ces cultures,
un effort 6tait fait pour delimiter l’etendue de cette soi-
disant mort deliberee et l6gitime par Ia limitation des
motifs la justifiant, des methodes et des personnes
autoris6es (c’est-h-dire leur nombre), l’exprience
semble demontrer qu’il existe bel et bien un effet d’en-
tranement. C’est ce que tend A demontrer ]a multipli-
cation du nombre de motifs justificatifs, de methodes
et de groupes sanctionn~s par de telles autoritds reli-
gieuses, philosophiques ou politiques. En outre, il
semble que ces effets d’entranement apparurent
lorsque certains facteurs furent reunis : une population
vieillissante nombreuse ; des conditions sociales insta-
bles engendrant un d6sir de contrfle ; une 16gitimation
associde A une valeur centrale sociale, religieuse ou
philosophique ; Ia devaluation du corps humain (parti-
culirement A I’epoque oh son dlimination dtait consi-
der6e comme l’etape pnultime precedant l’entrde au
paradis cdleste ou la liberation) ; ia guerre; la told-
rance au suicide; l’intol6rance face aux groupes plus
vulndrables ; le choc des cultures; la rivalitd entre dif-
ferentes religions; les avocats; ou la facilite d’acces
aux mdthodes. Certains elements de preuve tendent A
demontrer la presence du suicide m&Iicalement assist6
h Rome et dans la Grce antique, ce qui pent avoir
contribu a creer cet effet d’entrainement.
Partant de ces elements de preuve, i apparait que
nous risquions fort de creer un tel effet d’entrane-
ment, si la mort ddlibdrde et planifie, et le suicide
m~dicalement assiste sont legitimes et ce, surtout dans
la mesure oh certaines conditions sociales sont pr6-
sentes. En fait, de nos jours, certaines d’entre elles
sont deja presentes –
telles que la population vieillis-
sante, la legitimation associe h une valeur sociale
centrale (dans ce cas Ia liberte et l’autonomie), ainsi
que les changements sociaux rapides –
et peuvent
contribuer A creer un effet d’entrainement. Aucune
societe ne peut dliminer la possibilitd qu’une telle
situation se developpe suite A la legitimation de la
mort delibr6e, puisque aucune societ6 ne peut elimi-
net les situations futures contribuant a crder de telles
conditions. Ceci porte A croire qu’A long terme, il
serait preferable de ne pas legitimer la mort delibere
meme si, de prime abord, la compassion envers les
personnes aux prises avee d’extremes souffrances et
la reconnaissance de l’autonomie de la personne
semblent plutt encourager la societe 4 adopter une
demarche opposee.
McGill Law Journal 1994
Revue de droit de McGill
To be cited as: (1994) 39 McGill L.J. 657
Mode de rdfdrence: (1994) 39 R.D. McGill 657
I.
II.
Jainism
Brahmanism (Hinduism)
India (6th-4th Century B.C.E.)
1.
2. Buddhism
3.
India (4th Century B.C.E…2Oth C.E.)
1.
2. Brahmanism (Hinduism)
3.
Jainism
Buddhism
B.
C. East Asia (4th-2Oth Century C.E.)
McGILL LAW JOURNAL
[Vol. 39
Synopsis
Introduction
Planned Self-Willed Death in Eastern History and the Question of a
Slippery Slope
A.
Planned Self-Willed Death in Western History and the Question of a
Slippery Slope
A. Greece (The Classical and Hellenistic Periods: 5th-ist Century
B.C.E.)
B. Rome (The Republican and Imperial Periods: 3rd Century
B.C.E.-5th Century C.E.)
M. Stopping the Slippery Slopes
Conclusion
* I am grateful to the McGill Centre for Medicine, Ethics and Law for its support of this research,
in particular, to Dr. Margaret Somerville, Director, who has provided valuable legal and medical
insights, and to the Donner (Canadian) Foundation’s generous grant to the Centre. I am also grate-
ful to Dr. F. Lowy, Director of the Centre for Bioethics, University of Toronto, for contributing so
generously to the support of my sabbatical research (1990-91) and for the very valuable discussions
that made this article possible. I wish to thank Dr. Peter Singer and Dr. Eric Meslin, of the same
Centre for Bioethics, for their helpful discussions; Dr. Stephen Menn of the Philosophy Depart-
ment, Dr. H. Patrick Glenn, Director, Institute of Comparative Law and Dr. Ian Henderson of the
Faculty of Religious Studies, McGill University, for critically reading the manuscript: and Dr.
Richard Hayes and Dr. Victor Hori, also of the Faculty of Religious Studies, for drawing my atten-
tion to relevant Buddhist sources and discussing problems of interpretation and terminology.
Finally, I wish to thank Harold Wilson, who was my research assistant in the summer of 1991-92,
for helping me to collect relevant materials to document self-willed death in the Greek and Roman
traditions and for discussing aspects of Western philosophical thought that impinge on the topic.
1994]
Introduction
CASE COMMENTS
In the majority decision of the Supreme Court of Canada in Rodriguez v.
Canada (A.G.), Justice Sopinka held that
[s]ection 241(b) has as its purpose the protection of the vulnerable who might be
induced in moments of weakness to commit suicide. This purpose is grounded in
the state interest in protecting life and reflects the policy of the state that human
life should not be depreciated by allowing life to be taken.’
He goes on to state that
attempts to fine tune this approach by creating exceptions have been unsatisfactory
and have tended to support the theory of the “slippery slope”. The formulation of
safeguards to prevent excesses has been unsatisfactory and has failed to allay fears
that a relaxation of the clear standard set by the law will undermine the protection
of life and will lead to abuses of the exception.2
In this article I will present cross-cultural historical evidence from India, China,
Japan, Greece and Rome which suggests that legitimation of planned self-willed
death has tended to a “slippery slope” over time (especially when combined
with an underground phenomenon of assistance by physicians as in the West),
and that this should make us wary of such legitimation today.
At the outset of this discussion, it is important to define some key terms.
There is considerable debate over terminology today, in part because the very
construction of terminology participates in the construction of reality.3 There is
an even greater problem with terminology when one examines historical and
comparative data, for different cultures have different concepts of death and, of
course, different terms for them in different languages. Nevertheless, several
types of self-willed death are found in various cultures: (1) suicide, here defined
as an event motivated by overwhelming despair, fear, rage or passion, often
described as spontaneous, irration 1 and unfortunate; (2) assisted suicide involv-
ing the help of a physician and considered illegitimate by those in authority; (3)
legitimate self-willed death,-a planned death motivated by one or more sup-
posedly good reasons that have been accepted by religious, philosophical, legal
or political authorities within very specific boundaries; (4) assisted self-willed
death involving the help of religious or military figures (though rarely physi-
cians) and considered legitimate during a certain historical period;4 (5) death
1[1993] 3 S.C.R. 519 at 595, (sub nom. Rodriguez v. British Columbia (A.G.)) 107 D.L.R. (4th)
342 [hereinafter Rodriguez cited to S.C.R.].
21bid. at 613.
3See M.A. Somerville, “The Song of Death: The Lyrics of Euthanasia” (1993) 9 J. Contemp.
Health L. & Pol’y I at 2-15 [hereinafter “The Song of Death”].
4I have consciously avoided the term “euthanasia” in the following discussion and have
employed instead the expressions “planned self-willed death” and “assisted self-willed death”.
This approach avoids the emotional associations of the Nazi practice of euthanasia and broadens
the discussion beyond one particular and familiar case. By examining the context of self-willed
death (rather than other-willed death, as in the full-blown Nazi practice), there is greater opportu-
nity to detect a “family of resemblances” by stretching the parameters of the concept and charting
its varieties across cultures. Because the concepts of planned self-willed death and assisted self-
willed death are focal to current calls to legalize physician-assisted suicide, their historical ante-
cedents are worthy of consideration in the current debate, as will be noted later in this article. (Even
Hitler used the example of assisted self-willed death to attract physicians and psychiatrists into tak-
REVUE DE DROIT DE McGILL
[Vol. 39
that is indirectly caused by withholding or withdrawal of treatment when treat-
ment is not beneficial; and (6) death that is indirectly caused by medication to
relieve pain but which may unintentionally shorten life.5 The latter two belong
to the domain of modem medicine.
The other key term to be defined is “slippery slope”. “Slippery slope” is
defined in this article as the probability (not necessity)6 that once there is legit-
imation of self-willed death (involving one type of motive, means or group),
this may lead, given certain societal conditions, to more types of self-willed
death, involving other motives, means and groups. There are conceptually and
potentially two phases to a “slippery slope”. The first phase is the slope indica-
ted by an increase in the types of self-willed death. The second phase is the
slope initiated by the transition to other-willed deaths mandated by the author-
ities to eliminate certain groups. The critical juncture for an escalation of self-
willed death to other-willed death is the legitimation for a certain group, such
as physicians, to assist in the killing of people by the provision of deadly drugs
or other assistance, thereby creating an intermediary step between suicide and
homicide, with its concomitant ambiguity regarding motive.
A “slippery slope” implies that there is a relation among the examples.
These may be due to some of the following: (1) cultural contact or inter-
religious competition leading to the exchange of ideas and practices, especially
in a shared social, economic and political milieu that causes common problems;
(2) the psychological tendency for people to assimilate cases, even when they
involve “fallacious assimilation, mistaken use of precedent, and unwarranted
cause,”7 if they fulfil some need or satisfy some desire, or express some central
value of the society; (3) interested agents who help to popularize the practice;
(4) the use of reiterative arguments to include more and more examples; (5)
vague concepts leading to more applications; and (6) the need to treat similar
cases consistently and to avoid faulty analogies and bad precedents.
ing the first important step toward killing an “undesirable” person.) This approach of searching for
a “family of resemblances” related to self-willed death also suggests that analogies can be made,
for the similarities outweigh the differences (by contrast, when the extreme case of Nazi euthanasia
is held as the locus classicus of euthanasia, there is a tendency to dismiss all other examples of
self-willed death as false analogies and therefore not related to the possibility of a slippery slope).
5Compare these definitions to the terminology provided by the recent Dutch guidelines on med-
ical decisions concerning the end of life (“MDEL”): “(1) Non-treatment decisions (NTD), the with-
holding or withdrawal of treatment in situations where the treatment would probably have pro-
longed life, (2) alleviation of pain and symptoms (APS) with opioids in such dosages that the
patient’s life might have been shortened, (3) euthanasia and related MDEL, the prescription, supply
or administration of drugs with the explicit intention of shortening life, to include euthanasia at the
patient’s request, assisted suicide, and life-terminating acts without explicit and persistent request”
(PJ. van der Maas et aL, “Euthanasia and Other Medical Decisions Concerning the End of Life”
(1991) 338 The Lancet 669 at 670). See also M.A. Somerville, “The Definition of Euthanasia –
A Paradoxical Partnership” (1991) 3 Bioethics Research Notes 17, and her criticism of the Dutch
definitions in “The Song of Death”, supra note 3 at 2-15.
6According to slippery slope theories, even a small change in the status quo may lead to an esca-
lation to something harmful. We are speaking here of the probability of a slope, not the necessity
of one. See W.H. Nielson, “The Slippery Argument against the Legalizations of Voluntary Eutha-
nasia” (1987) 18 J. Social Philosophy 14.
7T. Govier, “What’s Wrong with Slippery Slope Arguments?” (1982) 12 Can. J. of Philosophy
303 at 316.
1994]
CHRONIQUES DE JURISPRUDENCE
The present study is based on an empirical approach to slippery slopes (and
so avoids many of the philosophical arguments that dismiss claims of the pos-
sibility of a slippery slope based on faulty reasoning, false analogies, and so
forth).’ This empirical approach involves documentation of the fact that self-
willed death comes to be legitimated at a certain point in time in a culture and
that over time the types of motives, methods or groups increase. (Such increase
implies an increase in the total numbers of people involved, though this is
impossible to document from ancient texts.) There is also attention to docu-
menting whether there is assistance for self-willed death and whether vulnerable
groups are involved, for these are clues to the serious escalation of a slope.
Finally, there is an attempt to examine what links the various examples, to qual-
ify them as contributions to a slope rather than as isolated examples that appear
coincidentaly. Argument over the relevance of past slippery slopes to the cur-
rent debate regarding whether physician-assisted suicide should be legitimated
brings the problem of proper and improper analogies centre-stage, for the dis-
cussion has moved from fact to possibility.
How did self-willed death come into existence? There are several explana-
tions. (1) It was a way to cope with a difficult dying process, and may be as old
as homo sapiens.’ (2) It was a survival tactic of those small-scale societies that
were constantly on the move and could not jeopardize their safety by caring for
immobile or slow individuals. (3) It belonged to a tradition of warriors killing
themselves (rather than allowing themselves to be killed when defeated by their
enemies) and military oaths of loyalty to follow a leader even in death, which
dates back to the development of organized warfare. Since the wives of warriors
were often captured, raped and used as slaves, they too sometimes preferred
self-willed death, especially after their husband’s death in battle.” In fact, self-
SFor a criticism of the slippery slope argument, see Govier, ibid. Govier, after analyzing prob-
lems related to conceptual, precedential and causal fallacies, notes that the best arguments are
causal ones that are based on real empirical claims, and that slopes in any case may occur because
of the psychological fact that people are inclined to group cases together even if the analogy is
faulty (ibid. at 316). See also G.W. Trianosky, “Rule – Utilitarianism and the Slippery Slope”
(1978) 75 J. of Philosophy 414.
9It is difficult to document this theme in prehistory. Anthropological evidence of contemporary
small-scale societies, which may bear resemblance to prehistoric societies, shows that self-willed
death is very rare in some. This may be related to the fact that a suicide’s corpse is denied burial
or proper funeral rituals, for its ghost is considered malevolent. But self-willed death is prevalent
in other small-scale societies. In them, people seem to take their lives when they have experienced
“disappointed love or jealousy; illness or old age; grief over the death of a child, a husband, or a
wife; fear of punishment; slavery or brutal treatment by a husband; remorse, shame or wounded
pride, anger or revenge” (E. Westermarck, “Suicide: A Chapter in Comparative Ethics” (1908) 1
Sociological Rev. 12 at 13). These suicides seem to be spontaneous.
“>There is only indirect evidence for this hypothesis that planned self-willed death first became
popular in warrior circles. In India, the first documented example of sati (reported by the Greeks)
appears only in the 4th century B.C.E., though there is an allusion to it in the earliest Hindu text,
the Rgveda (written sometime between 1800 and 1200 B.C.E), for the wife in the funeral ritual lies
down bv her dead husband and then is told to arise. The fact that planned self-willed death was
legitimated first in Jainism, which itself had developed in warrior circles, is one clue to its warrior
origins. And the fact that Buddhism, which also developed in warrior circles in this period, rejected
-it after considerable debate, is still another clue that it was already an issue. Finally, several cen-
turies later, the Hindu text, the Mahdbhfirata, referred directly to self-willed death by warriors. It
McGILL LAW JOURNAL
[Vol. 39
willed death in many cultures, including India, China, Japan and the Roman
Empire, was common in warrior circles, likely for similar reasons, and became
embedded in the heroic idiom of honour and shame.” If heaven or immortality
were offered as a reward for death in battle, self-willed death may have become
a substitute for death in battle for old warriors who had managed to survive. (4)
It was a solution to the problems created by the fact that life-span increased dra-
matically from about thirty years, making debilitating old age and lingering ill-
ness on a large scale a new phenomenon for human communities, especially
because medicine was still a fledgling “art” and could not be counted on to
relieve pain.’2 (5) It was related to the development of other-worldliness and
asceticism; the body became less of intrinsic worth and more of instrumental
value for the attainment of transcendence. Hence, some ascetics eliminated the
body through self-willed death to hasten the realization of enlightenment or sal-
vation. ‘3
I. Planned Self-Willed Death in Eastern History and the Question of a
Slippery Slope
A.
India (6th-4th Century B.C.E.)
1.
Jainism
Planned self-willed death can be traced in the historical record of India
after the 6th century B.C.E. 4 The first religion in ancient India to legitimate
is possible, therefore, that it had been practised for some time (indirectly informing the early Jain
and Buddhist discussions). See A. Sharma & K.K. Young, “The Meaning of atmahano jan.
in I9-
Upanisad 3” (1990) 110 J. of the American Oriental Society 595; A. Hejib & K.K. Young, “Sati,
Widowhood and Yoga” in A. Sharma, ed., Sati: Historical and Phenomenological Essays (Delhi:
Motilal Banarsidass, 1988) 73.
“A.L. van Hooff, From Autothanasia to Suicide: Self-Killing in Classical Antiquity (London:
Routledge, 1990) at 53, states, for example, “Military circles have always been counted as very
favourably disposed towards self-killing.”
12See S. Tilak, Religion and Aging in the Indian Tradition (Albany: State University of New
York Press, 1989) at 26, 165, n. 11. Tilak argues, for example, that in India the life expectancy was
about 30 years in the period of the Rgveda but increased dramatically by the period of the Upan-
isads. Because there was now a whole class of elderly people, rather than just a few old individuals,
there was a greater tendency not only to reflect on the meaning of old age and death, but also to
find ways to avoid a long, difficult process of dying.
‘3According to one scholar, “(i]t is difficult to avoid seeing a close connection between the phe-
nomenon of renunciation, which is a principle hallmark of Indian religion in post-Vedic times, and
the relatively wide-spread practice of religious suicide” (M.G. Wiltshire, “The ‘Suicide’ Problem
in the Pali Canon” (1983) 6 J. Int’l Assoc. of Buddhist Studies 124 at 128). Wiltshire attributes
this, in turn, to the “alienation experienced by the indigenous people on being subjugated by the
Aryans … [which] culminates with disaffiliation from all phenomena, including one’s individual
self and its corporeal form” (ibid.). Although this may be a factor, I think that more important ones
are extreme pain in the dying process, a warrior custom, an aging population, and an inherent logic
of transcendence and asceticism that leads to a devaluation of the body. These factors also help
to account for cross-cultural similarities.
14For a full discussion of this history in India, see K.K. Young, “Euthanasia: Traditional Hindu
Views and the Contemporary Debate” in H.G. Coward, J.J. Lipner & K.K. Young, eds., Hindu Eth-
ics: Purity, Abortion, and Euthanasia (Albany: State University of New York Press, 1989) 71. See
19941
CASE COMMENTS
self-willed death was Jainism, a religion that originated in warrior circles,
although it propounded, perhaps in reaction, 5 an extreme version of the prin-
ciple of nonviolence (ahitnsd), not harming even an insect if possible. Its
founder, MahdvTra, fasted to death while in meditation. Called sallekhand, this
became the model for the ideal form of death not only because it was done by
the founder of the religion but also because Jains believed that such a fast would
eliminate the remaining karmas (actions) that sustained the very existence of the
body (and its perpetuation through reincarnation), thereby allowing for libera-
tion –
the realization of kaivalya, described as the radical autonomy of pure
consciousness.
