Essay one: legal explanation.

• Author: Binding, Karl
• Position: Permitting the Destruction of Unworthy Life: Its Extent and Form. - First published in 1920 by Verlag von Felix Meiner in Leipzig, Germany

At the end of my life, I presume to restate my opinion on a question which has occupied my thinking for many years, but which most people timidly avoid because it is seen as delicate and hard to answer. Indeed it could not unjustly be said that in this case we have to do "with a sticking point in our moral and social outlook."(1) It consists in this: Should permissible taking of life be restricted, except in emergency situations, to an individual's act of suicide as it is in current law, or should it be legally extended to the killing of fellow human beings, and under what conditions?

Dealing with this issue directs us to many cases whose circumstances shake each of us to the core. Hence it is even more necessary not to leave the last word either to feelings or to exaggerated scruples, but instead to decide the matter on the basis of a thoughtful, juridical evaluation of the grounds which favor, and the considerations which oppose, an affirmative answer. Only on such firm foundations can we build further.

Therefore, I put the greatest emphasis on strict legal argument. For this very reason, a firm starting point can be secured only in current law. To what extent, then, is killing humans allowed (2) today again apart from emergency situations, and what is to be understood by this? Recognizing a right to kill would be the opposite of "allowing." We are not considering any such right here.

Scientific clarification of the statutory starting point is even more critical because it is so frequently understood very vaguely or even totally misunderstood.

Part I: The Current Legal Status of Suicide,

and So-Called Complicity in It

(1) Human beings are raised into existence by an irresistible force. Coming to terms with this fate is our life task. How we do that, within the limits of our freedom of movement, is up to each of us alone. To that extent one is the native sovereign of one's own life.

Despite the fact that the book here translated has been mentioned in a variety of recent works, including Robert Lifton's Nazi Doctors (at pages 45-48), obtaining an intact copy of the original German text was strangely difficult. The only North American library that appears to own the book is Harvard's Widener Library, which, however, was unable to locate it.

We are therefore most especially grateful to Professor Doctor Reinhard Lauth of Munich for his personal assistance, and to Mr. Richard Meiner of the Felix M einer Verlag for his remarkable generosity in producing for us a clean copy of the original book from the private Meiner Verlag archive. We were doubly fortunate in this, since the Meiner Verlag had only just rediscovered the volume, which they had thought to be irretrievably lost. Without Professor Lauth' s kind inquiries, and Richard Meiner's generosity, this translation would not have been possible.

A photocopy of the original Meiner Verlag book is now held by Clark University's Goddard Library and is available to scholars who have need of it.--W. Wright, P. Derr.

1 Jost, Das Recht aufden Tod [The Right to Die--Trans.], Gottingen, 1895, p. 1.

2 Freigegben--Trans.

The law, which is powerless to make the strength of individuals proportionate to the burdens laid upon them by life, expresses this idea distinctly by recognizing everyone's freedom to end his own life.(3)

After an extended, deeply unchristian, interruption in the recognition of this right (an interruption demanded by the church and supported by the obscene idea that the God of love could wish that human beings not die until they undergo endless physical and spiritual suffering),(4) it has now been fully reestablished (except in a few backward countries) as an inalienable possession for all time. Natural law would have grounds for calling this freedom the primary "human fight."

(II) But how this freedom is to be viewed in the context of our statutory provisions is by no means certain. And this uncertainty expresses itself both in a false terminology and in false practical inferences. It is high time to replace the prevailing inexact handling of these pressing questions with the highest scientific precision, so that, in particular, the fundamental legal distinction between the misnamed act of "self'murder(5) and killing consenting persons is clearly recognized.

Today one finds two fundamentally incompatible conceptions of suicide. They agree only in the fact that they are both false and that they eventuate in the postulate of the suicide's immunity from punishment-(6)

(1) According to the first concept, suicide is an unlawful act, a crime; it is qualitatively closely related to murder and manslaughter because it violates the prohibition on taking human life.(7)

Such an extension of the standards for killing is wholly alien to our common law authorities, and all arguments designed to show the criminal qualities of suicide fail.

