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

Yale law professor Robert Burt's richly textured reflections on death and our intractable ambivalence toward it are at once intriguing, profound, and perplexing. Drawing from many sources—history, law, medicine, philosophy, psychoanalysis, religion, anthropology, and cultural criticism—he invites the reader to traverse a labyrinthian path toward a deeper understanding of the meaning of human death and our responses to it. He believes that one human tendency is to turn away from facing the fact and our fear of death by hiding it from public view, because death is irrational, evil, and totally out of our control. Another, more recent, trend is to try to rationally master death by subjecting it to our control. Burt argues that death evokes in us all a deep and inescapable ambivalence that arises because a solution to the mystery of death eludes us while we seek in vain to conquer death by rational mastery.

Judges ponder whether the mercy killing of the severely handicapped, abortion, physician-assisted suicide, or the death penalty can be rationally justified and subjected to social control, or whether any and all intentional killing by individuals, doctors, or the state should be prohibited. Doctors struggle with their role as professionals whose aim is to prevent the death of their patients while they know that their patients, like all of us, will eventually die. If, as Burt argues, death is irrational and evil as well as inevitable, professionals like judges and physicians who open and close death's doors sometimes do and always should become aware of how our acknowledged ambivalence about death can distort social policies and lead us into the temptation and delusion that reason can control its irrationality.

Burt proposes that our individual and social response to ambivalence should be made publicly visible. In his view the purposeful infliction of death on another human being, however, is never permissible, because it will inevitably lead to the suppression of ambivalence in favor of a vain effort to achieve moral justification. In contrast to Burt, I believe that social practices that permit the intentional infliction of death on another—such as the termination of treatment, abortion, physician-assisted suicide, and the death penalty—should be permitted only if our ambivalence can be publicly scrutinized and found to be at least morally permissible, even if not unambiguously justified. In addition, the decision procedures we use to bring about death intentionally should preclude unilateral, dogmatic, or unfair outcomes. For example, if treatment for severely disabled or extremely premature infants is terminated, physicians, parents, and the state should be required to confront and struggle openly with our ambivalence rather than deny it and hide it, as well as offer sound moral reasons for their decisions.

Professor Burt seems pulled strongly toward the irrationality and wrongness of death that provokes our desire to deny, or at least turn away from, its ubiquitous presence in the human world. But Burt himself at times seems unwilling to face the inevitable finality of death for each of us. His rejection of physician-assisted suicide in favor of a curious ritual of terminal sedation is puzzling. If we can face and manage our ambivalence toward abortion or the termination of treatment for severely damaged newborns, we can also publicly acknowledge ambivalence about physician-assisted suicide, or even the death penalty, by creating a framework of restrictions and safeguards to prevent arbitrary, precipitous, or unfair decisions. Why can we not permit personal autonomy near the end of life for dying patients, or inflict capital punishment on especially violent offenders whose crimes cry out for retribution? In the context of medical care, it seems to me that many persons fear painful or undignified dying more than death itself. The urge to seek rational, or at least some...