The Jain texts on the topic 6 point out that although sallekhand was to be
voluntary, it could not be undertaken by everyone, and there were specific safe-
guards to prevent abuse. It was to be performed, for example, only by those who
had joined the monastery (sahgha) and who had spent many years fasting and
meditating to ensure that they had the requisite discipline to carry out the final
fast to death. Moreover, they had to obtain permission for sallekhand from the
head of the monastery and make a formal public vow. In this sense, sallekhand
was considered a voluntary, rational and planned act, which could be subject to
public scrutiny. Since Mahavira performed self-willed death when he was very
old, the ideal time to do it was late in life. Acarahga (1.7.8.1-10) states that it
was to occur, however, before aspirants experienced serious illness or extreme
debilitation, for they had to have total discipline and consciousness to the very
end. If they fell ill during the fast, they were to break it, eat and regain their
health before trying again.
These conditions, which were noted in scripture and recognized by the reli-
gious community, distinguished the phenomenon of self-willed death from sui-
cide, which, by implication, was a spontaneous, usually private act of over-
whelming despair. 7 It is striking that in the oldest and exemplary Jain model,
also U. Thakur, The History of Suicide in India: An Introduction (Delhi: Munshiram Manoharlal,
1963); A.B. Keith, “Suicide (Hindu)” in Encyclopaedia of Religion and Ethics, vol. 12 (New York:
Charles Scribner’s Sons, 1922) 33; R. Thapar, “Death and the Hero” in S.C. Humphreys & H.
King, eds., Mortality and Immortality: The Anthropology and Archaeology of Death (London: Aca-
demic Press, 1981) 293.
‘5Jainism also developed as a reaction to animal sacrifice, which was central to the ritual of the
Indo-Europeans and the early history of the Brahmanical (Hindu) tradition in India.
‘6For a discussion of Jain self-willed death, see C. Caillat, “Fasting unto Death According to
Ayarafhga-Sutta and to Some Painnayas” in A.N. Upadhye et al., eds., Mahdvtra and His Teachings
(Bombay: Navajivan Press, 1977) 113; S. Settar, Inviting Death: An Indian Attitude towards the
Ritual Death (Leiden, Neth.: EJ. Brill, 1989). See also P.S. Jaini, The Jaina Path of Purification
(Berkeley: University of California Press, 1979); Gaina Satras, trans. H. Jacobi, Sacred Books of
the East (Oxford: Clarendon Press, 1895).
171t may be assumed that if legitimate self-willed death is defined as a fast to death in order to
eliminate the body and achieve salvation by a bonafide monk or nun who has made a formal vow
with a preceptor, this death is planned, public, limited to a certain group, done for specific religious
motives, and done by a specific method. By definition, therefore, it can be distinguished from a
self-willed death motivated by despair, fear, rage and passion that is spontaneous, private, available
to everyone, and utilizing any (and usually easy) means. The development of a category of legit-
imate self-willed death assumes, therefore, the background of suicide as a spontaneous, usually pri-
vate act of overwhelming despair. This distinction between legitimate self-willed death and illegit-
REVUE DE DROIT DE McGILL
[Vol. 39
planned self-willed death was not a way to eliminate the extreme pain of termi-
nal illness.” And there was absolutely no question of having someone give
assistance or drugs to facilitate the process. In this sense, the early Jain ideal of
sallekhand was more analogous to today’s concept of voluntary withholding of
treatment, especially withholding of artificial nutrition and hydration, though it
was done before terminal illness or extreme debilitation occurred, and it did not
involve drugs for pain relief during the dying process.
2.
Buddhism
Buddhism, another religion that emerged in warrior circles in India in the
6th century B.C.E. but promoted the concept of nonviolence (ahithsa), took
quite a different approach to self-willed death. Lambert Schmithausen argues
that
[i]n early Buddhism, the precept not to kill living beings is a categoric one, with
a tendency not to allow of any exception. Take, e.g., the case of self-defence.
According to Vasubandhu (4th or 5th cent. AD), killing in order to protect oneself
is qualified as resulting from greed, hence not sanctioned. Or a person conscripted
into the army remains unstained by the collective act of killing committed in war
only if he vows beforehand not to kill any living being, not even in order to save
his own life.19
According to the scripture of early Buddhism, the Pali Canon of the Ther-
avada school, the Buddha emphasized the psychological or mental, rather than
the physical, aspect of embodiment:20
The Buddhist understanding of suffering (dukkha) is that it is caused not by an
exterior agent such as a Supreme Being, but by the illness of one’s own mind,
tahhd. This illness can and should be treated. Physical illness, aging and death are
natural phenomena. They appear as suffering only when one perceives them
through tahhd or self-centeredness.2’
imate suicide is implicit in the early Jain texts, but is explicit in the Hindu law texts of a later period
(and in Jain discussions today). The Hindu lawgiver Paraara (4:1-2) stated, for instance, that “if
a man or woman hangs himself or herself through extreme pride or extreme rage or through afflic-
tion or fear, he or she falls into hell for sixty thousand years” (P.V. Kane, History of Dharmablstra:
Ancient and Mediaeval Religious and Civil Law, vol. 2, pt. 2 (Poona, India: Bhandarkar Oriental
Research Institute, 1974) at 924). Other texts cited by Kane (and discussed later in this article) call
suicide (presumably by such motives, means, etc.) a sin. The funeral rituals are not to be performed
for such a suicide, though they are allowed for someone who has performed legitimate self-willed
death.
‘8For an early description of sallekhand, see-Acarahga Sfitra 1.7.8.1-10. This passage says that
one should know that the time for death has arrived, but it should be before debilitation. If one falls
sick during the fast, it should be stopped and food consumed until one is healthy again. But one
should also rejoice in the pain occasioned by the burning up of karma in the process of dying, since
the destruction of karma is necessary for liberation.
19Buddhism and Nature (Tokyo: International Institute for Buddhist Studies, 1991) at 45.
Schmithausen seems to ignore the fact that in early Buddhism, before the time of Vasubandhu,
monastics could eat meat as long as they were not the ones to kill the animals. Nonetheless, there
is a strong aversion to killing in the early tradition.
2See Wiltshire. supra note 13 at 124-40. See also L. de la Vallde Poussin, “Suicide (Buddhist)”
in Encyclopaedia of Religion and Ethics, supra note 14 at 24.
21S. Taniguchi, “Methodology of Buddhist Biomedical Ethics” in P.F. Camenisch, ed., Religious
Methods and Resources in Bioethics (Dordrecht, Neth.: Kluwer Academic Publishers, 1994) 31 at
43.
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With the removal of fear, egoity, ignorance and desire, including the desire for
continued existence, through right mindfulness, one can perceive things as they
really are. This is true health (aroga) and leads to wisdom and compassion
(karun), which will end the cycles of death and rebirth characterized by suffer-
ing. The Buddha is called the “king of physicians” and the “master of medica-
ments”; his teaching is called medicine or health, because he saw clearly the root
of the problem of suffering and offered a solution. ‘
Buddhist reflections on planned self-willed death were based in part on a
crisis that occurred in a monastery. In the Pali Canon’s Book of the Discipline,
in chapter III called “Defeat (pardjika)’ ‘u (that is, expulsion from the monas-
tery), it is said that the Buddha instructed his monks to meditate on their bodies
as impure or unlovely (aiubha). In his absence, the monks began to loath their
own bodies and so deprived themselves of life,24 or had a sham monk, Miga-
laidika kill them?’ Although Migalandika felt remorse, he was encouraged by
a follower of M~xa (the personification of death/evil) to think that he had
attained much merit because he had brought those monks across sartsdra (the
cycles of rebirth) to enlightenment. This inspired the sham monk to go about
encouraging more monks to take their lives, one day depriving as many as sixty
monks of life.26 Learning of this event, the Buddha rebuked the monks saying,
Monks, it is not becoming …, it is not seemly, it is not fit, it is not worthy of a
recluse, it is not right, it should not be done … this is not for the benefit of non-
believers…. Whatever monk should intentionally deprive a human being of life,
or should look about so as to be his knife-bringer, he is also one who is defeated,
he is not in communion. 2 7
The Buddha replaced the meditation on the impurity of the body with a medi-
tation on breathing, describing it as conducive to peace and well-being.
Although embellished with mythical details, as is common in the Pali
Canon, such an incident of monks becoming depressed in their meditation on
the impurity of their bodies and then killing themselves, thinking that they
would attain enlightenment with the elimination of their bodies, likely hap-
pened. The Buddha must have realized the propensity to a slippery slope. After
all, at least according to the preceding account, there was a gradual escalation
over a number of days from the death of one monk to the deaths of sixty.monks,
after they heard of the benefits of self-willed death. Consequently, the Buddha
took immediate action to prevent another such event by changing the form of
meditation to a more positive one, by warning that a monk who instigated or
helped others to die would be expelled from the monastery, and by teaching his
disciples that they should await natural death. Despite the fact that the Buddha’s
22Ibid. at 31.
23Book of the Discipline (Vinaya-Pitaka), vol. 1 (Suttavibhahga), trans. I.B. Homer (London:
Luzac, 1949) (vol. 10 of Sacred Books of the Buddhists, R. Evans, ed.) at 116 [hereinafter Book
of Discipline].
24attanDoi attinam itvita voropenti.
25Book of Discipline, supra note 23 at 117.
26Wiltshire, supra note 13 at 129, cites M. 11.269; S. IV.62; S.V. 320ff; Vin. 1I.68ff as passages
27Book of Discipline, supra note 23 at 123.
referring to this incident.
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message focused on the importance of liberation as the extinction (nibbana) of
the suffering and impermanence of the body, he did not want his monks and
nuns to practice planned self-willed death as a means of eliminating the body
and its desires, which perpetuate rebirth. This position is consistent with
his other teachings. “Life is precious and dear for every living being,” said the
Buddha. “Judging from your own life’s valuableness don’t kill and don’t let
kill.”2 Even when the act of planned self-willed death was voluntary, it contra-
vened the general principle of nonviolence (ahihsd).
This incident in the Book of the Discipline is followed by another didactic
account stating that monks must neither instigate lay people to will their death
nor provide the means for them to do so. A group of six monks, who were
enamoured with a beautiful woman, said to her husband, who was very ill,
“What need have you of this evil, difficult life? Death would be better for you
than life. Hence, when you have done your time, at the breaking up of the body
after death, you will pass to a happy [birth] …, to a heaven-world …,29 This
inspired the ill man to kill himself by eating “detrimental” foods and drinks. The
wife, furious at the monks for instigating her husband’s death, called them of
low morality; others joined in the condemnation. And so did the Buddha, say-
ing, “Whatever monk should intentionally deprive a human’ being of life or
should look about so as to be his knife-bringer, or should praise the beauty of
death, or should incite (anyone) to death … he also is one who is defeated, he
is not in communion.”3 In other words, this account addresses the problem of
self-interest in the motivation of those who are ostensibly compassionate and
want to relieve the suffering of others. It also forbids monks to assist by provid-
ing the means for someone to perform self-willed death.
IV.290 and 11.112 –
Key terms in this passage have been defined by a commentator: intention-
ality, for instance, is something “committed knowingly, consciously, deliber-
ately.” (In two other Vinaya passages –
it is said that
“whatever transgression is committed like this, is called a legal question
[regarding] … whether an offence be wrong.”3 ) A knife is defined more gener-
ally as “a knife or a dagger or an arrow or a cudgel or a stone or a sword or poi-
son or a rope.”’32 (Another gloss adds “falling into a deep ravine, or into a pit,
or down a steep precipice.”33) The expansion of the methods to include poison
is significant. The early physicians in India were often Buddhist monks.
Because monk-physicians were the ones who not only knew the poisonous
properties of drugs, but could also provide them, the issue of physician-assisted
suicide was particularly relevant to early Buddhism.
This discussion of self-willed death in the Book of the Discipline concludes
with a more general analysis regarding intentionality and act. Some monks
28See S. Kato, “Japanese Perspectives on Euthanasia” in A.S. Berger & J. Berger, eds., To Die
or Not to Die? Cross-Disciplinary, Cultural, and Legal Perspectives on the Right to Choose Death
(New York: Praeger, 1990) 67 at 70 [quoting Dhammapada, No. 130].
29Book of Discipline, supra note 23 at 125.
30Ibid. at 125-26.
311bid. at 126, n. 3.
321bid. at 126.
331bid. at 127.
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CASE COMMENTS
praised, out of compassion, the beauty of death to a monk who was ill. When
he died, they feared they had committed an offence that would lead to their
expulsion from the monastery. The Buddha came to the same conclusion
because their act was intentional and led to the death of the monk. This event
is compared to other intentions and acts. For example, some monks tried to cure
a monk who was ill by a treatment involving heat. When he died, the Buddha
said that there was no offence, because they did not mean to cause his death.
In another incident, some monks gave the same treatment intending to kill a
monk, but he did not die. Although this was considered a grave offence, it did
not involve expulsion from the monastery. For expulsion, the act must be
intended by the one who gives the orders and also by the one who carries them
out; if pain or injury occurs, it is a grave offence, but if death occurs, it is an
offence of “defeat” necessitating expulsion from the monastery. If an act is unin-
tentional, but the person dies, it- is a grave offence but not “defeat”.’ As Wilt-
shire concludes, the rules of the monastic discipline (vinaya) condemn “any act
or form of conduct which may be construed as inciting or assisting another to
commit suicide [Book of the Discipline] … and prescribes expulsion from the
Order (pdrajika) as punishment for the offence.”35
There are four rules by which one can be expelled from a Buddhist mon-
astery. Through the centuries they have been recited every fortnight in the mon-
asteries and an infraction must be confessed at that time. The rule under discus-
sion, according to the commentators, means that Buddhist monks (who were
often the physicians) must not perform abortions, nor provide the means to do
so, nor even information about how to do so. Similarly, they must not help a
family to kill a family member whose “hands and feet are cut off,” i.e. who is
physically dependent and by extension, infirrr and a burden. (The rule, there-
fore, is similar to the Hippocratic Oath in the West.) It may be concluded that
early Buddhism was against physician-assisted suicide.
It could be argued that early Buddhism did allow an exception. It allowed
people experiencing unbearable pain in dying to kill themselves. This is illus-
trated by the cases of the monks, Vakkali, Godhika and Channa, possibly the
monk, Assaji, and the lay disciples, Anathapifidika and Dighavu, who were
extremely ill.36 Channa is described, for example, as “a sick man, in pain, griev-
ously ill.”37 When he threatened to kill himself, a monk said that he would
34See also the account in the Pdydsi Sutta (Pali Canon, DTghanikdya 11.330-32) about Pdyasi,
a chieftain, who argued that there is no after-life and so there can be no karmic retribution for the
bad acts a person does in this life; if there were another life, then good people would kill them-
selves to reap their rewards immediately. Mahd-Kassapa, a Buddhist monk, gives several analogies
in reply, including the analogy that if a fruit is picked before its time, it will not mature but die.
In addition, he says that the purpose of living is not just attaining one’s own enlightenment but also
acting altruistically to help others along their spiritual path.
35Supra note 13 at 129-30.
36 For Vakkai, see S. 111.119; Thag. 350-4; Dh.A. IV.117; Vism. 129; for Godhika, see S. 1.120;
for Channa, see M. 111.263; S. IV.55; for Assaji, see S. 1.124; for Antthapifidika, see M. 1II.258;
S.V. 380; and for Dighavu, see S.V. 344 (cited by Wiltshire, ibid. at 131-32).
3 7″Discourse on an Exhortation to Channa (Channovadasutta)” in The Middle Length Sayings,
vol. 3, trans. I.B. Homer (London: Luzac, 1959) (no. 31 of Pali Text Society Translation Series)
at 315.
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search for beneficial foods, medicines and care-givers. Channa replied that he
had already had all this help, and so if he took his life, having been a good dis-
ciple of the Buddha, it would be without blame. He was then examined on the
doctrines related to impermanence and no soul to confirmn that he was not cling-
ing to bodily existence and the desire for rebirth, after which he killed himself.38
Such is the general pattern of these self-willed deaths. 39 In fact, says Wilt-
shire,
they are cases which might be categorized as examples of self-administered eutha-
nasia. So, when we try to understand why they are exonerated, it is initially nec-
essary to appreciate that their act is not gratuitously performed, but constrained by
force of circumstance. … [lit is made quite plain, in the context of the stories, that
recognized conventional treatments had been and were being used to alleviate the
ailment, but that they had a limited value in these particular instances. If this were
not made plain, then exonerating these suicides might have the effect of opening
the floodgates for people to take their own lives on the pretext of slighter com-
plaints.4
The Buddha stated that “whoever lays d6wn this body (kdya) and grasps after
… another body, is to be blamed”; in other words, says Wiltshire, “his [suicidal]
act carries bad karmic consequences.”‘ To determine whether a person had the
right intention to perform self-willed death when in extreme pain, the Buddha
asked the monk “‘have you any anxiety … or remorse … ?’ and ‘have you any-
thing to blame … yourself with in regard to morals … ?,,”2 Either the monk
answered negatively (as did Channa) or was absolved of his anxiety by the Bud-
dha (as was Vakkali) and so died peacefully. The monks became enlightened
and the lay disciples became deities in a heaven (residence in paradise being
lower than enlightenment).
But it could also be argued that there had been good palliative care offered
by the monastery and that some monks had tried very hard to discourage other
monks or lay people from killing themselves. Neither the monks nor the Buddha
himself gave explicit permission for them to take their lives (and therefore did
not really grant a formal exception to the general principle of ahithsd). Rather,
after trying to prevent the suicide, they had little choice (aside from the extraor-
dinary measure of surveillance and physical intervention) but to acknowledge
the act of self-willed death by the people who were suffering extreme pain and
yet were spiritually composed.
Nevertheless, one possible early Buddhist exception to natural death is
analogous to today’s call by some voices in the public square for recognition of
planned self-willed death by someone experiencing unbearable pain in the final
stage of terminal illness, except that it had to be done completely by the indi-
vidual with no assistance whatsoever, and it had to be done by someone who
had no desire for rebirth (as a means to eliminate a body full of pain for a new
one without pain).
ever, and then became enlightened just as he was dying.
38in another account, after he cut his throat he became afraid. He rallied his equilibrium, how-
39Sathyutta 3:123.
40Supra note 13 at 132.
41Ibid. at 135.
421bid. at 136.
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CHRONIQUES DE JURISPRUDENCE
These requirements had the effect of discouraging most monks from per-
forming self-willed death. Without the confirmation of their enlightenment by
the Buddha himself, monks of later times no longer had the absolute confidence
that they were indeed enlightened and did not want to risk rebirth itself or a
worse rebirth. There was also no absolute criteria of how to recognize whether
someone was an arhant, i.e. an enlightened person. In addition, one of the pdrd-
jika rules is that an individual cannot claim to be arhant. All this had the effect
of being a deterrent against the development of a Buddhist practice of legitimate
planned self-willed death.43 Moreover, according to one later popular Theravdda
view, people should live out their natural life-span because when people suffer,
their bad karma comes to fruition and is eliminated; committing suicide will
create more karma which will be passed onto the next life, preventing enlight-
enment.4 Unlike today’s calls by some advocates of assisted suicide, such as
Sue Rodriguez, for the right to choose the time and manner of death and the
right to have total control over their own body on the basis of rights to auto-
nomy and liberty45 (central values to modem Western societies’), there was a
refusal by early Buddhists to accept planned self-willed death for any reason,
with possibly one exception (extreme pain).