Religious reasons have no probative force in law for two reasons. First, in this instance, they rest on a wholly unworthy concept of God. Second, law is thoroughly secular and is focused on the regulation of our external common life. Additionally, the New Testament says nothing about the problem of suicide.

Considered as a proof of suicide's illegality, Gaupp's unsupported and "pharisaic" statement, that suicide is always immoral and therefore self-evidently illegal, has the same weakness.(8)

Even the hard and loveless term "self-murder"(9) is tendentious when used for the act of killing oneself because cowardly secrecy and baseness are essential properties of "murder." Think only of the great number of psychologically disturbed people who do violence to themselves!(10) In addition to acts of self-killing which can sink to the lowest grade of frivolous vulgarity and cowardice, there are examples of altruistic suicide by psychologically healthy people, who stand on the highest moral level.(11) Indeed, there are suicides that were not committed which, precisely by their omission, earn considerable moral blame. Moreover, an unethical action is not always per se illegal, and legally permissible actions are not always ethical.

A proof of suicide's illegality could be based only on an exact study of statutory rules concerning killing.(12) But there are no grounds for such a proof, since suicide is neither legally punishable nor unambiguously to be named a crime.(13) On the other hand, the illegality of suicide could appear to be a conclusion inferred from legally secure premises. Feuerbach tries this approach but in a most unsatisfactory way: "All who enter the state (and newborns do not do so) pledge their powers to it and act unlawfully if, by their own choice, they deprive the state of their powers by suicide."(14) Obviously, this is a vacuous petitio principle. Thus, not only do we lack all evidence(15) for calling suicide a crime, but also to this very day it never occurs to any suicide or to anyone judging a suicide to view it (even remotely) as forbidden or to put it on the same level as homicide and manslaughter.

Whoever adopts the view that suicide is a crime must, assuming the guilty act, in all cases consider accomplices in suicide(16) as equally delinquent. But from suicide's immunity from punishment, one may not dogmatically infer that the "accomplice" is also immune(17) because the latter is acting illegally against someone else's life. Therefore, if suicide is taken to be a crime, the accomplice is more deserving of punishment than those who act only against themselves. Further, if suicide were taken to be a crime, then the state agencies responsible for crime prevention would have the right forcibly to restrain suicidal individuals and their accomplices from the act; and, naturally, these individuals would have no right to defend themselves in the face of this forcible restraint.

(2) Thinking purely from the standpoint of natural law theory, even if this view is not championed by the natural law theoreticians who are strongly influenced by church doctrine, one comes to the second opposite (and false) opinion of suicide: Suicide is the exercise of a right to die. This view completely lacks support among the authorities because one cannot consider making suicide as such immune to punishment. There are enough unpunishable crimes.

Thus, this opinion is a purely theoretical construction, which involves both a complete misunderstanding of the nature of subjective rights and the usual confusion about the automatic linkage between prohibitions and such rights. Since only the killing of fellow humans is forbidden, it is inferred that all persons have a right to life, a right in relation to life, and a right over life. But all three statements are equally wrongheaded. By virtue of this ownership right, they reason, all persons can equally maintain life or discard it; thus, they say, all persons possess a right to kill themselves(18) and may in their own cases even transfer this right to others.(19)

If I ignore this completely impossible fight to, or in relation to, or over, life (E. Rupp, p. 15, suffices for this purpose) the following objection must be brought against the claimed right to suicide: rights of action are granted only for ends which the legal system finds generally compatible with, or required by, itself. This objection contains a general approval of actions done for the sake of the law. Such approval is unconditionally denied to suicide. Indeed, in not a few cases, suicide has patently very bad consequences for the domain of law: for example, initiating extensive demands on public welfare. It can even be the occasion for the violation of weighty legal obligations: e.g., the duty to pay one's debts, to serve one's sentence, to hold a dangerous outpost against an enemy, or to participate in an attack.

If one nevertheless insists on recognizing the legality of suicide, then it follows:

(a) that no one can have a right to prevent the suicide in his lawful act;

(b) that the suicide has a right to self-defense...