Death Is That Man Taking Names: Intersections of American Medicine, Law, and Culture (review)

Robert Burt, the Alexander M. Bickel Professor of Law at Yale, works at the intersection of law, medicine, psychiatry, and ethics. He is especially drawn to problems and policies related to death. For at least twenty-five years, he has tried to articulate the proper role for law and social policy amid the tangle of medical judgments, human relationships, and psychological pressures that surround choices about withholding or withdrawing life-sustaining medical treatment, physician-assisted suicide, and euthanasia. Burt's first major writing on these subjects, Taking Care of Strangers: The Rule of Law in Doctor-Patient Relations, was published in 1979 when, after centuries of physician dominance, a series of judicial decisions began pushing the pendulum firmly in the direction of patients' nearly absolute control over medical decision making. Burt criticized this trend. Though he acknowledged the abuses that gravely ill patients often suffered under "the traditional physician's view that he alone should rule the patient" (vii),Burt warned that patients needed some protection against irrational, self-destructive impulses that may be unleashed by the encounter with pain and death. He argued that by ignoring those impulses and endorsing "the contemporary claim that the patient alone should rule his physician" (ibid.), courts were depriving patients of the protections of ongoing dialogue and negotiation within the doctor-patient relationship.

Burt concluded Taking Care of Strangers by asserting that in the face of inherently conflictual, ambivalent situations such as the encounter with death, courts should resist the temptation to impose a single rigid formula, no matter how appealing to judges' (and, in this case, patients') desire for control and rational order:

Achieving rational order is a profoundly important human ideal. But achieving order through imposed silence is the ultimate antithesis of this ideal. That is the leveled order of death itself, of the denial of individual integrity. Rational ordering can be approached only through engagement among strangers, through persistent attempts to share in the face of mystery, of alienation. An endless pursuit can be wearing. But the end is not necessarily preferable. (Burt 1979: 173)

Twenty-five years later Burt has taken up this argument again, but now the encounter with death has itself taken center stage. Death Is That Man Taking Names reprises Burt's skepticism toward judicial "solutions" to conflictual situations when these solutions fail to acknowledge ambivalence and destructive impulses. This time, however, his argument has a broader sweep, encompassing not only patients' medical decision making, but also public policy regarding abortion and the death penalty. And the argument rests on a more extended analysis of the "unruly psychological forces precipitated by death's imminence" (106)and how, in each of the three arenas, those forces frustrate and discombobulate human rationality.

Burt's skepticism toward our ability to fashion rational strategies for control in the face of death places him in a long tradition. Burt himself reaches back to La Rochefoucauld (1613-1680), repeating François La Rochefoucauld's warning that it is as difficult to stare at death as at the sun, but a more interesting progenitor of his analytic position is William James. In The Varieties of Religious Experience, James distinguished the optimistic worldview of the religion of "healthy mindedness" from that of "the sick soul" who sees that evil is so radically enmeshed in the universal fabric that an extraordinary supernatural remedy is humanity's only hope. While James granted that healthy mindedness seems to comport with much in human nature, he believed that it rests on willful self-deception. To remain metaphysically or theologically optimistic in the face of disease and death, James observed, actually requires that "we divert our attention from [them] as much as we can; and the slaughter-houses and indecencies without end on which our...