As for the Buddha himself, he fell ill at the age of eighty after eating pork;
choosing the precise time and place to depart, he spoke to his disciples, med-
i.tated, and while in meditation, died –
an event known as his mahdiparinibbana
or final enlightenment. 47 Because the Buddha said that he could live longer if
he wanted to, it could be argued that he himself was causing his own death. But
the idea of his control over the time of his death could also be attributed to the
fact that he was viewed by his disciples as having super-human powers. Men-
tion of such control may have been added to an earlier account of his death, for
it is parallel to the story of death-while-in-meditation of MahdvTra, the founder
of Jainism, and it goes against the early Buddhist position not to encourage
43I thank my colleague Richard Hayes for these insights.
44One modem Buddhist critic argues:
In the case of mercy-killing no act of killing can be carried out without the arising of
the thought of ill-will or repugnance towards suffering. In this sense one only termi-
nates life when one is motivated by anger or hatred on the one hand or completely neg-
ative feelings towards the suffering of the patient on the other hand. Even though the
motivation might have been good (i.e., to alleviate the patient’s further suffering), as
soon as thought is transformed into action to terminate life it becomes an act of aver-
sion. When a doctor performswhat he believes is mercy-killing, actually it is because
the pain and suffering of the patient are repugnant to him … Subconsciously he trans-
fers his aversion to the suffering to the one who embodies it (P. Ratanakul, “Bioethics
in Thailand: The Struggle for Buddhist Solutions” (1988) 13 J. Med. & Philosophy 301
at 310).
45Supra note 1 at 583.
46See Somerville, supra note 3 at 15-32, for an analysis of today’s context of the discussion of
euthanasia. She points out that we are a commercial “throw-away” society and may extend this
concept to throwing away “useless” people. We are a “death-denying” but also, with modem tech-
nology, a “death-defying” society. Accordingly, and often for contradictory reasons, we desire con-
trol, certainty and activity. Contributing to such a context are important values –
such as individ-
ual rights, quality of life and dignity –
47See F Story, trans., Last Days of the Buddha: The Mahd Parinibbdna Sutta (Kandy, Sri Lanka:
that contribute to the desire for control.
Buddhist Publication Society, 1974).
McGILL LAW JOURNAL
[Vol. 39
planned self-willed death. In any case, the Buddha’s acceptance of his illness is
more analogous to the modem idea of refusal of treatment and allowing the dis-
ease to take its natural course, than it is to directly killing oneself (euthanasia)
or physician-assisted suicide.
3.
Brahmanism (Hinduism)
Unlike Theravada Buddhism, which possibly made the experience of
unbearable pain in the process of dying an exception to natural death for a per-
son who no longer desired rebirth (though practically discouraged the practice
by such a high spiritual requirement), the Brahmanical (Hindu) religion, the
majority religion with its roots in the prehistoric Indo-European past, initially
refused to legitimate in any circumstance planned self-willed death. This is
made evident by RdL Upanisad (2-3), another text written about the 6th century
B.C.E., which promoted the old Vedic ideal life-span of one hundred years and
warned that people who are slayers of the self (dtmahatyd) will go to hell
(asuryd-loka).48
From this discussion, we see that when self-willed death was given reli-
gious endorsement –
as in Jainism for mendicants, and possibly in Buddhism
for those suffering from unbearable pain in the final throes of dying who no
longer clung to bodily existence and rebirth –
the practice was carefully cir-
cumscribed. This was done to create a boundary between the category of legit-
imate self-willed death and the category of “illegitimate” suicide, the latter
probably understood as voluntary death out of overwhelming despair, fear, rage,
passion or pride (as was its definition in later Indian texts). The word “illegit-
imate” is used here in the sense that the authorities did not officially condone
such suicides as a solution to problems, though they may have felt compassion
for the individual concerned. Moreover, there were threats of punishment, either
in this life or in the one to come, if an individual ignored this boundary around
legitimate self-willed death and contributed to a slippery slope. But were these
safeguards satisfactory? Did they prevent, in fact, a slippery slope? One of the
markers of a slippery slope, as mentioned previously, is that the types of
motives, methods or groups increase.
B. India (4th Century B.C.E.-2Oth C.E.)
1.
Jainism
Epigraphical evidence shows that another category of Jains became
involved in the practice of self-willed death and for more reasons.49 After the 4th
century C.E., sallekhand came to be practised not just by monks and nuns, but
4SMeth~tithi also quotes a passage attributed to the gatapathabrahmana, “na purayusah svah
kani preyt” (one who desires heaven should not depart from life before time). See Sharma &
Young, supra note 10 at 595. See also Mahtbh urata, Adiparva (1 /9:ZU) and the law-giver larasara
(4:1-2).
49See S. Settar, Pursuing Death: Philosophy and Practice of Voluntary Termination of Life
(Dharwad, India: Institute of Indian Art History, Kamatak University, 1990).
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CASE COMMENTS
also by the laity. The Updsakadaga (Ten Lectures on the Religious Profession
of a Layman) legitimated sallekhand for the laity, as did the Sdgaradharmmrta
(1.12). In the Jain law books, the terms and motives increased: besides a way
to attain salvation, self-willed death was a way to avoid (1) calamity such as
captivity by an enemy; (2) great famine; (3) old age, especially when there were
problems of disease, weakness and senility; and (4) severe illness. Still, it was
to be done only through the withdrawal of nutrition by self-control and without
help. The individual was to make a formal vow after a confession of sins to the
preceptor. Usually the person withdrew to a mountaintop to perform sallekhand.
Perhaps a more serious clue in the Jain tradition that a slippery slope was occur-
ring was the fact that the word bdlamdrana, which once meant foolish (bdla)
death, or suicide out of extreme depression, for some came to mean the death
of an infant/child (bala), probably one who was physically deformed or men-
tally retarded, or the death of an “infantile” adult.5″
2.
Brahmanism (Hinduism)
Nonviolence (ahithsd) developed in this period as the central religious
value in Hinduism. It was analogous to the Western term, “sanctity of life”, in
the sense that life was to be protected and was viewed in some sense as sacred.
In the great epic, the Mahcabhdrata, a basic reason is given why society must
encourage nonviolence and protect life. Here is a summary of the argument and
its implications:
[The self is valuable, therefore, we do not like harm or death. The self is valuable
to others; therefore they do not like harm or death. The implication is that to protect
ourselves, we should not harm or kill others so that they will not harm or kill us.
Therefore compassion should certainly be shown to all. The need for a moral com-
mand implies a problem: though people act almost automatically to prevent harm
or death to themselves, they may cause harm or death to others. Not only have they
failed in doing justice to others at the most fundamental level of humanity, they have
ignored another fundamental truism of life: that human beings are interdependent.
People can never be completely autonomous beings. Their lives depend on others
in various ways. They need to have confidence that others are committed to non-
injury –
especially when they are vulnerable (wounded, diseased or weak). This is
the only way to remove fear at the heart of life … To have that confidence in safety,
they must start with themselves and extend protection to others.5 1
There were several exceptions allowed to this general principle of the sanctity
of life in Hinduism: self-defense; the just war; and the category of planned self-
willed death, albeit subject to certain restrictions.
It is striking that the Brahmanical (Hindu) tradition, which had once been
completely against any form of planned self-willed death, now made an explicit
50P. Bilimoria, “A Report from India: The Jaina Ethic of Voluntary Death” (1992) 6 Bioethics
331, cites various texts and authorities for the idea of bdlamdrana as a foolish death (ibid. at 345)
and then comments, “Jaina tradition recognises what is called bdla-mirana, death of the infant or
infantile, i.e. those severely-mentally handicapped or lastingly incompetent” (ibid. at 347). He
gives no textual references for this, however. Because bala means both foolish and child, genuine
confusion may have set in or a shift of meaning was introduced to legitimate the killing of retarded
or mentally ill individuals. I have no idea when this may have occurred.
51K.K. Young, “Hindu Bioethics” in Camenisch, ed., supra note 21, 3 at 15, discussing Mah-
bhdrata, Striparva 7:25-28.
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distinction between illegitimate suicide out of overwhelming despair, etc. and
legitimate self-willed death. Gradually, the latter was accepted, first for warriors
(thereby acknowledging what was probably an ancient practice) and ascetics 2
and then for other groups such as the very old and the very ill. The lawgiver
Atri53 stated, for example, that
if one who is very old (beyond 70), … cannot observe the rules of bodily purifi-
cation (owing to extreme weakness … ) … is so ill that no medical help can be
given, kills himself by throwing himself from a precipice or into a fire or water
or by fasting, mourning should be observed for him for three days and ,readdha
[funeral rituals] may be performed for him.54
To discourage suicide, which was considered a sin, Brahmin law makers said
that the Srddha or funeral rituals should not be performed for those who com-
mitted suicide because of rage, fear, affliction or pride by such means as fire,
water, beating the head, poison or hanging.55
Like the Jains and the Buddhists, the Brahmins were careful to try to
restrict the practice. The performance or non-performance of a funeral, one of
the most important rites of passage that had profound implications for destiny,
served to mark dramatically the boundary between legitimate self-willed death
and suicide. Another deterrent was to smear the suicide’s body with impure
things. And if the person who attempted suicide lived, the person, along with
any friends or relatives who were accomplices, were to be fined. 6
Therefore, in order to prevent people from using any illness or old age in
general as an easy excuse to commit suicide, there had to be other conditions
present. Aparaka (who lived between 1110-1200 C.E.) said much the same thing
as Atri centuries before:
He who is suffering from serious illness [and] … cannot live, or who is very old,
who has no desire left for the pleasures of any of the senses and who has carried
out his tasks, may bring about his death at pleasure by resorting to mahaprasthana
… [walking in a giant circle and fasting until dropping dead], by entering fire or
water or by falling from a precipice. By so doing he incurs no sin and his death
is far better than tapas [asceticism], and one should not desire to live vainly (with-
out being able to perform the duties laid down by the 95stra)Y
When the author says, “he who is suffering from serious illness [and] … cannot
live,” it is difficult to know what is meant precisely. This probably refers to the
fact that death is imminent (and therefore the person cannot live for long). The
prescription that one’s duties had to be fulfilled was a deterrent against the
desire for self-willed death on the part of the individual who wanted to abandon
52Mahcbhdrata, Anusana parva 25:63-64; Manu 6:31-32; 6:76-78; Jabdlopanisad (a late text).
531t is difficult to date Atri. He is referred to in Manu 3:16 and so must have lived before Manu,
See also Young, supra note 14 at 101-102, for further discussion.
whose date varies frormi the Ist century B.C.E. to 3rd C.E.
Vasista Dharma Sfitra 23:14-16).
54Atri 218-219, cited in Kane, supra note 17 at 926.
55Ihe funeral rituals called Yraddha were no! to be performed for suicides (see Manu 5:89 and
56Mahabhdrata, Adiparva 179.20; Pardiara 4:1-2; Manu 5:89; Vasista Dharma Siltra 23:14-16;
57Kane, ibid. at 926.
23:18; Yama 20-21. See Kane, supra note 17 at 924, for various references.
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CHRONIQUES DE JURISPRUDENCE
life when others were dependent on him or her, dharma, or duty in Hinduism,
included everything from marriage and raising children to mandatory rituals.
Similarly, a satf, a woman who immolated herself on the funeral pyre of her
husband (which is distinguished from sati, the act of immolation), could not be
pregnant nor have young children; she had to make a formal vow (sarhkalpa);
and she had to have her finger burnt by a priest to see if she showed no emotion,
a sign of the voluntary nature of her decision and an indication of her fortitude
to carry out the act. Finally, relatives had to try their utmost to dissuade her.
One of the major developments in this period was the popularization of
faster and easier means, such as jumping to one’s death or drowning (means that
have been common to suicides in many cultures throughout the centuries). This
popularization of easy means may have been one of the main contributions to
a slippery slope. In the purdnas, for example, Hindu devotees to a deity were
encouraged to take their own lives at a sacred river or a holy place in order to
attain heaven or enlightenment quickly.5 8 In fact, such an act was said to be
equivalent to attaining enlightenment by asceticism and meditation: “the goal
which is obtained by the wise one –
that
same goal can be achieved by one who has abandoned life at the confluence of
the [rivers] Gafigd [Ganges] and Yamund. Whoever perishes in the Gafigd with
desire or without desire conquers death in heaven and does not see hell.”’59 Sal-
vation, in other words, could be had by anyone by a spontaneous act or even an
unintentional one!
renounced, immersed in meditation –
Such hyperbole, by stressing the universal accessibility of the means and
the goal, no doubt inspired more individuals to will their own deaths. It also
instigated the formation of new groups whose very identity was defined by a
tradition of self-willed death. By .the 7th century C.E., a class of heroes called
tulildl vowed to sacrifice themselves to safeguard dignity, piety, purity and
truth; a class of servants known as the velevili vowed to follow their master
even in death; and women, called saffs, vowed to follow their husbands in
death.’ In some areas, such as the southwest comer of the Deccan (where
today’s provinces of Karnataka, Kerala, Andhra and Tamil Nadu meet), there
were various groups performing self-willed death: warriors and their wives; Jain
monastics and lay people; and women whose husbands had died. Their places
of self-willed death were marked by hero stones, nifidhi tablets (the markers of
the Jains), and sati stones, which had epitaphs.
Despite the popularization of self-willed death in some Hindu circles, there
was no universal accord on the subject. One important Hindu philosopher-
ascetic, Safhkara (788-838 C.E.), made no comment on it but did advocate wait-
ing for the moment of natural death, as if an antidote to the practice of self-
willed death were necessary. But another famous philosopher, the Kashmiri
Abhinavagupta (10th-llth century), is said to have taken his own life and
58Karmapurna 1:37:16:39; Padmapurdna, srsti 60:65; Brahmapurd1na 177:25.
59 Padmapurana, sr.ti 60:65. Translation by K.K. Young.
60S. Settar & M.M. Kaliburgi, “The Hero Cult” in S. Settar & G.D. Sontheimer, eds., Memorial
Stones (Delhi: Manipal Power Press, 1982) 17 at 30-31, 36.
McGILL L4W JOURNAL
[Vol. 39
inspired his disciples to follow him. According to the traditional account, after
he had attained enlightenment and completed his magnum opus, he and his
twelve hundred disciples entered a cave and never reappeared. Even if some
hyperbole has entered into this account, the possibility that Abhinavagupta per-
formed self-willed death with some disciples is likely. Another example is that
of the yogi Jfidnadeva (1275-96 C.E.) who, in his early twenties, buried himself
alive as did his two brothers and sister.
In the 19th century, the British observed that on the island of Sagar at the
mouth of the Ganges river, the lower castes hurled children into the sea to be
devoured by sharks in fulfillment of their vows, and adults voluntarily jumped
for the same purpose. Men also hurled themselves from a precipice in the moun-
tains south of the Narmada river as a means to fulfill their vows. The escalation
of the slippery slope is seen even more clearly in the offering of obsequies (oth-
erwise denied) to lepers consenting to burial alive.6′
3.
Buddhism
According to one 8th century Chinese account, Buddhists in India did not
practice self-willed death.62 However, certain ideas had developed in Indian
Buddhist texts that may have been contributing to a change in the Buddhist per-
spective on this topic. In the Pali text, The Questions of King Milinda, the monk
Nagasena says that two statements are true: a monk should not commit suicide
because he must be a guide for others, but also that the Buddha taught that one
must end life to get beyond rebirth. Nagasena’s statement could be interpreted
as meaning that self-willed death is legitimate if it occurs after one has guided
others.
Developments in the Mahayana branch of Buddhism were also paving the
way for changes. The Jdtakas included stories of the ideal person (bodhisattva)
sacrificing his body to feed a hungry animal, thereby establishing a precedent
for altruistic self-willed death. The practice of planned self-willed death even-
tually entered Buddhist circles, perhaps in imitation of the bodhisattva ideal.’
Santideva (about 700 C.E.), in his Siksdsamuccaya, says:
a beginner –
[I]n what measure is a disciple –
to imitate the heroic deeds of the
bodhisattvas of old? … The question is whether in such and such a case sacrifice
or self-denial is really useful to our fellow creatures; whether there is not some
other means of procuring universal welfare. To sum up, the sacrifice of one’s body
is not in accordance with a wise estimate of the spiritual needs of a beginner.64
This passage suggests that a slippery slope had begun in the Buddhist circles of
India, for now young monks were willing their deaths as a means to enlighten-
ment (unlike the earlier form of Buddhism, Therav~da, in which the monks had
61See Keith, supra note 14 at 35.
62I-Tsing, a Chinese Buddhist pilgrim (682-727 C.E.), mentioned during his travels to India that
Indian Buddhists did not practice self-willed death, unlike Chinese Mahdyana Buddhists. Other
South Asian Buddhist countries such as Thailand that followed the Tleravfda branch ot Indian
Buddhism have maintained the early Buddhist position. See Ratanakul, supra note 44.
63De ]a Valie Poussin, supra note 20 at 26.
64Ibid.
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CASE COMMENTS
to be terminally ill, in extreme pain and have no desire for rebirth). The Sad-
dharmapundarika, which describes how the bodhisattva Bhaisajyar-ja was so
dissatisfied with his worship that he set himself on fire, may have been emu-
lated in China by the 5th century C.E.65
C. East Asia (4th-2Oth Century C.E.)
Whatever the origin of the Buddhist practice of self-willed death by ordi-
nary monks who were not ill, the practice became well-established in Chinese
Buddhism, for Ch’an (Zen) monks died in meditation; their bodies were then
mummified (in imitation of a Taoist practice), lacquered and installed as statues
for veneration in Buddhist temples.’ The Pure Land school in China took liter-
ally the Indian word for enlightenment –
as “blowing out” life
itself rather than metaphorically as “blowing out” the flames of desire. This led
to the practice of self-willed death by fire, fasting, jumping or drowning. A dis-
ciple of the Chinese monk Shan-Tao, for instance, jumped to his death to reach
the Pure Land (a kind of heaven). The Buddhist practice of self-willed death in
China was also related to an ancient Chinese tradition of honour and shame,
especially in the military context. According to the Yii Li, a Taoist work, when
people killed themselves out of loyalty, filial piety, chastity or friendship, they
went to heaven, but those who did so spontaneously out of rage, desire to
unjustly injure someone or to avoid punishment for a crime went to hell.
nibbcna –
One early 19th century report states that in China, suicide was “extremely
common among all classes and among persons of all ages. For those who had
been impelled to this course by a sense of honour the gates of heaven were open
wide, and tablets bearing their names were erected in the temples in honour …”‘
These heroes were servants or officers of state who chose not to survive a defeat
in battle or an insult offered to the sovereign of their country. They were also
young men who chose to die when they were unable to avenge an insult to their
65See Kato, supra note 28 at 71. There are also a number of references by the Greeks to Indians
(possibly Buddhists) performing self-willed death by fire when they were ill (see van Hooff, supra
note 11 at 37).
Still, Schmithausen observes that “apart from [a] … passage from the Vinaya of the Mahi-5sakas,
I for one have not, so far, noted, in classical texts, any passage sanctioning (not to mention rec-
ommending) the killing, out of compassion, of a man or animal suffering from acute and incurable
pain …” (supra note 19 at 47).
