Euthanasia and the Changing Ethics of the Deathbed: A Study in Historical Jurisprudence

Abstract

During the course of the nineteenth century, a dramatic change took place in the way Americans die. The deathbed, formerly governed predominantly by religious tradition, gradually was being shaped by medical ethics and state law. By the end of the nineteenth century, not only had the physician replaced the priest as master of ceremonies at the deathbed, but the state, in the form of positive law, had begun to express an interest in regulating the treatment of the dying patient. This interest first emerged in the context of the late nineteenth-century public debate over the legitimacy of medical euthanasia, an issue passionately disputed to this day in America and other Western societies. The history of the deathbed in nineteenth-century America suggests that the intervention of the state in the regulation of dying is a relatively new phenomenon. This paper examines this history, thereby enabling us to explore a world in which the legal regulation of dying was still unthinkable and inviting us to contemplate the historical significance of this development. The paper traces the changes that occurred during the nineteenth century in deathbed ethics, concluding with proposals for regulating dying legally through euthanasia. It focuses on the most significant moments in the history of the nineteenth-century deathbed, outlining a three-stage transformation in deathbed ethics — from the realm of religion, to the jurisdiction of medical ethics, to positive law regulation — a movement that reflects a change not only in specific rules of deathbed conduct, but also a more decisive alteration of the entire normative system governing the deathbed and the entire experience of dying. The insight to the modus operandi of regulatory law that emerges in the paper can lead to a deeper understanding of the conditions of its possibility. Regulation is only possible if the phenomenon to be regulated undergoes a transformation through which it severs its connections with anything that cannot be regulated. Thus, the paper shows how a radical transformation in the way people die was necessary for regulation by state law to emerge.