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Is euthanasia justified and, if so, when? Answering this question is the main concern of this chapter. Euthanasia implies deliberately assisting someone to die in order to benefit that person. It has two forms: active and passive. The author enumerates and adopts four positions in examining how distinct passive and active euthanasia are and what implications follow. Consequently, euthanasia has three distinctions — voluntary, non-voluntary and involuntary euthanasia. The author discusses several debates on each distinction and if it can be justified. This chapter ends with the proposal that if prolonging life means prolonging suffering too, it may sometimes be more ethical to shorten both, even if this means killing rather than simply letting die.

The chapter shows that European countries developed highly different regulations of euthanasia ranging from its prohibition to the permission of passive euthanasia, assisted suicide, or even active euthanasia. While some countries have relied on strategies of absorption and maintained the status quo, others have moved towards a style of punitive permissiveness where laxer rules have been compensated by stricter sanctions. Finally, few countries combined more liberal rules with reduced sanctions, hence moving towards a purely permissive regulatory style. From a theoretical perspective, we should have expected compensatory moves—an approach that is indeed strongly pronounced in our sample. The only country that does not easily fit into these explanations is Germany, which moved towards permissiveness. The fact that we find transmission rather than compensation or absorption is basically an unintended consequence of legal and political complexities: the limited decision-making capacities and high legal complexity of the regulatory matter.

This chapter examines the present state of criminal law in the United Kingdom and other common law jurisdictions regarding the practice of active and passive euthanasia. Despite the similarities between active and passive euthanasia in terms of intention and outcome, there are significant legal differences between the two, which, it is argued, give rise to questionable distinctions. The distinction between passive and active euthanasia essentially rests upon the more general distinction between acts and omissions; active interventions as distinct from non-action or refraining from acting. The criminal law of the UK maintains a fairly rigid distinction between liability for acts which cause death on the one hand, and liability for omissions which cause death on the other. This has significant implications for the law regarding active and passive euthanasia. In analysing criminal law in relation to euthanasia, this chapter analyses criminal liability for both acts and omissions which cause death.

The ethical formalism at the core of criminal law concepts of responsibility plays an important role in permitting courts to make moral decisions without appearing to do so in cases of euthanasia. Judges are able to negotiate unresolved social and moral conflicts concerning the value of human life under cover of applying formal legal categories such as intention, act and omission, and defences. ‘Official morality’, as represented in the criminal law of homicide, proclaims the sanctity of life, but there is significant social and moral support for taking into account quality-of-life considerations. Criminal law finesses this tension through its categories of responsibility. Criminal law addresses four situations in which a person dies or is killed, or is helped to take their own life. In cases of active euthanasia, the law of intention is unusually narrowed, while in cases of passive euthanasia, the act/omission distinction is used to avoid responsibility. In the case of surgical intervention to kill one but save another, the distinction between offence and defence and the defences of necessity and duress are deployed. The law is used creatively to permit death to occur under the reassuring cover of applying established legal rules, but the rules and how they are applied are doctrinally problematic. Finally, a fourth case that does not allow for this legal finesse of moral issues is that of aiding and abetting suicide. Here, the moral does not permit flexible use of the law, with the result that a non-doctrinal solution, turning a discretionary blind eye in practice to ‘suicide tourism’, is deployed. The underlying thrust of modern criminal law is towards moral formalism in its concepts of responsibility, but this permits it, paradoxically, to intervene morally in favour of the quality-of-life position.