661t is also possible that the Chinese Buddhists came to accept self-willed death because of Taoist
influence. The Taoists, who thought that the soul would retain its power after death if the body
were preserved, developed methods of mummification during the Western Han dynasty (206
B.C.E.-25 C.E.). By the 7th century C.E., Buddhist Ch’an abbots sat in meditation posture and
died. They were then mummified by being wrapped in a cloth impregnated with lacquer (a method
unique to the Buddhists). Because they were now immune to putrefaction, which was a sign that
they were enlightened Buddhas, they became literally icons to be worshipped and were established
in a memorial hall for this purpose. The fact that Chinese funerary practices came to use a portrait
(which had to have a perfect likeness to the person) as a dwelling place for the soul may have also
contributed to the Buddhist practice, for the lacquered mummy preserved even more realistically
the exact features of the person. See R.H. Sharf, “The Idolization of Enlightenment: On the Mum-
mification of Cha’an Masters in Medieval China” (1992) 23 History of Religions 1.
67Cited in Westermarck, supra note 9 at 19.
691bid. at 18.
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[Vol. 39
parents; women who killed themselves on the death of their husbands; and peo-
ple who killed themselves as a means of revenging an inaccessible enemy (by
a kind of sympathetic and transferred magic). The latter was, “according to Chi-
nese ideas a most effective mode of revenge, not only because the law [threw]
the responsibility of the deed on him who occasioned it, but also because the
disembodied soul [was] supposed to be better able than the living man to per-
secute the enemy.”’69 In Japan, itinerant monks such as Kiiya (903-972) and
Ippen (1239-1289) drowned to obtain the Pure Land.”0 These events became so
popular that they were often portrayed on scroll paintings. They were algo imi-
tated by ordinary disciples all over Japan who were told to “Delight in dying”
and “Hasten your Death”‘ and so took measures to leave this defiled world. 2
(In fact, one of the words used in Japan today for euthanasia is anraku-shi,
which literally means “ease-pleasure-death” and came to connote the realm of
bliss, i.e. the Pure Land.73) In Japan, the dead were called buddhas (hotoke)7
During the Heian period, priests who were fatally ill went to the Muj6-d6
temple where they received care and ultimately d “good” death which was “has-
tened” in the ritual of rinja-gyogi according to the Ichogonhrdan, a book “rec-
ommending religious voluntary euthanasia in Pure Land Gate.”’75
Japanese Zen supported the idea of planned self-willed death because of
Master Dogen’s injunction to cast off one’s body-mind,76 which was occasion-
ally taken literally. It also supported the custom because of its integration of the
samurai warriors’ practice of bushid6, a way of dying called seppukulharakiri.’
This form of self-willed death was by disembowelment, an extremely painful
act that took great courage and perseverance. After an 8th century mythic ref-
erence to this act by a young goddess who had fought with her husband, the
practice of seppuku entered the customs of the military aristocracy, the samurai,
which had come to power by the 12th century.
Incidents of seppuku reached epidemic proportions during the Mongol invasion in
the 13th century: many samurai committed seppuku in order to show their valour
in face of the enemy and to escape from capture by the enemy. From the 13th cen-
tury on seppuku took firm roots among the members of the samurai class. Influ-
enced by the philosophy of Zen and Confucianism, the samurai began to develop
the warrior code of ethics called Bushido. 78
691bid.
70See H. Welch, The Practice of Chinese Buddhism: 1900-1950 (Cambridge, Mass.: Harvard
University Press, 1967). See also C.B. Becker, “Bioethics and Brain Death: The Recent Discussion
in Japan” (1990) 40 Philosophy East and West 543 at 549.
71Kato, supra note 28 at 71.
721bid. at 70-71, quoting Morishita.
73Becker, supra note 70 at 550.
74See R.J. Smith, Ancestor Worship in Contemporary Japan (Stanford, Calif.: Stanford Univer-
sity Press, 1974) at 50-53.
75Kato, supra note 28 at 73.
76Ibid. at 72.
77Kato states, “It seems that the religious resignation found in Dogen (1238), the high priest rep-
resentative of Zen Gate, and the Pure Land teachings of ‘hastening death’ in Ichigonhddan (1294)
then merged in the Hagakure (1716) of ‘BushidO …’ (ibid. at 73).
78T. Fus6, “Suicide and Culture in Japan: A Study of Seppuku as an Institutionalized Form of
Suicide” (1980) 15 Social Psychiatry 57 at 58.
19941
CHRONIQUES DE JURISPRUDENCE
What started out as a way to preserve honour when defeated in battle
became a substitute for capital punishment and then a way to follow one’s lord
in death. It became ritualized and institutionalized in the Tokugawa period
(1603-1867). Toyomasa Fus6 describes how these self-willed deaths actually
increased in peacetime:
Prolonged peace in Tokugawa Japan witnessed an increase in a form of seppuku
calledjunshi or “suicide to follow one’s lord to the grave.” In peacetime the samu-
rai were deprived of occasions to show their valour and loyalty to their lords, so
they felt the acute need of showing their sense of loyalty at the time of the death
of their lords … ; throughout the Tokugawa period, hundreds and thousands of men
followed their lords to the grave. Every feudal province took enormous pride in
the number of such junshi as a badge of distinction and loyalty.79
In other words, seppuku was so central to the warriors’ identity that the act
was encouraged more for the sake of identity and its statement of total mastery
over life than for an actual military context. Famous examples were romanti-
cized, inspiring plays and, in modem times, novels and films. In fact, it became
such a central religio-cultural concept that it was categorized into many types
according to whether it was voluntary or forced, and according to motive, body
position, and even style of the cut.”0
The practice of seppuku –
viewed as a way to die beautifully and imaged
as “falling down like cherry blossoms” or “dying with a smile”
– moved
beyond warrior and monastic circles, for it also inspired among the lower
classes (1) the practice of aitai-jini (a death pact between unhappy lovers who
wanted union in another world) and (2) the practice of abandoning “useless”,
poor old women in distant mountains. 2 Thus, in the East Asian Buddhist tradi-
tion, we find that the types of self-willed death increased over the centuries. In
Indian Buddhism, planned self-willed death possibly became a legitimate
exception to natural death by a person experiencing unbearable pain in the pro-
cess of dying who had no desire for rebirth (though there is some controversy
whether it was formally sanctioned as an exception). This exception, or the her-
meneutical scope in the scriptures for it, expanded to include planned self-
willed death by monastics in general; then by novice monks, religious laity, and
warriors; and finally by commoners such as lovers, old women and men, and
poor people. The fact that there are over forty-five terms in Japanese to distin-
guish the various types of self-willed death is a clue to the slope: shinja (double
suicide, family suicide); ikka shinjfa (suicide of a whole house); j5shi (lovers’
suicide); junkoku (suicide for one’s country); juns6 (burial of others with the
deceased), etc.83
791bid. at 59.
8See ibid. at 60 for an elaboration of this typology.
8’See Kato, supra note 28 at 74. See also the discussion by Somerville in “The Song of Death”,
supra note 3, on how the modem desire for euthanasia is based on anaesthetization and esthetici-
zation.
82Kato. ibid. at 72-74. According to Kato (ibid. at 74) this was described in Narayama-bushi-ko
by Shichiro Hukasawa.
831 thank my colleague, Dr. Victor Hon, for showing me his translation of over 45 terms in the
Japanese dictionary related to forms of Japanese suicide, some distinguished by the people
involved, others by the method or motive.
McGILL LAW JOURNAL
[Vol. 39
Fus6 relates the popularization of planned self-willed death in Japan more
generally to the importance of roles and status for the Japanese, and the fact that
they were
vulnerable to social disturbances or personal mistakes or inadvertencies that
[brought] about a change in role definition. Shame and chagrin [were] so extreme
among the Japanese, especially in a perceived threat to loss of social status, that
the individual [could not] contemplate life henceforth, and rather than face the
necessity of continuing life in an altered or degraded social role, he [chose] to end
it all. 8
Although some Buddhists dismiss the case of seppuku because it was a Japanese
custom which originated outside the religion, it could be argued that it was
nonetheless religiously endorsed by the religion and became integrated into the
Zen world view. This was, moreover, by no means the first time that Buddhism
had endorsed such a practice of self-willed death, despite its initial reluctance
to do so.
Shigeru Kato states that the Japanese willingness to perform self-willed
death has its roots in (1) the ancient Shinto religion which cultivated a “religious
holism swallowing individual consciousness”‘
and (2) the Buddhist doctrine
that the cycles of reincarnation are characterized by suffering and transience and
in the doctrine that the world ultimately is emptiness (Sunyatd). “It may not be
appropriate to say that Buddhism alone has made Japan ‘a kingdom of sui-
cide,”‘ comments Kato, “but we cannot deny that it has strengthened the Jap-
anese tendency to beautify suicide or absolve suicide of a sense of sin.”86 Fus6
argues that this was the responsibility of Buddhism, for Shinto was life-
affirming.”
Although there are suggestions of a slippery slope in India, China and
Japan, it is important to point out that the practice was, by and large, voluntary
and that it was legitimated initially by the elite for the elite classes in the society,
not as a way to encourage “undesirables” to eliminate themselves, though the
latter gradually occurred as in the case of lepers, widows and old people, espe-
cially old women.88 Still, it is hard to determine whether it was completely vol-
untary. It is often pointed out that indoctrination may not only encourage people
to consider a certain act as a norm or religious ideal, it may also encourage
people to perform it. The religious instigation to salvation and the promotion of
an easy or quick means to attain it, as in some forms of popular Hinduism and
East Asian Buddhism, cast a shadow on the idea that these forms of planned
self-willed death were completely voluntary.
The possibility of indoctrination has long been viewed as one of the prob-
lems with the samurai, for by the Tokugawa period they were virtually obliged
to live up to the canons of samurai courage and to invent an occasion such as
84Supra note 78 at 62.
85Supra note 28 at 72.
“6Ibid. at 71.
8 7Supra note 78 at 61-62.
88″he case of self-willed death as a substitution for capital punishment is a common exception
to this generalization.
19941
CASE COMMENTS
self-willed death, if need be, to express this. The practice of sati may also have
involved indoctrination. In late classical and medieval India, Hindu women
were inspired from early childhood by religious stories and rituals to look on
sati as the ideal form of death. Moreover, there was no other positive role for
elite widows; widowhood was viewed as extremely inauspicious. And widows
were forced to live with no comforts and possessions with their former hus-
band’s family, for their presence was sometimes resented as an economic bur-
den or economic threat (especially, in those regions where a wife enjoyed a right
to inheritance)., 9
This question of being a burden has relevance for today, of course, because
at least some people who are attracted to assisted suicide say that they do not
want to be a burden to others in illness or old age. With an aging population and
constant media attention on problems of allocation of societal resources, which
will become increasingly serious for the health care system, there may be an
insidious indoctrination to the view that a non-productive person is a burden to
his or her family in particular and society in general. For example, recently Jain
leaders, when reevaluating the practice of sallekhand with a view to restoring
it, acknowledged that an individual’s desire not to be a burden to the community
is a legitimate reason to want to perform sallekhanad.
The problem of feeling themselves a burden is particularly acute for
today’s old women in Japan. There are pokkuri temples visited mainly by old
women. After their worship, the old women buy “a piece of underwear –
available in all sizes and shapes – bearing a stamp with the figure of Usu-
sama My66.” The underwear symbolizes the fact that the women do not
want to become incontinent and a burden to their daughters-in-law who must
take care of them (often in tiny Tokyo apartments). Feeling vulnerable
because they may become dependent on others, they pray for a sudden and
easy death. These temples are associated with Pure Land Buddhism, the tra-
dition that once advocated planned self-willed death. It is not surprising,
therefore, to read that older people sometimes kill themselves by drowning
after visiting one of these temples. The phenomenon of the pokkuri temples
may be related to the fact that
[tihe suicide rate in Japan is characterized by the growing number of suicides
in higher age groups. Some 28 percent of all suicides in Japan are committed by
people over sixty, with the highest rate found -among those over eighty. The suicide
89Some idea of the numbers involved can be found on the stones marking a place where a self-
willed death occurred. Over 7,000 stones marking various types of planned self-willed death have
been found in the province of Karnataka alone. See S. Settar, “Memorial Stones in South India”
in Settar & Sontheimer, eds., supra note 60 at 193. According to British records, the number of
satis varied by year (378 in 1815 and 839 in 1818 in Bengal, for instance). One estimate is that
there were about 5000 satis annually all over India. Satis most commonly included the lowest caste
(8i0dras) and the highest (Brahmins); very often the sati was from a poor family. See A. Yang, “The
Many Faces of Sati in the Early Nineteenth Century” (1987) 42-43 Manushi: A Journal about
Women and Society 15.
9uSee Bilimoria, supra note 50 at 348.
91F. W6ss, “Pokkuri-Temples and Aging: Rituals for Approaching Death” in M.R. Mullins, S.
Susumu & P.L. Swanson, eds., Religion and Society in Modern Japan: Selected Readings (Berke-
ley, Calif.: Asian Humanities Press, 1993) 191 at 193.
REVUE DE DROIT DE McGILL
[Vol. 39
rate for women over seventy-five was far higher in Japan than in any other country
covered by the WHO statistics for 1988 … 92
Aside from the question of indoctrination and the problem of old people
feeling themselves a burden, it is important to note that planned self-willed
death in India, China and Japan was never associated with assistance in its ini-
tial historical stages, but only late in its development at a time when the pop-
ularity of the phenomenon had increased. Thus, in India, a woman who was per-
forming sati (which became a popular form of self-willed death only after other
types had become common) would be held down by the priests when the flames
began to curl around her. By traditional standards this was viewed as legitimate
assistance to help the woman carry out her resolve, which she had already made
public and for which she had been tested to determine that she alone had made
the decision and that she had the requisite fortitude. In Japan, retainers helped
those trying to reach the Pure Land by drowning in a river; a rope was tied
around the aspirants’ waists so that if they changed their mind, the retainers
could haul them out.93 Samurai warriors also sometimes received help from rel-
atives or friends who would decapitate them to complete’ their act of seppuku;94
by the Tokugawa period, this was ceremoniously done by a master swordsman,
who, after the very first stab by the warrior, took over and finished the act
immediately. This development conforms to the pattern of an escalation in the
slippery slope based on a quicker and easier means and the involvement of
assistants.
The aid of physicians and drugs was virtually never mentioned in Indian
texts as a means to help an individual carry out an act of planned self-willed
death (which does not rule out the possibility that physicians assisted behind the
scenes95). I can only speculate on the reasons for this. The Caraka Sathhitl, an
encyclopaedic Indian text on medicine, written about the 1st century B.C.E.,
states that a physician should not treat a dying patient.96 Because physicians
were trying hard to establish and protect their reputations (and distinguish them-
selves from the many quacks), they probably did not want to be associated with
cases involving terminally ill persons. They also did not want to be seen as
directly assisting death through the provision of drugs, though their pharmaceu-
tical knowledge probably was extensive enough to provide deadly concoctions
should they have desired to be of assistance in this manner. The contact with
Greece after the 4th century B.C.E., and later with the Roman Empire, could
have also alerted them to the use of hemlock or opium for this purpose.97
921bid. at 200 [notes omitted].
93See Becker, supra note 70 at 549.
94lhe friend or relative who assisted, called kaishaku, would behead the warrior to shorten the
agony of dying. See Kato, supra note 28 at 74.
95There is a hint that some physicians may have provided poison to people, for in the Buddhist
passage about the six monks who encouraged the ill husband of a beautiful woman to die, dis-
cussed previously, the word knife as a means to kill oneself was glossed to include poison. It is
possible that physicians, at least the less reputable ones, made poison available to the dying.
9NAgniveia’s Caraka Samrhite, 1:62-63. For discussion, see Young, supra note 51 at 20.
97Both cultures were aware of each others practices of self-willed death. The Greeks were quite fas-
cinated by the practice of sad in India (and in Greece itself by the ostentatious manner by which some
Indians residing there died by publicly burning themselves). See van Hooff, supra note 11 at 37-38.
1994]
CHRONIQUES DE JURISPRUDENCE
It is also possible that physicians’ refusal to assist, especially by giving
drugs, was related to their fear that they may be accused of homicide. In early
Buddhist Theravdda circles, there was no legitimation of physician-assisted self-
willed death because monks were the physicians, and any hint that a monk was
instigating another person to suicide or providing the means (such as poison) was
cause for expulsion from the monastery if death occurred. And it is possible that
the Buddhists, Hindus and Jains themselves did not want to be drugged; they
were supposed to be fully conscious at the moment of death, for their final
thoughts could influence destiny.” The closest analogy to assistance, in the Asian
context, was the case of religious figures, family, friends or associates assisting
by physically helping the person to carry out the actof dying (by burning, drown-
ing or decapitation) after it had been publicly declared and planned.
As for the secular courts or state authorities giving individuals permission
for planned self-willed death or expecting them to take their lives in certain sit-
uations, this never happened to my knowledge in the history of India, China and
Japan (unlike in the history of the West), with a few exceptions: (1) parents
eliminating deformed infants; (2) criminals eliminating themselves as a substi-
tute for capital punishment; and (3) warriors or kamikaze pilots being expected
to die in certain circumstances.
And as for the State ordering certain groups to die by self-willed death or
to be killed by assistance, this too never occurred to my knowledge. The follow-
ing are possible reasons why planned self-willed death in Asia did not have an
extreme slippery slope: (1) the fact that the religions which originated in India
Jainism, Hinduism and Buddhism – have had a strong sanctity of life prin-
–
ciple in their concept of ahirnsd and allowed very few exceptions; (2) the fact
that they could attribute meaning to suffering through the law of karma and see
the dying process in a positive light as the final step to a better rebirth or
enlightenment/heaven; (3) the fact that they tried to create a firm boundary
around the concept of self-willed death when they legitimated it, in particular,
insisting on its voluntary nature in a context of public accountability; (4) the fact
that they expected physicians to assist the healing process but not the final dying
process; and (5) the fact that the physicians themselves did not want to become
involved, in order to establish or protect their reputatiorls and to avoid any sug-
gestion of homicide.
Finally, it may be argued that the various instances of planned self-willed
death in India, and by extension in Asia, are not isolated examples but are con-
nected by a continuous cultural, religious and intellectual milieu. Buddhism and
Jainism were religions that developed in the same locale (the Gangetic plain)
and virtually the same period (the 6th century B.C.E.) in India. Both religions
share common features, including stories and concepts, as a result. The Brah-
manical (Hindu) tradition was also present in this region at this time, its leaders
interacting with those of the other two religions as basic doctrines were being
formulated. Moreover. in classical times (from the 4th century B.C.E. to the
10th century C.E.), these religions all spread together to the different regions of
9 8For a Hindu example, see Bhagavad GFtO 8:5-6.
McGILL LAW JOURNAL
[Vol. 39
the subcontinent and engaged in constant debate and interaction. There was a
continuous exchange of ideas and practices. On the topic of self-willed death,
this can be documented by observing the proximity of stones marking the place
of self-willed deaths belonging to the three religions, especially in certain
regions of India.
The fact that Buddhism originated in India and then travelled to other
Asian countries established a religious and cultural continuity of the religion in
general. There is some debate over whether there was continuity of the parti-
cular practice of self-willed death from Indian to East Asian Buddhism, because
it was discouraged in the former and became common only in the latter. But the
fact that Indian Mahayana texts had already introduced the notion of self-willed
death and the fact that Indian Buddhism itself had taken up the practice by the
8th century C.E. suggest that there was continuity. This continuity was rein-
forced by Buddhist assimilation of the Taoist practice of mummification for
immortality, Confucian funerary practices, Chinese and Japanese misunder-
standings of Indian Buddhist texts, and local warrior traditions.
II. Planned Self-Willed Death in Western History and the Question of a
Slippery Slope
A. Greece (The Classical and Hellenistic Periods: 5th-ist century B.C.E.)
Turning now to the West, we find some similarities in the practice of planned
self-willed death. First, it enters the historical record in Greece about the same time
as in India, the 6th-5th century B.C.E. One of the most famous and earliest cases
is that of Socrates (b. 470-d. 399), who died by drinking hemlock. Compulsory
self-willed death had become a substitute for capital punishment. Hemlock may
have been first used for this purpose in the latter part of the 5th century B.C.E.
Socrates, as we know, had been condemned to death by the Athenian court
because of accusations of corrupting the youth and atheism; hence, he was permit-
ted to take hemlock so that the authorities would not have to do the killing. Even
though he had had the opportunity of fasting to death when in prison, and his stu-
dents had offered him a way to escape the imposed death, Socrates refused, per-
haps because he was already an old man (71) who wanted a dramatic death and
saw no purpose in living his remaining days in hiding or exile.
For Socrates, then, drinking hemlock was both forced on him by the Athe-
nian court as a form of capital punishment and accepted by him as the best solu-
tion. That the means (hemlock) was not of his choice, absolved him of any
shame of dying the “easy” way by drugs. It also gave him an opportunity to
exhibit his philosophical stance at the moment of dying (he was surrounded by
his students) and therefore to die in a public, honourable, noble and manly way.
In fact, the theatricality of the occasion must have appealed to him –
a final
speech after being-condemned to death by the authorities. Plato reported in the
Phaedo how Socrates sipped the cup of death easily and cheerfully as if he were
toasting a friend. (Exhibitionism became a feature of planned self-willed deaths
and contributed to the fame of the’person who died in this manner.) But Socrates
(or is it Plato speaking?) pointed out that although philosophers may want to die
to free the soul from the body, they should not kill themselves and desert their
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CASE COMMENTS
roles unless the god sends some necessity upon them. Such a necessity for
Socrates involved being condemned to death by the Athenian court.
Just as self-willed death in India became popular at a time when life expect-
ancy was increasing, making aging a more common phenomenon, so too in
Greece.’ And just as in India, China and Japan, “honour suicides to avoid capture,
humiliation, and shameful death [were] frequent in the conflicts … ,.’ so too in
ancient Greece. In the early literature, Ajax killed himself by his sword, as did
Menoikeur, Achilles and Haimon. In real life, Dimnos killed himself when it was
revealed that he had conspired against Alexander the Great.’ Moreover, just as
fasting to death was one of the earliest forms of self-willed death to be legitimated
in India, so too this seems to be the case in classical Greece (where it was called
karteria).Ir And just as fasting was considered noble in some circles in India, so
too was fasting considered noble in ancient Greece.”t0
It is likely that a great plague in Athens (430-423 B.C.E.) and the Pelopon-
nesian War (431-404 B.C.E.), leading to the destruction of the political auto-
nomy of the Greek city-states –
events that dramatically increased fear, stress,
hopelessness and alienation –
contributed indirectly to the popularity of
planned self-willed death among elite men (warriors and philosophers, some of
whom had once been warriors). The fact that Plato and Aristotle debated the
subject, and tried to contain the practice, as will be discussed shortly, is a clue
that the practice was escalating.
Just after this period, schools of Greek philosophy that endorsed planned self-
willed death –
the Stoic, Cynic and Cyrenaic –
developed.”t For example,
in the Stoic tradition, perhaps reaching as far back as Zeno himself, [there was]
a strong and very well-articulated defense of the appropriateness and correctness
“From the 6th century B.C.E. on, many philosophers were living to old age: Pythagoras died
at 82; Anaxagoras at 72; Empedocles at 60; Socrates at 71; Plato at 80; Aristotle at 62; Speuisippus
at 68; Epicurus at 71; Zeno at 72; Dionysios at 80; Cleanthes at 72; Diogenes at 80 (see van Hooff,
supra note 11 at 36).
1t0G. Rosen, “History in the Study of Suicide” (1971) 1 Psychological Medicine 267 at 268.
Roman warriors also had this practice.
101Van Hooff, supra note 11 at 48.
102Although karteria can mean simply brave endurance of pain, van Hooff shows, on the basis
of his examination of the context of many references to this term, that it is commonly employed
to indicate fasting as an actual meansof self-willed death. See van Hooff, ibid. at 42, for a statis-
tical examination of the methods (including fasting) used for self-willed death in 626 cases where
the methods have been specified. In.Latin, fasting to death was called inedia. Van Hooff observes
that “at an early date, perhaps already in the fifth century B.C., there existed medical experience
of voluntary death by fasting. This type of death cannot have been too uncommon since it attracted
the attention of doctors” (ibid. at 43-45).
1031bid. at 42. Also, “starving oneself to death was regarded in antiquity as a method which dem-
onstrated noble resoluteness, preferably to be used in sight of an admiring or sympathetic public
… As a passive method, abstaining from food was hardly counted as an act of ‘laying hands upon
oneself’; rather it was the perfect way of ‘leading oneself out”‘ (ibid. at 47).
104See the discussions in J.M. Cooper, “Greek Philosophers on Euthanasia and Suicide” in B.A.
Brody, ed., Suicide and Euthanasia: Historical and Contemporary Themes (Dordrecht, Neth.: Klu-
wer Academic Publishers, 1989) 9. See also F.H. Sandbach, The Stoics (London: Chatto & Windus,
1975); J.L. Saunders, Greek and Roman Philosophy after Aristotle (New York: Free Press, 1966);
R.D. Hicks, Stoic and Epicurean (New York: Russell & Russell, 1962); A.A. Long, Hellenistic
Philosophy: Stoics, Epicureans, Sceptics, 2d ed. (Berkeley: University of California Press, 1986).
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of suicide in many circumstances: whenever, for example, one [could] judge that,
because of incurable illness, or extreme pain, or the absence of the necessary
means to support oneself, a “natural” life, in the sense of a biologically smoothly
functioning, unhindered one, [was] no longer possible. 05
Although self-willed death was legitimated by these philosophers, it is impor-
tant to note that they did not give a general endorsement of the practice by any
means and in any circumstance, but limited it to specific circumstances and rea-
sons such as extreme pain or extreme poverty.” Moreover, they did not offi-
cially endorse assistance and drugs. And when there were references to how
philosophers belonging to the early phase of these schools died, it was by a dif-
ficult means. (Indeed, it is hard to find examples of philosophers dying by an
easy means, although they were readily available.) There was no blanket
endorsement, in other words, of autonomy and liberty legitimating death by
one’s own will at any time, any place and by any means, especially an easy
means, as was true in some of the late Stoic writings in Rome (and as is some-
times argued in the popular press today). 7
Greek views of self-willed death must be understood in terms of the pre-
vailing values of the time: honour and shame. An honourable self-willed death
expressed courage, rationality, planning and a philosophical perspective. A
shameful one expressed fear, irrationality, spontaneity and no philosophical per-
spective. An honourable death was a public event and contributed to a person’s
(especially an elite man’s) fame. By contrast, a shameful death was private and
forgotten. Finally, an honourable death was to be aesthetic and preserve the
integrity of the face, while a shameful one need not do so.” 8
Hemlock”9 was not endorsed as a noble means of self-willed death. In fact,
Greek philosophers did not even comment on it, nor drugs in general, as a
05Cooper, ibid. at 24.
106 The Stoics … were far from holding a categorical approval of suicide; the carefully for-
mulated early Stoic view permitted suicide in certain cases (e.g., when beset by mental
deterioration or by debilitating disease or by extreme poverty, or when necessary to dis-
charge one’s duties or to avoid disgrace) but opposed it in other. cases … (B.A. Brody,
“Introduction” in Brody, ed., supra note 104, 1 at 2).
M. Griffin (“Philosophy, Cato, and Roman Suicide: 1” (1986) 33 Greece & Rome 64 at 72-73)
says, “The Stoics devoted a lot of thought to what the acceptable reasons for committing suicide
were. For them, … [duties or appropriate acts] were acts for which a reasoned defence can be
adduced (D.L. 7.107), but suicide belonged to a special class of duties, … those imposed by excep-
tional circumstances (D.L. 7.109).” Diogenes Laertius 7:129-131 also said that the wise man, for
reasonable cause, may exit from life on his country’s behalf; for the sake of his friends; and if he
suffers intolerable pain, mutilation or incurable disease. See also the five reasons for suicide asso-
ciated with the Stoics by Olympiodorus, a neo-platonist commentator of the 6th century, in Cooper,
ibid. at 36, n. 20.
107See Brody, ibid.
1’0 Van Hooff points out that drugs caused disfiguration; because there was an ancient tradition
that the appearance of the mortal body would influence the after-life, people did not want to violate
the iniegrity of their bodies (supra note 11 at 77).
“‘5 -emlock was also well-known to the biblical world. See Conium Maculatum L. in J.A. Duke,
ed., Medicinal Plants of the Bible (Owerri: A Division of Conch Magazine LH, 1983) at 49-52;
J.A. Duke, CRC Handbook of Medicinal Herbs (Boca Raton, Florida: CRC Press, 1985) at 139-40.
1994]
CHRONIQUES DE JURISPRUDENCE
means of self-willed death, though they could easily have done so.”‘ By impli-
cation, this means that self-willed death by drugs or physician-assisted suicide
was a shameful death (contrary to what our contemporary rhetoric –
self-
willed death/assisted suicide as “death with dignity” – would have us believe
of the classical Greek texts).'” It is also striking that the word “euthanasia” does
not appear in Anton J.L. van Hooff’s list of 167 words referring to self-willed
death in Greek texts (nor does it appear in his list of Latin ones).” 2 Cooper
claims that it is a coinage of the Hellenistic period meaning either an easy or
a noble death, though he cites only a reference for “noble” (Cicero in adAtticum
16,7,3).”‘ Aside from the special case of Socrates,” 4 an easy death was a shame-
ful death; a difficult one (fasting or by sword) was noble. Why? Because deter-
mination and courage were needed for the latter, and only a few could do it.
Anyone could die by drugs, for that was easy. It is also likely that the very dif-
ficulty of the means was an important deterrent, so that not everyone would be
tempted, thereby leading to a slippery slope.
Despite the tendency to legitimate planned self-willed death only for old
warriors or old philosophers who had “good reasons”, there are indications that
in some places the penchant for planned self-willed death became a virtual epi-
demic. The Cyrenaic philosopher, Hegesias (4th-3rd century B.C.E.), taught, for
example, that death was the only goal of life because happiness was so fleeting.
He wrote a Job-like tale about a man who was so overcome by troubles that
he fasted to death. After many of Hegesias’ students took this tale to heart and
killed themselves, King Ptolemy prevented the “too successful ‘Death-urger’
(Peisithanatos) from teaching any longer, in order to dam the wave of sui-
cides.””..
I”Van Hooff, supra note 11 at 60.
“‘Van Hooff, discussing Aristophanes’ Frogs, notes that “rope and ladder, a jump from a tower
and finally hemlock” are mentioned for their comic effect as “the three most miserable ways of
voluntary death … Such banal methods could be expected in slaves, as Roman law proves …
Among the means which a ‘bad slave’ (malus servus) is supposed to have applied, again we have
the triad hanging, jumping and ‘a medicine by way of poison”‘ (ibid. at 59-60).
“2For a full list of suicidal vocabulary in Greek and Latin, see van Hooff, ibid. at 243-50, app. C.
113Cooper, supra note 104 at 9. It is likely that euthanasia was a term that referred to a natural
death that was not painful and therefore “easy”.
“4See also the discussion in M. Smith, “Did Socrates Kill Himself Intentionally?” (1980) 55
Philosophy 253; R.G. Frey, “Did Socrates Commit Suicide?” (1978) 53 Philosophy 106; Plato,
Great Dialogues of Plato, trans. E.H. Warmington & P.G. Rouse (New York: New American
Library, 1956); J.C.G. Strachan, “Who Did Forbid Suicide at Phaedo 62b?” (1970) 20 The Clas-
sical Quarterly 216.
The case of Socrates belongs to the special context of capital punishment. This case is relevant
to the discussion at hand, for several reasons. Death by hemlock, which is usually viewed as a
shameful death, was not so shameful for Socrates because it was by necessity and because he him-
self treated it as a noble death. Also, later figures such as Cato chose to kill themselves after read-
ing the account of Socrates’ death (even though they were not faced with capital punishment). Sen-
eca, while he had other reasons, nonetheless alludes to Socrates’ death. Thus, Socrates’ death
associates a famous philosopher and death by hemlock. It is possible that this association contri-
buted over time to the change from hemlock viewed as a shameful means to hemlock viewed as
a noble means. At least this is the case today, for the Hemlock Society was formed to try to legit-
imate and legalize death by poison and assisted suicide as a “death with dignity”.
“5Van Hooff, supra note 11 at 42.
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There are also clues that other groups, if not greater numbers of people,
resorted to this practice, suggesting again that a slippery slope was occurring.
It is likely that the use of hemlock by commoners was largely responsible for
this. In Ceos, where hemlock was cultivated and processed, there are
accounts of a practice, if not a law, that anyone over sixty had to take hemlock
to end their lives.”‘ Concoctions made with hemlock had become so deadly
and worked so quickly that a literature on antidotes developed; this suggests
that people in a moment of depression turned too quickly to hemlock for a
solution. Although so-called “noble” self-willed death was generally by a dif-
ficult means such as by fasting or sword, in some cities self-willed death by
hemlock lost its association with shame and became not only common but
even legitimate in the eyes of the political authorities. Thebes and Massalia
(modern Marseilles) were, for instance, Greek cities where self-willed death
by hemlock had become common. In the latter, according to van Hooff, any-
one could resort to death in this manner by seeking permission from the
authorities; if adequate reasons were presented, the person received a dose of
poison at the town hall.” 7
The tradition of the philosophers’ “noble” self-willed death was given a
literary seal of approval in the Lives of the Philosophers by Diogenes Laertius
(circa 200 C.E.). Because self-willed death appeared like an “obligatory last
act” for the philosophers, the text reflects what may have become a cultural
institutionalization of planned self-willed death for elite men.”‘ Laertius said
that one may perform self-willed death “for the sake of one’s country, for the
salvation of friends, and because of intolerable suffering, mutilation, [and]
incurable diseases.””19
“16This is reported by a number of authors such as Strabo (63 B.C.E.-23 C.E.), Geography
10, 5-6, who says that it occurred during the siege of Athens. See also Theophrastus: Enquiry
into Plants and Minor Works on Odours and Weather Signs, vol. 2, trans. Sir Arthur Hort (Lon-
don: William Heinemann, 1916) at 305. This tradition may have continued for some centuries;
Valerius Maximus describes in his Memorable Facts and Sayings how an old Greek woman
died from hemlock in the traditional manner before Sextus Pompeius, whom she had invited
to the event (van Hooff, ibid. at 32).
“TVan Hooff, ibid. at 167-68. Van Hooff dismisses the historicity of this reference because
it is lacking in precise details. This is in keeping with his sympathy for the practice of planned
self-willed death and physician-assisted suicide, which colours his interpretation despite his
usually scholarly treatment of the topic.
“5SSome accounts of the reasons for a planned self-willed death seem trivial; according to
Diogenes Laertius (7.26-28 and 7. 175-176), Zeno broke his toe and Cleanthes had to abstain
from food for two days because his gums were inflamed. See D. Laertius, Lives of Eminent
Philosophers, vols. 1 & 2, trans. R.D. Hicks (Cambridge, Mass.: Harvard University Press,
1950). It is difficult to know whether Diogenes Laertius, who lived possibly in Anatolia (circa
200 C.E.) and who seemed to be morbidly fascinated with the topic of death, was reporting fact
or fiction. His style is that of a hagiographer, and under the influence of later Stoicism, which
had more of a tendendy to accept autonomy in general rather than in particular circumstances
as providing a good reason for self-willed death, he could have included some legendary mate-
rial (of course, it is also possible that both Zeno and Cleanthes, being old and wanting to avoid
the dying process altogether, chose these seemingly trivial situations to start the process of
dying).
“19D. Gourevitch, “Suicide among the Sick in Classical Antiquity” (1969) 43 Bulletin of the
History of Medicine 501 at 510.
1994]
CASE COMMENTS
B. Rome (The Republican and Imperial Periods: 3rd Century B.C.E.-5th
Century C.E.)
It was not only in ancient Greece and her colonies where planned self-
willed death was to be found; it was also practised in the Roman Empire (which
included some authority over Greece from the 2nd century B.C.E. on). Despite
the fact that early Rome abbreviated funerals for suicides as a deterrent (as in
India and Greece), the practice of planned self-willed death became common,
in part because of an ancient practice among Roman warriors and in part from
contact with the Greek practice, especially through Greek prisoners of war who
were physicians (circa 265 B.C.E.) and through Romans who went to Athens
and Corinth as ambassadors as of 228 B.C.E.
Once again, the practice of planned self-willed death seems to have
increased in the wake of political problems that bred despair (for instance, dur-
ing the civil war that ended the Roman Republic in the 1st century B.C.E., when
some senators politically opposed the emperor and took their own lives rather
than lose face, be tortured or be killed). The decay of religious belief, confusion
over the meaning and purpose of life, and the popularity of Stoic thought, which
had become a standard feature of the educational curriculum, also played their
part. It is beyond the scope of the present article to review the discussions or
actual examples of self-willed death by Cato, Seneca, Lucan, Tacitus, Pliny,
Cleombrotus and others,2 except to point out that some scholars, such as Mir-
iam Griffin and George Rosen, think that planned self-willed death became so
popular that it was virtually a fashion or cult.’2′
Famous figures not only wrote about it or actually did it –
often empha-
sizing its heroic and theatrical nature –
they also inspired others. What for
some had been a necessity when faced with political accusation, torture, death
or a way “to secure certain posthumous advantages which the suicide had over
the condemned in respect of the disposal of his person and his property,’ ‘
became for others simply a theatrical way to die.” Among elite men, fasting
and death by sword remained common means, though cutting open the veins
also occurred. Van Hooff concludes, “It seems that at the turn of the first century
it was accepted behaviour to draw up the balance-sheet of life and to decide for
’12 During the civil war that ended the Roman Republic (at the end of the 1st century B.C.E.),
planned self-willed deaths increased. It is striking how often Plato’s death scene is said to be the
inspiration for a planned self-willed death (as with Cato).
See also R. Garland, “Death without Dishonour: Suicide in the Ancient World” History Today
(January 1983) 33; The Letters of the Younger Pliny, trans. B. Radice (Middlesex, U.K.: Penguin
Books, 1977); Rosen, supra note 100; van Hooff, supra note 11.
’21See Griffin, supra note 106. See also Rosen, ibid. at 271, who says of self-willed death that
122A.W. Mair, “Suicide (Greek and Roman)” in Encyclopaedia of Religion and Ethics, supra
note 14 at 32. At the time of the Empire, the goods of a condemned person were generally con-
fiscated and he was not given burial rites (this was not true under the Republic).
“it became almost a social disease.”
123″[Later Stoics like Panaitios (c. 140 B.C.E.) and Posidonios (c. 130-46 B.C.E.) … [inter-
preted suicide] in the sense not of an external compulsion, but of an inner overmastering impulse.
By this interpretation the whole philosophic anti-suicide position was undermined” (Mair, ibid.
at 31).
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death. Maybe the Roman aristocracy of the imperial terror paved the way for a
more general openness towards suicide in the next epoch.”’24
As the popularity of planned self-willed death grew, an easier means such
as poisonous drugs – which may have hitherto been used mainly by common-
ers, women and slaves, –
became popular among elite men in the late Republic.
Danielle Gourevitch thinks, in fact, that physicians often helped in cases of
planned self-willed death by elite ill men (as well as others).” The custom of
requesting poison became
so well established that the mere request for poison is insufficient to compromise
the requester. … We frequently see him [the physician] solicited, whether quite
openly for suicide or whether suicide be advanced as a pretext to mask a murder.
… The physician may be asked in such a fashion as to let him know the patient’s
intent; or there may be an unadorned request for help.126
The fact that the physicians were usually slaves or Greeks 27 meant that
Romans already viewed them with contempt and were at ease demanding poi-
sons from them, though sometimes they coded their requests or made them
ambiguous to prevent the physician from being charged with homicide., Old
people who were tired of life occasionally resorted to this means, though there
is little public record of such action.’29 According to van Hooff, who reports on
the impression created by cases in Pliny’s correspondence, “It was not uncom-
mon in the upper-classes immediately beneath the elite to take one’s own life
after consulting one’s friends and doctors.”’30 It was also not uncommon for
humble people and slaves to take their lives.
Ideological and dramatic exploitation of suicide among humble people once again
makes it clear that self-killing was common in all classes of ancient society. But
in the materials handed down to us, upper-class males dominate the scene … The
unhappy few of the elite are of course only the tip of the iceberg of suicide.
Beneath there is the great mass of anonymous desperate people. 13 1
This nonchalance about self-willed death by drugs continued into the
Imperial period and is captured in the words of Libanius, the court orator during
the reign of the Emperor Julian in the fourth century C.E.: “If your existence is
hateful to you, die; if you are overwhelmed by fate, drink the hemlock. If you
are bowed with grief, abandon life. Let the unhappy man recount his misfortune,
124Supra note 11 at 124.
12SSupra note 119.
1261bid. at 507.
’27″Nine out of ten physicians were slaves and the tenth Greek …” (ibid. at 503).
128H. Trowell, The Unfinished Debate of Euthanasia (London: SCM Press, 1973) at 7-8, thinks
that it is difficult to determine the degree of physician-assisted suicide. Although there are many
examples of physicians supplying a poison, there is no specific passage where physicians actually
administered the poison. He thinks that this was to avoid charges of homicide.
129Although taedium vitae was a category of Roman law, there are few public cases; because it
did not have public significance, it probably was not publicly recorded, though it may have been
very common. See van Hooff, supra note 11 at 122. According to van Hooff, the law-giving
emperor, Antoninus Pius, “specifies even more exactly when a suicide may be a confession of
guilt. It the accused has put an end to his life from taedium vitae or because of unbearable pain
or otherwise, ‘he has an heir’ (successorem habet)” (ibid. at 170).
’30 bid. at 39.
1311bid. at 20-21.
19941
CHRONIQUES DE JURISPRUDENCE
let the magistrate supply him with the remedy, and his wretchedness will come
to an end.”‘3 According to Libanius, such an unhappy person had simply to go
in front of the Senate, obtain permission to die, and receive an appropriate sup-
ply of hemlock.’
Although early Christians looked down on such practices as pagan, some,
especially those of Greek and Roman background, promoted a variant of the
custom in their desire for martyrdom. It was praised in the 2nd and 3rd centuries
C.E. by Christian leaders such as Ignatius of Antioch, Origen of Alexandria
(who wanted to be a martyr himself, like his father had been), and Bishop Euse-
bius. And it was welcomed as an ideal death by women such as Vibia Perpetua
or the Donatist Christians who wandered in ecstasy, finally flinging themselves
over cliffs.” Again, it may not be incidental that the latter occurred at a difficult
time and place of social change: the breakup of the Roman empire in North
Africa.135
To conclude, in early Western history there was also a slippery slope.
Although self-willed death probably originated in warrior circles in ancient
Greece, it became popular with elite, urban old men (some of whom had been
warriors at some stage of their lives) who looked on fasting to death as a manly,
courageous and therefore noble act. After the social, economic and political
upheavals of epidemics and war, the popularity of planned self-willed death by
the philosophers grew. The most extreme example was Hegesias, who inspired
many of his followers to take their lives. Although under-reported, there were
also planned self-willed deaths utilizing hemlock by old people, women and
slaves, especially in illness, and probably involving the assistance of physicians
who provided the deadly concoction. This was, however, mainly a secret (and
shameful) practice. The fact that texts report antidotes to hemlock suggests that
it was being used rashly by people for suicide or homicide. In at least one place
in classical Greece, Ceos, the State mandated all old people to die by drinking
hemlock. Later in the Hellenistic period in Thebes and Massalia, the political
authorities would give permission and a free dosage of the drug; this too indi-
cates the popularity of self-willed death and a resulting slope. The obsession of
Diogenes Laertius, late in the Hellenic period, with stories about the self-willed
deaths of the Greek philosophers brings this aspect of Greek history to light.
Planned self-willed deathin Roman history may have begun independently
in warrior circles but was reinforced through contact with the Greek practice,
both as a noble ideal of the, philosophers, thanks to popular schools like the
132Libanius, cited by t. Durkheim, Suicide: A Study in Sociology, trans. J.A. Spaulding & G.
Simpson (New York: Free Press, 1951) at 330.
133It could be argued that this statement by Libanius is suspect, for he was an orator who had
often little regard for fact. But it could also be argued that while this may be true when he spoke
of classical Greece far removed in time, it may not be true when he spoke of his own court. Pre-
cisely because he belonged to the court, he witnessed such practices and reported on them. More
likely, Libanius could have been referring to such a practice during the previous several centuries
in Rome, for that was the period when physician-assisted suicide by hemlock was popular and easy
means had lost their association with shame.
134See Rosen, supra note 100 at 270-73.
135Trowell, supra note 128 at 8.
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Stoics, and as a largely underground practice of assisted suicide through the pro-
vision of hemlock by Greek physicians. Just as self-willed death became pop-
ular in Greece in the wake of epidemics and the Pelopponesian War, which had
destabilized society, so it became especially popular in Rome during the civil
war that ended the Roman republic. Even though self-willed deaths at the time
were usually solutions to political problems, the examples of famous men taking
their own lives and being more willing to seek easier means such as hemlock
seem to have contributed to a slippery slope in the next several centuries. And
it is possible that the easy availability and acceptability of hemlock made the
boundary around legitimate self-willed death less easy to maintain, creating a
greater overlap with the phenomenon of suicide out of overwhelming despair.
This may also have happened because the general principle of the sanctity of life
was not firmly established; socially endorsed infanticide and the exposure of,
unwanted children being cases in point. Finally, the State itself may have
become involved in the practice of planned self-willed death in the first several
centuries of the common era, by having the authorities give both permission and
the requisite drug.
As for the question of whether all these examples of planned self-willed
death are isolated examples or are causally related, it may be argued that the lat-
ter is the case, for the simple fact that ideas circulated in Western society as they
did in Eastern ones. The ability to die an extraordinary death with courage, for-
titude and nobility informed ancient Greek norms of masculine identity and
eventually philosophical treatises and literary texts, accounting for why self-
willed death occurred over many centuries on the battlefield, in prison sur-
rounded by one’s disciples, or at home surrounded by one’s family. The prev-
alence of hemlock and the fact that physicians were taught its powers and
passed on knowledge of its effects to the next generation of physicians also
established a continuity of practices. Finally, the close relation between Greece
and Rome from the Hellenistic period –
especially the contact of philosophers
and physicians –
contributed in no small measure to the continuity of practices
of planned self-willed death.
III. Stopping the Slippery Slopes
Plato, in the Phaedo (61c10, d6-7), has Socrates sympathetically, through
the figure of Philolaus, present the view of the Pythagoreans, who maintained
that self-willed death was wrong. A justification in the form of a theory is then
presented, the gist, following John M. Cooper, being that the gods “are our
keepers, who tend us and take care of us as possessions of theirs. As their pos-
sessions, we have no right to decide to cease to be tended and used by them as
they see fit …,,36 In other words, divine authority is invoked in support of nat-
ural death. “There is also the suggestion, to judge from Cebes’ immediate
response (62c-e), that suicide would be stupid, too, and wrong on that ground,
because being under the charge and tendance of the gods, who are wise and
good, we must expect to be exceedingly well cared for in whatever way …. 137
136Supra note 104 at 15.
1371bid. at 16.
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CASE COMMENTS
Cooper observes that Socrates does not commit himself to a total ban, say-
ing in 62a that “for some people it is better that they should die, and if so it is
impossible to see why it should not be permitted to them to bring .about their
own deaths, rather than having to linger on until someone else does them the
favor.”‘ 38 This passage provides an opening to the possibility of exceptions. In
fact, in Laws IX, Plato does indeed allow for some exceptions: in the preamble,
when commenting on the contemplation of a capital crime that might bring
about the ruin of the State and social order, he states that the individual should
try to purify and reform himself, but if this is not possible, he “should look upon
death as the preferable alternative and rid [himself] of life,”’39 before he actually
commits such a crime. In Laws IX (873c-d), there is an extensive discussion of
the exceptions. It is worth quoting Cooper’s summary and discussion in full:
With the exception of three special cases, suicides are to be punished with burial
in unmarked, solitary graves in deserted, outlying districts. The special cases, for
which neither this nor any other punitive action is to be taken, are these: when the
agent acted (1) (as Socrates did) under judicial order, or (2) being forced (anan-
kastheis, 873c6) by some excruciatirig and unavoidable misfortune, or (3) having
come to participate in some irremediable disgrace that he cannot live with. Plato’s
language here, though it appears to be carefully chosen, is not completely clear …
but there seems to be a clear difference between the first two of these exceptions,
on the one hand, and the third. The first and second, being cases where the agent
is represented as acting under compulsion (ananke), legal or emotional –
a typ-
ical case of the second kind might be suicide due to understandable grief or
depression, caused perhaps by the loss of one’s whole family in a fire … The third,
however, appears to cover justified suicides (there is no reference in this case to
compulsion), where the justification lies in the fact that the person has (perhaps
intentionally, perhaps not … ) done something morally very disgraceful … So
whereas earlier in book IX Plato had said that a person whose moral character was
irremediably extremely bad should kill himself, here he counts suicide as justified
as a way of extricating oneself from extreme moral disgrace brought on one’s
actions.
All other suicides than the three classes just indicated the law of Magnesia
will punish in the way specified above, on the grounds that anyone who commits
suicide in other circumstances “imposes [an] unjust judgment [of death] on him-
self in a spirit of slothful and abject cowardice …” Apparently, then, anyone who
commits suicide when his judgment is unclouded by grief, depression, or other
severely distorting emotions … will be judged to have shown cowardice and a rep-
rehensible unwillingness to take action against these evils and their effects on his
life. That is to say, Plato here denies that the sorts of consideration that the Stoics
later held did justify committing suicide …140
Planned self-willed death motivated by extreme pain was, according to Plato, a
cowardly inability to take charge of life.’ 4′
1381bid.
139854c4-5, as quoted by Cooper, ibid. at 18.
t4Ibid. at 18-19.
141At the same time Plato, in his Republic (3:295), condemned the physician, Heroditus, the
teacher of Hippocrates, for medically treating diseases and thereby inventing lingering death. He
then praised the physician god, Asclepius, for refusing to treat the extremely ill. In other words,
he seems to be acknowledging the fact that physicians need not interfere with the process of natural
death. This is similar to today’s acknowledgement that physicians, with public and legal account-
ability, are not required to use extraordinary measures to keep an individual alive who is experi-
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(Vol. 39
Why did Plato take this position? Cooper suggests4 ‘ that it was simply
because he was a traditionalist and supported the government and traditional
laws (in contrast to the later Stoics who were sceptical and iconoclastic).’43 But
Plato presents a discussion full of nuance on this topic, and when he is arguing
for exceptions to the general law regarding the treatment of the corpse of sui-
cides, these discussions may well represent his own reflections on the law.
If planned self-willed death by hemlock and assisted suicide were becom-
ing more common in a population under duress after the Pelopponesian War, it
may be that Plato was, in fact, appealing to the authority of Athenian law to dis-
courage suicides (i.e. by burial in unmarked solitary graves or removal of the
right hand of such a person and its burial away from its corpse to disempower
its spirit). Indeed, Plato may have been one of the first to notice that a slippery
slope was occurring, and so he categorically condemned as cowards people who
took their lives when they experienced the pain of illness. Because of the easy
availability of hemlock, he may have decided to make a distinction between
spontaneous suicide when judgment is clouded by grief, depression, etc. and
planned suicide, the former to be tolerated by society, the latter not.
Now, the idea of planned suicide returns us to the context of taking hem-
lock to avoid pain. Since death by hemlock was becoming more common at this
time, it is conceivable that it was being perceived as a problem for society, espe-
cially since a literature on antidotes developed then. This may have prompted
Plato not to include it as one of his exceptions, even though extreme pain in ter-
minal illness seems, in point of fact, very similar to the idea of excruciating and
unavoidable misfortune.
Similarly, it may be that Aristotle (384-322 B.C.E.) was also addressing a
slippery slope when he argued that to kill oneself in order to escape from any-
thing that is distressing (poverty, desire or pain) is not courageous;’44 planned
self-willed death is wrong, moreover, because it deprives the city of the produc-
tive labour of a citizen. He too referred to a law that forbade suicide and men-
tioned “an established penalty for breaking the law against suicide.”’45 Some-
what later, even the Epicureans, who legitimated planned self-willed death
under certain circumstances, warned “against fleeing life because of the hatred
of life,” and the Stoics (much like the Buddha) had to preach against the “death
wish.”‘” Epicurus, in fact, “[analyzed] as pathological the motives that lead
encing extreme suffering in what is assumed to be the final dying process or in cases of a coma
with little hope of recovery when such measures will not benefit the person (though physicians
should provide good palliative care).
142Supra note 104 at 24.
143See also KJ. Dover, Greek Popular Morality in the Time of Plato and Aristotle (Oxford: Basil
Blackwell, 1974).
1″Griffin, supra note 106 at 71, citing N.E. 3.1116a12.
145Cooper, supra note 104 at 35.
t46 Despite the predominantly negative view of Plato and his pupil [Aristotle], however,
there is a kernel of truth in the story of Cleombrotus: that is the impression Plato’s dia-
logue could make on the unwary reader, overwhelmed by its message of the immortal-
ity of the soul and its incarceration in the body. This is one indication of the dilemma
1994]
CHRONIQUES DE JURISPRUDENCE
many people to kill themselves. ‘It is absurd,’ he said, ‘to run towards death
because you are tired of life, when it is by the manner of your life that you have
brought it about that you ought to run towards death’ – what you should do
instead is to revise the way you live so that you no longer feel so tired of living
that death is a reasonable option for you.” 47 He also analyzed deep depression
and anxiety related to the fear of death as reasons for suicides.
In Roman society, criticism against planned self-willed death and assisted
suicide mounted in some circles after the end of the Republic, as their popularity
grew. The attempt to stop their practice was not due to some extreme religious
peculiarities of the Christians but was based on a deep concern in many sectors
of late Roman society that these practices were detrimental to society, for this
ideal was encouraging even young people to treat their lives apathetically (that,
too, at a time of depopulation after several epidemics had devastated elite
Roman society). Epictetus (circa 50-120 C.E.), a Greek Stoic generally support-
ive of self-willed death, noted “a death-wish among young men and felt obliged
to restrain it, urging them not to commit suicide.”’40 The poet Martial opined,
“I have no use for the man who, by easy shedding of his blood, purchases fame;
I value the man who can win praise without death.”’49
The Hippocratic Oath was likely revived”‘0 during the 1st century C.E. by
the Pythagoreans to counsel physicians to protect their healing art and their
patients by not providing drugs for self-willed death; hence:
I will apply dietic measures for the benefit of the sick according to my ability and
judgment; I will keep them from harm and injustice. I will neither give a deadly
drug to anybody if asked for it, nor will I make a suggestion to this effect … In
purity and holiness I will guard my life and my art. 15
1
Gourevitch observes, “If the most moral texts do in fact forbid physicians to
take such action, this is in itself a sign that abstention was not universal: if the
question had not arisen, it would not have occurred to anyone to codify the pro-
hibition.”‘5 Much the same can be said about a similar oath in the Corpus Medi-
later faced by all the dogmatic Hellenistic schools of philosophy, namely that their
insistence on the unimportance of external goods and of apparent evils like death, a
doctrine designed to render life happy by making one independent of the blows of for-
tune, could in fact make life seem dreary and death attractive. Hence the Epicureans
issued warnings against fleeing life because of odium vitae, hatred of life (D.L.
10:125-6; Lucr. 3.79ff.) and the Stoics preached against the libido moriendi, the death
wish (Sen. Ep. 24.24-25; Epictetus 1.9.12) (Griffin, supra note 106 at 71).
147Cooper, supra note 104 at 29.
t48Rosen, supra note 100 at 270.
149Quoted in Griffin, supra note 106 at 68.
150In 1943, Ludwig Edelstein, after analyzing the oath, came to the conclusion that it belonged
not to the Hippocratic tradition but to the Pythagorean, which was revived in the 1st century C.E.
It was then adopted by Christian physicians. See L. Edelstein, “The Hippocratic Oath: Text, Trans-
lation and Interpretation” in 0. Temkin & C.L. Temkin, eds., Ancient Medicine: Selected Papers
of LudwiR Edelstein (Baltimore: John Hopkins Press, 1967) 3. See also Trowell, supra note 128
at 7-8.
151See L.R. Kass, Toward a More Natural Science: Biology and Human Affairs (New York: Free
Press, 1985) at 229.
152Supra note 119 at 505.
McGILL LAW JOURNAL
[Vol. 39
corum Graecorum. s3 Van Hooff notes that “[i]n the literature of the Later
Roman Empire sympathetic descriptions of self-killing because of unbearable
suffering do not occur any more: the climate of complete tolerance which
existed in Pliny’s times was apparently over.”‘”
Criticism was also voiced by opponents of Stoicism, such as the neo-
Platonists, who, from the 3rd century C.E. on, focused many commentaries on
the Pythagorean prohibition of suicide in the Phaedo.55 Plotinus (3rd century)
assumed that “Plato’s view was that suicide never is justified in the pursuit of
happiness, and so sets himself to argue, especially of course against the Stoics
,,,,156 ; more specifically, he argued against the destruction of the body to free the
soul and against reason as neither depending on nor relating to the body, and
therefore, there being no basis “at all for arguing that reason itself (i.e. as it is
in its own self) will ever dictate the termination of one’s own life.”’57 That Plo-
tinus imposed a much stricter reading on Plato by returning to the Phaedo (and
ignoring the Laws) is a clue that he was looking for a proof text to stop a slip-
pery slope associated with the Stoics.
In Jewish circles, criticism is represented by the Jewish historian Josephus
who condemned planned self-willed death.
In Jotapata Flavius Josephus mobilized all his anthropological, philosophical and
theological knowledge to convince himself and his people that self-killing in their
situation was fundamentally reprehensible. In the face of God suicide was wrong,
because man was not entitled to dispose freely of the soul that was poured by Jah-
wel into the body. The soul that prematurely left the body acted like the steersman
who during a storm had his ship go down by his own hand. Animals did not kill
themselves; that is to say, self-killing was against nature. No honour was to be
gained by destroying oneself: it was an act of cowardliness … Moreover, the com-
munity was damaged by the exit of its members.15 8
It is significant that Josephus took this stance at a time of great political turmoil
in the Jewish territory and the destruction of Jerusalem by the Roman army in
70 C.E., which inspired several mass self-willed deaths to avoid capture. Based
on the deep Jewish respect of life, criticism of self-willed death also occurred
in later rabbinic literature.
Christians added their voices to these growing criticisms, especially when
they realized that desire for martyrdom was taking the lives of too many Chris-
tians in the prime of life. Finally, with growing Christian power and, we may
presume, concern over the ill-effects of the practice of self-willed death by
’53Ibid. at 506, n. 45 (Hippocratis opera, I, 1, p. 5, II. 15-17).
‘5Supra note 11 at 126.
‘551t could be argued that views began to change just because the Platonists became more pop-
ular than the Stoics in this period and they were loyal to Plato. But still, the question has to be
asked, Why did the neo-Platonists become more popular than the Stoics? One reason could be that
the Stoics were perceived as promoting a view of self-willed death that was detrimental to society.
’56Cooper, supra note 104 at 30. See also R.T. Wallis, Neoplatonism (London: Duckworth,
1972).
157Cooper, ibid. at 31.
t5
8Van Hooff, supra note II at 181. See also Trowell, supra note 128 at 3; L.D. Hankoff, “Fla-
vius Josephus: Suicide and Transition” [1979] New York State J. Med. 937.
1994]
CASE COMMENTS
pseudo-Christian martyrs, 159 as well as by pagans, Christian leaders declared
any form of self-willed death tantamount to murder and condemned it in canon
law in the Councils of Braga (563); Auxerre (578); and Antisidor (590). At the
Council of Toledo (693), it was said that anyone who attempted suicide could
be excommunicated. Augustine (354-430 C.E.), writing from North Africa
where self-willed death was particularly popular, argued that suicide was often
a cowardly act. Condemnation in canon law was reinforced from the Middle
Ages on by (1) threats of hell; (2) confiscation of property; (3) degradation of
the corpse (for example, dragging it through the streets and hanging it on a gal-
lows); or (4) refusal of burial in consecrated ground (instead burying the corpse
at a cross-road by night with a stake driven through the heart). This negative
view of planned self-willed death was reaffirmed by Aquinas (1225-74), who
said that suicide was contrary to nature. In addition to sanctions by the Church,
suicide was viewed at common law
as a form of felonious homicide that offended both against God and the King’s
interest in the life of his citizens. As Blackstone noted …
the law of England ‘wisely and religiously considers, that no man hath a
power to destroy life, but by commission from..G6d, the author of it; and, as
the suicide is guilty of a double offence; one-spiritual, ininvading the pre-
rogative of the Almighty, and rushing into his immediate presence uncalled
for; the other temporal, against the king, who hath an-mterestin the preser-
vation of all his subjects; the law has therefore ranked this among the highest
crimes, making it a peculiar spec-esof felony, a felofyuommitted on
itself.’ 6
It may be surmised from this discussionthat the purpose 6f such law or rit-
ual was not to punish unfortunate peopyl rewhbwerew so filled with despair tht,
they took their own lives. Rather, it was to stop a.slippery slq pe in a society that
had legitimated planned self-willed death to the detriment–of its populace and
to provide a deterrent to prevent future cases. Thfs~poihtis borne-out by the fact
that once the practice of planned self-willed death was sufficiently checked,
there was legal leniency for suicides that occurred out of overwhelming despair,
desperation or insanity.’6′
The history of planned self-willed death in India had much the same fate,
though it occurred some centuries later. The perception that there was a problem
developed within the Buddhist tradition by the 8th century C.E., if S5ntideva’s
admonition –
that self-willed death by a beginning monk was not really useful
to procure universal welfare and therefore not a wise estimate of the spiritual
needs of a beginner –
responded to a social reality. The Brahmanical (Hindu)
59A corollary was the desire to protect authentic martyrdom.
160Supra note 1 at 596, citing Blackstone, Commentaries on the Laws of England, vol. 4 (Ox-
ford: Clarendon Press, 1769) at 189. For details on canon law, see Rosen, snpra note 100 at 273.
“”See the discussion on melancholy and madness by Rosen, ibid. Henry de Bracton, the chief
common law authority in the mid 13th century, exempted such cases. Some of the laws of the Con-
tinent at the time, such as the Sachsenspiegel, the Schwabenspiegel, and the Freising municipal law
code, also did not punish suicide.
REVUE DE DROIT DE McGILL
[Vol. 39
tradition, by the 10th century C.E., definitely tried to stop the practice in Hindu
circles in what were known as the Kalivarjya prohibitions. These prohibitions
declared that the various forms of self-willed death –
including those by the
sick and the old – were improper conduct for the good people (sddhus) in this
age. It is noteworthy that sati was not mentioned. Probably sati did not receive
the same condemnation because of the economic implications of supporting a
widow, especially a child widow, for many years or permitting her to inherit
property as allowed by law in regions such as Bengal where sati was particu-
larly common. Some other texts placed restrictions only on the upper castes: the
Trthaprakd.a forbade Brahmins from performing self-willed death at the holy
place Praydga, and the Suddhitattva said that the three upper castes could not
perform self-willed death.’62 Similarly, in the 11th century C.E., the Muslim
author, Alberuni, reported that self-willed death by burning was forbidden to
men of the two highest castes – Bralimins and Ksatriyas (though they some-
times avoided this law by hiring somebody to drown them in the Ganges);
women and men of the lower castes, however, burned themselves, the latter
when incurably ill or extremely infirm. 61
From this discussion it is striking that self-willed death continued to be
accepted for women and Sfidras, the lowest caste, thereby indicating that vulner-
able groups were not included in the reforms. Mainly after criticism by Muslim
rulers and later Christian missionaries – who carried their condemnation of
planned self-willed death in the West into their contact with other cultures –
were the various practices of planned self-willed death in India, including sal-
lekhand and sati, criticized also by Hindus. In 1802, during the British Raj, “the
legislature intervened to prevent the practice of suicide on the island of
Sagar.’ ” Regulation XVII of 1829 declared that abetting a suicide was an act
of homicide. In 1860, the Indian Penal Code (based on the British Penal Code)
declared that the attempt to commit suicide (section 309) and the counselling,
aiding or abetting of suicide (section 306) were punishable by imprisonment.
When suicide was made a crime, and suicide was interpreted to include the
former religiously legitimated types of planned self-willed death, these practices
came to a virtual halt (with only a few cases of sati reported in 1914, 1919,
1934, 1983).” Hence, in India too the law was not designed to punish those
unfortunate people who took their lives out of overwhelming despair but rather
to halt the practice of planned self-willed death because it was viewed, at least
in some circles, as detrimental to society. Nonetheless, the political strategy of
threatening self-willed death was sometimes used, Mahatma Gandhi’s threats to
fast to death for political victories against the British being a case in point.’66
162Kane, supra note 17, vol. 4, pt. 2 at 609.
163A.T. Embree, ed., Alberuni’s India, trans. E.C. Sachau (New York: W.V. Norton, 1971) at
170-71.
164Keith, supra note 14 at 35.
165For a discussion of the relevant legal cases, see D. Shanker, “Indian Legal Concepts of the
Right to Die” in Berger & Berger, eds., supra note 28, 103 at 110-111.
166An actual Asian Buddhist example of self-willed death for political reasons was the self-
immolation in 1963 of the Vietnamese Buddhist monk, Thich Quang-Ducto, in Saigon, to protest
the Vietnam War.
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CHRONIQUES DE JURISPRUDENCE
Westermarck reports that there were imperial prohibitions in China to try
to stop women from taking their lives when their husbands died (a Chinese ver-
sion of sati). “Sometimes suicide [was] classified by the Chinese as an offence
against religion, on the ground that a person owed his being to Heaven, and
[was] therefore responsible to Heaven for due care of the gift.”’67 And in Japan
as well there were internal criticisms against planned self-willed death. When
Ippen died, and then six of his disciples also killed themselves in sympathy, the
next patriarch of the Pure Land school, Shinkyo, declared that they did not reach
the Pure Land because their action was self-willed, preempting the grace of
Amida Buddha, who presided over the Pure Land, to save them. 6′ Moreover,
there were “strict and frequent prohibitions”’69 by the Tokugawa shogunate (as
in 1744) to prevent samurai warriors from following their lords to the grave.
Seppuku was finally made illegal after the Meiji Restoration in 1868, following
an incident in which thirteen samurai performed seppuku in response to the
French government’s demand that they be punished because they had fought
with some French soldiers near Osaka. Because of the notoriety that this event
caused in the West, its merits were debated by the new Meiji government, intent
on making Japan a modem state, and it was banned in 1872 as a “practice
unheard of in the civilized West.’ 170 Still, there were many cases of seppuku,’7′
followed by a major revival of the custom during World War II when “countless
numbers of Japanese military officers committed seppuku in [the] Pacific
islands … Immediately after the end of the war in 1945, moreover, the serene
outer ground of the Imperial Palace in Tokyo was dyed with blood by some Jap-
anese men and women, both military and civilian, who calmly committed sep-
puku in tens and hundreds as an ‘apology’ to the Emperor for having lost the
war.”‘4
7 2
It is clear that when societies perceived a slippery slope with reference to
planned self-willed death, they resorted to religious leadership and law to try to
stop it. This occurred in the West some centuries before it occurred in the East.
It is difficult to know the reason why. One possibility is that the slope was more
severe in the West, perhaps because the underground phenomenon of physician-
assisted suicide by hemlock had become popular in many circles, and so the
problem was detected and addressed more forcibly. It is also possible that the
West caused an earlier closure on this phenomenon because it was associated
with one of the major crises in the history of the civilization: the decline of the
Roman Empire, which was concomitant with a number of epidemics and a fear
of depopulation by the elite strata of Roman society.
By contrast, it may be argued that in India the practice of planned self-
willed death continued for a longer period of time because it was a phenomenon
167Stpra note 9 at 18.
163See Becker, supra note 70 at 549.
169Fus6, supra note 78 at 60.
170Ibid. at 59.
171T. Harada, “Suicide (Japanese)” in Encyclopaedia of Religion and Ethics, supra note 14 at
35, gives the statistics from 1905 to 1915; there was a low of 9,413 at the beginning of the period,
rising systematically to a high of 12,705 at the end of the period.
’72Fusd, supra note 78 at 57.
McGILL LIW JOURNAL
[Vol. 39
related to inter-religious competition among the Jains, Buddhists and Hindus,
the latter growing in power at least in part because of their popularization of an
easy means to salvation (including some forms of self-willed death). Only by
the 10th century, when Hinduism emerged as the key power broker inthe sub-
continent, did Hindus direct their attention to the issue of abuse of such prac-
tices and proposed reforms of the tradition of planned self-willed death. But
because of the subsequent crises of foreign rule first by Muslims and then by
Christians, it was difficult to deal with questions of internal reform that Were so
central to questions of religious identity, and so the process of reform was
delayed until the 19th century. In Japan, as well, effective reforms were compar-
atively late, though there had been a series of attempts to halt the practice of
planned self-willed death over the centuries. One major reason for a slower
response in Japan may have been the fact that planned self-willed death was
central to the identity of the samurai warriors, who were in power for a number
of centuries.
In all these contexts, both West and East, criminal law was most effective
in halting the slope. Once it had served its purpose, however, greater leniency
was given to specific cases of suicide out of overwhelming despair, etc. This led
to the decriminalization of suicide in the modem period in many Western coun-
tries and in Japan. But it is also clear that once a tradition of planned self-willed
death had been culturally and/or religiously endorsed in a society, it could be
revived under the right circumstances, as with the Japanese during World War
II.
Conclusion
Justice Sopinka, speaking for the majority of the Supreme Court of Can-
ada, held that the State has an interest in protecting life. From the cross-cultural
historical evidence gathered here, it can be seen that this has been a task of
many societies. In former times, such protection was usually the responsibility
of religion, which had powerful deterrents in the form of threats of hell, degra-
dation of the corpse, or religious law.
In the dissenting opinion in the Rodriguez case, it is implied that since the
decriminalization of suicide by Parliament has made suicide no longer illegal,
suicide is now not only legal, it is also a right: people have a “right to choose
death” and a way to die with dignity.’ Moreover, since the Canadian Charter
of Human Rights and Freedoms guarantees equal rights, a person who is pre-
vented from exercising a legal act because of physical disability experiences
discrimination. Therefore, such a person has a right to assistance to kill herself
or himself.
But such an interpretation of the Canadian Charter of Human Rights and
Freedoms is debatable. To decriminalize an act is not the same thing as to argue
that people have a positive right to do it and a right to help in doing it if they
cannot do it themselves. Such an interpretation was certainly not the intention
173Supra note 1 at 620, McLachlin J.
1994]
CASE COMMENTS
of those who decriminalized suicide. The evidence of human history regarding
the practice of planned self-willed death and physician-assisted suicide also
serves as warning that such an interpretation, if it leads to a change in law, may
also be harmful to society in the long run.
A principle of nonviolence or of the sanctity of life is enshrined in many
societies as the fundamental value. This is certainly true of some of the societies
influenced by the religions under consideration here: Jainism, Hinduism and
Buddhism all had made nonviolence the central value, and this influenced the
values (though not always the behaviour) of South, Southeast and East Asia.
Once nonviolence or the sanctity of life was enshrined, a few exceptions such
as self-defense or a just war were allowed in some societies. In the final anal-
ysis, all religions and societies that sought to protect life still had to deal with
the basic paradox of life: that we have to eat and therefore kill some living crea-
ture in order to live. This supports Justice Sopinka’s argument that the sanctity
of life is the fundamental value, though some carefully considered and limited
exceptions may be considered. Suicide out of despair has never been viewed
as a positive thing but as an extremely regrettable event which societies have
tried hard to prevent. And even when planned self-willed death was legitimated
during some periods of the history of some societies, it was certainly not a blan-
ket endorsement of the freedom to die at any time or by any means or with help.
On the contrary, the choices were very carefully limited. Obviously, religious
communities were seeking to balance the interests of the society and the indi-
vidual, much as Justice Sopinka argued modem societies must do (though he
opposed self-willed death).’75
More importantly, despite the attempt to legitimate self-willed death within
a well-defined boundary, it seems that the legitimation of planned self-willed
death developed (sooner or later) into a slippery slope. Even in one of the most
conservative cases, that of early Buddhism, which did not endorse self-willed
death except possibly in the case of the planned self-willed death of a person
experiencing unbearable pain in the process of dying who had no desire for
rebirth –
allowing just one exception also led over time to a slippery slope, as
evidenced in Sdntideva’s concern about young monks willing their deaths and
in some of the practices of East Asian Buddhism.
When Justice Sopinka argued that “[a]ttempts to fine tune this approach [of
protecting life] by creating exceptions have been unsatisfactory and have tended
to support the theory of the ‘slippery slope,”” 76 his judgment is again vindicated
by the cross-cultural evidence of the large-scale societies presented here. For in
India, Japan, Greece and Rome, we can recognize a definite increase in the
types of motives, methods and groups; more importantly, these cultures them-
selves had recognized a problem with an escalation of planned self-willed death
prior to the critique of foreigners and had made an initial attempt to stop the
practice.
1741bid. at 592.
‘751bid. at 589-90.
1761bid. at 613.
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I have not brought Nazi Germany into this discussion but it may not be out
of place to remember that Hitler received his inspiration for “mercy death” from
the work of a jurist and a psychiatrist, Karl Binding and Alfred Hoche, who
argued in 1920 for the legitimation of death assistance on the basis of compas-
sion for an incurably ill woman and on the basis of problems of allocation of
societal resources.’ According to the proposal of Binding and Hoche, permis-
sion would be given by a government board consisting of a physician, a psychi-
atrist and a lawyer. Such mercy killing was to be preceded by conscientious
deliberations carried out by appropriate medical procedures and agreement
reached with the patient, the patient’s legal representatives and the family.
Therefore, it was rational in approach; it fostered external accountability to
experts; it insisted on informed consent for competent adults (although others
could decide for incompetent adults); and it provided for government regula-
tion. The recommendations of Binding and Hoche quickly led to the worst slip-
pery slope in history under the Nazis. The stage was set with Hitler’s early prop-
aganda film “I Accuse”, 78 which appealed to the public to legitimate the use of
euthanasia in order to relieve the suffering of an incurably ill woman; later the
types of groups were increased: retarded and deformed newborns; retarded and
deformed children; mentally ill adults; people with hereditary diseases; the
handicapped; and other “undesirable” groups (homosexuals, Jews, Poles and
Gypsies). Such legitimation of planned self-willed death occurred at a moment
when German society was profoundly demoralized and economically ruined.
In this context we should not forget that in 1938, the Euthanasia Society
of America was founded with the purpose not only to allow the terminally ill
to choose their death, but also to eliminate the congenitally unfit, those who are
“defective, without value.and tortured.”‘ 79 And in 1939, an American Institute
of Public Opinion poll showed that 41.4 percent favoured mercy deaths for
hopeless invalids and 53 percent of physicians did. 8’ In short, views in America
paralleled in part those in Germany at the time, although only in Germany did
the government give its official sanction. The tendency to attribute the German
atrocity solely to Hitler is a case of selective amnesia which absolves other
Western societies of any participation in the utilitarian values that contributed
to this kind of thinking.
Many of the factors that could contribute to a slippery slope are present in
our society, and we cannot afford to be complacent about this danger. By
decriminalizing suicide in the modem period at exactly a time when traditional
religious authority is waning and by linking planned self-willed death to the
fundamental values of our society (autonomy and the freedom to choose) at a
177K. Binding & A. Hoche, “The Permission to Restore Life Unworthy of Life”, cited in R.J.
Lifton, The Nazi Doctors: Medical Killing and the Psychology of Genocide (New York: Basic
Books, 1986) at 46.
17Hitler’s film “depicts a physician giving a lethal injection to his incurably ill wife in response
to her desperate plea that he do so to relieve her of her terrible pain and suffering” (Lifton, ibid.
at 49).
179D. Humphry & A. Wickett, The Right to Die: An Historical auid Legal Perspective of Eutha-
nasia (Eugene, Oreg.: Hemlock Society, 1986) at 14.
‘t0lbid. at 18.
1994]
CHRONIQUES DE JURISPRUDENCE
time when we have a growing aging population and AIDS –
one of the most
devastating epidemics in human history which will create great economic and
emotional burdens – we should be alert to the danger of another slippery slope.
It is a well-documented fact that suicides occur in families;’
there is an element
of imitation. (Just as there was an element of imitation in the planned self-willed
deaths of members of other groups such as Japanese samurai, Greek philoso-
phers and Roman senators.) As seen here, when societies are destabilized
because of war (Greece after the losses posed by the Pelopponesian War; Rome
after its civil war; North Africa after the breakup of the Roman Empire; and per-
haps Japan during the Mongol invasions and World War 11), planned self-willed
deaths increase. Recent studies on suicide also suggest that they increase when
there is a general tolerance of suicide in a society, social breakdown, and a
desire for control or omnipotent mastery, the last avenue in which to exert free
choice. 2 Planned self-willed death and assisted suicide increase, moreover,
when the human body is devalued (for example, when its sheer existence is
viewed as an obstacle to enlightenment or heaven as in some religions) or when
human beings see no purpose to human life extending beyond productivity or
the grave (as in some secular philosophies of both the ancient and the modem
world).
In a democratic society such as Canada that turns to public opinion polls,
votes in Parliament (promised by the Canadian Prime Minister in the wake of
the physician-assisted suicide of Sue Rodriguez), or referendums to determine
ethical action rather than to the historical record for clues to human follies and
wisdom, we should be alert to possible problems. This time around a slippery
slope (which need not implicate the State) would likely involve more and more
deaths of “ordinary people”, thanks to legitimation of assisted suicide, especi-
ally physician-assisted suicide, as. an easy means to die. It seems that a slope is
already occurring in Western societies. Sue Rodriguez was, for instance, not at
the very end of her life nor was she in intolerable pain that could not be con-
trolled by pain relief measures.8 3 This suggests that freedom to choose became
for her the issue, not the elimination of unbearable pain. Given the vagueness
181See Suicide in Canada: Report of the National Task Force on Suicide in Canada (Ottawa:
Minister of National Health and Welfare, 1987) at 36-37.
182See ibid. at 25-32.
183Robin Brunet writes about how people claim they were misled by the description of the stage
of Sue Rodriguez’s disease at the time of death:
“I was led to believe Sue couldn’t breathe or swallow. How did she manage to have
a ‘fine dinner’ the night before she died?” … Dr. Downing says the answer is simple:
Her condition was grossly exaggerated. “During her final days she had difficulty swal-
lowing at times but could still eat solid food,” he told B.C. Report. In a three-page press
release that torpedoes the fundamental argument for euthanasia, Dr. Downing and Dr.
Debra Braithwaite (who administered palliative care to Mrs. Rodriguez) revealed the
ALS sufferer’s true physical condition. “In the original arguments for euthanasia by
Sue and others, the picture frequently painted was of a horrible death with pain,” they
wrote. “If you note the clear change in Sue’s remarks over this past year, she stopped
talking of the fear of those symptoms. The reason for this was the good palliation and
relief she obtained.” The doctors added: “Sue was not in any physical pain, she was
not near death” (“Marketing Death” British Columbia Report (28 February 1994) 22
at 23-24).
McGILL LAW JOURNAL
[Vol, 39
of the definition of terminal illness (in the sense that a person may live with a
terminal disease for a long period of time), other people may argue, as Rodri-
guez eventually did, that they have the right to take their lives simply because
they fear a painful stage of their illness. Furthermore, self-willed deaths by
people with AIDS, at various stages of the disease, are becoming common in
Canada and other Western nations. Finally, the fact that critics of the Dutch
guidelines point to many unreported cases of euthanasia and examples of invol-
untary active euthanasia suggests that a slippery slope is already taking place.’
We should remember that our legal decisions may not only profoundly
influence our own society, but also, in our shrinking world, non-Western soci-
eties as well. Because some societies such as India and Japan have had long tra-
ditions of self-willed death, they may be inspired by new Western laws (should
assisted suicide be legalized) to legitimate them again, especially in a post-
colonial era that reasserts indigenous identity. For example, there was discus-
sion about decriminalizing the law against suicide in India.”5 Before this hap-
pened, however, a modem case of sati occurred (in 1987), which seems to have
caused second thoughts.” 6 Still the debate continues. Now when some funda-
mentalist Hindus argue for a woman’s right to perform sati, saying that as long
as it is voluntary, it is a death with dignity, and in any case a woman has a right
to do what she wants with her own body, they point to the growing support for
assisted suicide and active euthanasia in the West as a voluntary, self-willed
death with dignity to support their argument.’ The Tamil guerrillas in Sri
Lanka, who wear amulets with cyannide which they take if they are captured,
are no doubt drawing on the ancient South Indian tradition of self-willed death
by warriors. Even in the clash in India between students and the central govern-
ment over the reservation policy (in 1990), a number of students burned them-
selves to death in protest, in what appeared to be a kind of epidemic. 8
184Supra note 1 at 603. See also R. Fenigsen. “A Case against Dutch Euthanasia” (1989) 19:1
Hastings Center Rep. 22 (Special Supplement); C.F. Gomez, Regulating Death: Euthanasia and
the Case of the Netherlands (New York: Free Press, 1991).
‘a There were two legal discussions. One was by the Bombay High Court (Maruti Shripati
Dubal v. State of Maharashtra, Writ Petn. no. 641 of 1986 (1987), 93 Crim. L.J. 743 (Bombay H.
Ct.), cited in Bilimoria, supra note 50 at 351). The other case was decided by the Andhra Pradesh
High Court in 1988 (Chenna Jagadeeswar v. State ofAndhra Pradesh, Criminal Appeal No. 165
of 1987 (1988), 94 Crim. L.J. 549 (Andhra Pradesh H. Ct.), cited in Bilimoria, ibid. at 353).
186See M. Kishwar & R. Vanita, “The Burning of Roop Kanwar” (1987) 42-43 Manushi: A Jour-
nal about Women and Society 15-26 for details of the case. Almost 160 years after sati was
declared to be culpable homicide by Regulation XVII of 1829, during the British Raj, incidents
of sati are on the rise again in modem India, instigating the Indian Parliament to pass yet another
law (December, 1987) to check the practice. According to the new law, the death penalty may be
imposed on those who help carry out the ritual of sati; the woman who tries to perform sati may
be sentenced to six months in jail; those who glorify sati may be given prison sentences of as long
as seven years; and the government is empowered to dismantle memorials and temples related to
sati. See “Death Penalty Approved for Aiding Hindu Suicide Rite” The (Toronto] Globe and Mail
(17 December 1987) A10.
’87See K.K. Young, “Women in Hinduism” in A. Sharma, ed.. Today’s i’onan in World Reli.
188K.K. Young, “The Indian Secular State under Hindu Attack: A New Perspective on the Crisis
of Legitimation” in N. Smart & S. Thakur, eds., Ethical and Political Dilemmas of Modern India
(New York: St. Martin’s Press. 1993) 194 at 198.
gions (Albany: State University of New York Press, 1993) 121.
1994]
CASE COMMENTS
The Jains are interested in reviving their practice of sallekhand. They have
consistently maintained that sallekhand has no relation to other Indian forms of
self-willed death such as sati.5 9 Some Jain leaders today have discussed mod-
ifying the traditional Jain practice of sallekhand by saying that in a modem
medical context, lethal drugs for pain relief, “to bring on the impending death,”
may be used when pain is unbearable.’ 9 This suggestion would change a prac-
tice which was traditionally more analogous to withholding or withdrawal of
treatment than to physician-assisted suicide and active euthanasia.
In Japan today, suicide is not illegal, though it is a crime to assist or
encourage a suicide. Nevertheless, the topic of physician-assisted suicide is
being debated, and there is a growing movement to legalize euthanasia.’ 9′ Kato
says that it is “the Japanese way.” Fus6 argues that seppuku must be understood
with reference to Japanese culture, and that as a culturally and religiously legit-
imated form of self-willed death it should not be assimilated to the Western con-
cept of suicide, for that would be a superimposition of “provincial Euro-
American values and behaviour patterns.”‘” Although he stops short of calling
for a revival, others may not, given the recent reassertion of Japanese identity
and arguments that ethics is somehow foreign – more specifically, Western –
and may distort indigenous habits of thought, such as the idea that time is cyclic
and that death is mediated by lengthy rituals and a calm mind. 3
And in China, a recent poll revealed that over 90 percent of medical work-
ers are in favour of active euthanasia, and that it is sometimes being practiced
underground. The Chinese author of one report in a prestigious journal argued
that the Chinese should “regard euthanasia, like … eugenics … as part of the
agenda of our modernization and confirm its social value, moral value and
importance in law.”‘”
Some people argue that it is irrelevant to look to history for answers to
modem problems. Because there have been tremendous social and technologi-
cal changes, it is claimed, there can be no meaningful analogies with the past.
I would argue, however, that we need first to do our homework on a cross-
cultural and historical basis. As this study has shown, there are many conditions
in traditional texts that sound very similar to ones encountered today: from the
189See Justice T.K. Tukol, Sallekhand Is Not Suicide (Ahmedabad, India: L.D. Institute of Indol-
ogy, 1976).
19See Bilimoria, supra note 50 at 347, reporting on a recent conference in India which examined
the relation of euthanasia and sallekhand.
191Becker, supra note 70 at 552, discusses, for instance, the conditions described by the Nagoya
High Court (1962) which would make assisted suicide/euthanasia acceptable. Becker, however, is
an advocate of active euthanasia and interprets Buddhism in this fashion. See also Kato, supra note
28 at 76-79, who examines other passages and gives quite a different interpretation. He also sur-
veys current discussions on this topic by jurists and physicians.
192Supra note 78 at 63.
19 3H. Hardacre, “The Response of Buddhism and Shinto to the Issue of Brain Death and Organ
Transplant” (Paper presented to the East-West Center Conference on Japanese Spirituality, January,
1992) [unpublished].
194S. Da Pu, “Euthanasia in China: A Report” (1991) 16 J. of Medicine and Philosophy 131 at
137.
REVUE DE DROIT DE McGILL
[Vol. 39
common human problem of dying, to the existence of an aging population in a
time of political and economic destabilization, to the exploitation of vulnerable
groups, to the claims of freedom and rational choice to determine the time, place
and mode of death.’ This suggests that there may be some meaningful analo-
gies.
It is important to realize, however, that even though slippery slopes existed
in those societies that legitimated self-willed death, the existence of a pheno-
menon or even its popularity does not determine whether it is good or bad. This
is the problem of how to derive an “ought” from an “is”. There must be good
reasons why an act should not be done. In the final analysis, such “good” rea-
sons might include the following.
First, most species do not kill their own kind or themselves. Humans,
unlike animals, are conscious of death and have greater freedom of behaviour
(including the ability to kill other humans and themselves). This contributes to
their ability to adapt and therefore to survive as a species. But they must use cul-
ture to limit this freedom so that it does not become destructive, especially at
times of personal or social crises when people are filled with despair and see no
reason to live. Therefore, cultural systems consciously promote the value of
life-affirmation to prevent the abuse of human freedom.
Societies acknowledge, moreover, that human beings are interdependent.
Since human beings have phases of dependency (e.g. infancy, childhood, old
age) or particular situations of dependency (e.g. times of devastating illness,
extreme mental despair or abject poverty), they need the protection of others at
critical points in their lives. Because of the unpredictability of illness, the inher-
ent ambiguity in any quality of life arguments (By whose standard? Will it
always be this way?) and the fact that the moment of death itself is always
unknown, it has been important to provide support in order to encourage life-
affirmation that would sustain people through difficult periods in their lives.
Because it may not be in the immediate self-interest of others to offer such pro-
tection or support, human beings have been culturally encouraged to be altruis-
tic to protect others when they are dependent so that they themselves will be
protected, in turn, when they are dependent.
This is, in effect, a kind of human life-insurance policy that becomes
encoded into cultural systems. Human beings can and sometimes do ignore the
vulnerability and dependency of others, but there are good reasons for their own
survival and well-being not to do so, for there already have been and most likely
will be times when they will need such help themselves. Therefore, they ought
195From my survey, the only thing that is dramatically new today is the existence of certain kinds
of technology, specifically life-support systems and other extraordinary measures that can maintain
indefinitely the lives of persons who otherwise would have died by natural causes. This creates the
historically unprecedented human problem of being imprisoned indefinitely by a machine. Many
modem societies have already addressed this specific problem, however, by legally allowing for
the withholding or withdrawal of treatment, albeit within carefully established boundaries deter-
mined by living wills or court hearings. In Canada, for example, the case of Nancy B. v. HrteI-Dieu
de Quibec, [1992] R.J.Q. 361, 86 D.L.R. (4th) 385 (Sup. Ct.), establishes the legal precedent for
such action. See also Rodriguez, supra note I at 598.
1994]
CHRONIQUES DE JURISPRUDENCE
to act altruistically toward others to set an example and help create a societal
agenda to ensure that help will be there for them when they need it. Such altru-
ism is a duty and responsibility, and sometimes when it is beyond the call of
duty –
a gift. But the wise will see that it is also important for the self on a
long-term basis, not to mention human survival and the well-being of the indi-
vidual, the family, the group and even the species. Culture, which is the collec-
tive wisdom of a human society, has built these insights into its codes of behav-
iour, ethics or law so that the wheel does not have to be reinvented by each
person or each generation (a precarious proposition).
Second, a reluctance by societies to endorse self-willed death and
physician-assisted suicide can be attributed to the problem of determining the
real intention or motive of a person’s act when there are genuine conflicts of
interest. Despite the recognized importance of altruism for human communities
and the cultural norms to try to ensure it, there is always the possibility that indi-
viduals will be genuinely short-sighted or ignore or conveniently forget cultural
norms and act selfishly for their own short-term benefits and goals. Some par-
ents may abandon a handicapped child, for example, and some couples rihay not
provide physical or emotional support for an old in-law who becomes temporar-
ily ill.
Many people who were assisted in killing themselves by hemlock in West-
em antiquity were probably never sure if a relative or other interested party had
encouraged or even paid a physician to use poison to kill under the disguise of
relieving pain. This is likely why physicians who did bedome secretly involved
in helping people die preferred to give the so-called “medication” to the person
and then let him or her take it. Physicians also had the problem of protecting
their reputation as healers, especially in an age when there were a number of
quacks. If they were in the business of providing a death potion, then they
would be associated with causing death rather than healing. The very fact that
people may die despite medical treatment meant that it was always difficult to
maintain the reputation of physicians. And the fact that poison usually worked
quickly and effectively (making reversal difficult if a person changed his or her
mind), or severely damaged a person if the dosage was inadequate, meant that
doctors generally preferred to stay out of such activities. They had to try con-
stantly to ensure that their intentions were life-affirming and transparent so that
their reputation would not be marred and so that people would have confidence
in them.
The Buddhist priests who were physicians were warned in no uncertain
terms not to use their skills for such tasks. By contrast, there was for a long time
no such direct taboo in Greek and Roman antiquity. Perhaps the fact that phy-
sicians were often slaves and already of low status contributed to the fact that
physician-assisted suicide became common and was gradually perceived as
harmful to the society. Eventually, the Hippocratic Oath brought the Western
medical practice under the same controls that the Buddhist medical practice had
deveioped some centuries eariier.
It is only realistic to acknowledge that in extremely difficult human situ-
ations involving others there may be a real tug-of-war between selfish and altru-
McGILL LAW JOURNAL
(Vol. 39
istic motives. Moreover, selfish ones may be denied or disguised by seemingly
altruistic ones. Because it is so difficult to determine what are the real intentions
of an individual, societies have tended to act very conservatively where ambi-
guity can occur, especially when intentions become a matter of life and death.
In general, complex societies have encouraged a principle of nonviolence or
sanctity of life and then have made only a few exceptions (e.g. self-defense or
a just war). As we have seen, the legitimation of self-willed death in certain cir-
cumstances was an experiment that was tried because there seemed to be good
reasons for such an exception –
such as compassion to those who are in
extreme pain –
but proved problematic for the society as a whole in the long
run. In the final analysis, the boundary between unplanned irrational suicide and
planned rational self-willed death was always fuzzy. Desperate people who
committed suicide often did think about how to accomplish the act; they too
planned. Moreover, they too often thought about the reasons, and came to the
conclusion that they had good reasons. And we should not forget the ambiguity
involved even in cases of self-willed death that ostensibly had no help from oth-
ers. It is just too difficult to know what thinking is truly independent from gen-
eral cultural values taught to an individual from childhood.
To conclude, there are “good reasons” for any human society to protect the
life of its members through cultural norms and laws. The fact that planned self-
willed death and especially physician-assisted suicide created a slippery slope
in those complex societies that experimented with it being an exception to the
general rule of nonviolence or the sanctity of life means, moreover, that the
State should avoid legitimating planned self-willed death and especially assisted
self-willed death. Spontaneous suicide out of despair, etc. should remain
decriminalized as long as the society has other mechanisms for suicide preven-
tion.
When I began this research some years ago, I had not reflected deeply on
the issues and would have agreed quite quickly that people should have ‘the free-
dom and the right to choose their mode of dying, including physician-assisted
suicide. As the pieces of the puzzle were put together from my historical
research, first on India and then on other societies, I began, however, to reassess
my earlier values. I now think that between (1) prolonging life for a long time
through “imprisonment” by the technology of life-support systems, thereby cre-
ating both the reality of torture (psychological and physical) or a symbol of its
tyranny, and (2) shortening the process of dying by physician-assisted suicide
and euthanasia, thereby creating problems of intentionality and the possibility
of a slippery slope, there should be a middle path that avoids these extremes.
I think that legalized withholding or withdrawal of treatment within careful
boundaries, good palliative care, encouragement of research into better pain
relief, and maintenance of the prohibition against physician-assisted suicide in
the criminal codes of Canada and other nations are all necessary at this histor-
ical moment.
Aq Tn-tice Snninkn haq qahd
there needs to he a balance between the inter-
ests of the individual and the State.’96 It will take compassion on the part of care-
1’9 Rodriguez, ibid. at 592-93.
19941
CASE COMMENTS
givers and altruism on the part of the dying to support and accept living out the
natural life-span when extreme pain is involved: These are very important gifts
to society and an expression of wisdom in the long run. For paradoxically, the
dying (and those who take care of them) are the stewards of the living through
their support of a nonviolent death in which no one is directly causing some-
one’s death. Is this not essential for security and hope at the core of human exis-
tence? ‘9
197
1n this final assessment, I must admit that I have been profoundly influenced not only by the
historical materials gathered here, but also by the concept of nonviolence, which has inspired the
Indian religions, my field of study over many years. I have also been deeply concerned about phe-
nomena such as sati, the self-willed death of a woman who chooses to follow her husband in death.
Although I have sincerely tried to do justice in my writings to its dimension as a religious and
heroic ideal which parallels that of the self-willed death of many male religious figures, I also can-
not forget that women, although they were ostensibly making a free choice to die in this manner,
lacked the real choices that men had in the society and were more prone to perceive themselves
as a burden and to be perceived by others in this way. Were they, then, the vulnerable who must
be protected by society, as Justice Sopinka suggests? And do examples like this give us an insight
into how we should proceed with caution even when the context is ostensibly one of free will?
