The Liverpool Law Review Vol. XVI(2) [1994]

How We Die, by Sherwin B. Nuland, Chatto and Windus, 1993 (Hardback), 1994 (Paperback), Pp. 278, £8.99. Life's Dominion, by Ronald Dworkin, HarperCollins, 1993 (Hardback), Pp. 272, £17.50.

Rarely is one able to apply the dustcover hyperbole of "must read" to a text that is both an accessible and enjoyable read, of general interest, and which also makes a significant contribution to the body of academic literature within its purview. To encounter two such texts simultaneously is to be convinced of the sentiments of Francis Bacon that "Fortunes... come tumbling into some men' s laps".

How We Die is a dramatic and headstrong expose of the actual physical processes by which the human body through wear and tear, insult and injury, disorder and disease, "by fair means and foul", fal- ters, and fails. It is also significantly more than that. Over the course of its 12 chapters, which luridly detail the physiological processes by which heart disease, old age, strokes, Dementia of an Alzheimer's type, accident, suicide, murder, AIDS, and Cancer account for human life, Nuland gives the reader a vivid insight, into the essential human- ity of the dying process and death. This vision, born of a distin- guished career at the literal and metaphorical "sharp end" of clinical medicine, is not necessarily a comfortable one. The reader's sensitivi- ties are not spared when the author notes that "Unlike any other pestilence previously known to humankind, H W does not limit its ar- ray of deadly options" (at p.192) nor when he describes the ravages of cancer as "a disease berserk with the malicious exuberance of killing" (at p. 207). Neither, however, does he employ effect for effect's sake. Throughout the process, he is concerned to portray the courage and concerns of the patient, the conviction and confusion of the medical staff, and the strength and resourcefulness of the family within the complex culture that is the dying process in a contemporary clinical environment.

If this was as far as his analysis progressed, I could certainly com- mend this non-jargonistic and humane account of the processes of death and dying. However, what recommends this book to a range of students and practitioners of medicine, philosophy, medical law and allied disciplines is the astute manner in which this "objective" account operates as a stalking horse for a number of well made corn-

216 The Liverpool Law Review Vol. XVI(2) [1994]

ments on the realities of healthcare delivery at the end of life. Throughout the text, the author has taken an occasional side-swipe, at the efforts for example of Derek Humphry, Hemlock Society co- founder and author of Final Exit, that "ill-advised cookbook of death" (at p.156), and, at a society which ignores "the caregiving surround" that is provided by friends and lovers of AIDS patients, those "doubly dead in that they died so young"(at p.201). However, it is not until the final chapter that he declares the extent to which the book is in- tended as an "unspoken plea for the resurrection of the family doc- tor'" particularly in the context of treatment at the end of life. In Nuland's vision of contemporary clinical reality, "the anguished pa- tient ...has begun to wonder if enough can be done for him to justify what is being done to him" (at p.148), "the family cherish expectations that cannot be met", while the increasingly specialist and emotionally detached clinician is the "riddle solver", longing to conquer each puzzle presented. Combining, at times, harshly self-critical reflection and a knowledge of that which he has seen go on around him, Nuland has come to the uncomfortable conclusion that doctors, in- creasingly removed from the experience of their patients, fearing death on a personal and professional basis m that ultimate loss of control m substitute false hopes and unwarranted invasive therapies in the context of tragedy. In a memorable couplet he expresses dis- may at the extent to which "The Riddle" has become "the doctor's lodestone as an applied scientist.., his albatross as a humane care- giver."

In contrast to the manner in which Nuland refuses explicitly to reveal the motivations for his endeavour. Ronald Dworkin 's new book, Life's Dominion significantly wears its purpose on its sleeve from the outset. In this stimulating and engaging piece, Dworkin ad- dresses two of the major bioethical concerns of contemporary society, the debates upon abortion and euthanasia. He characterises his method as extended moral argument, seeking to "reason from the in- side out'; developing theories which are "bespoke...Saville Row not Seventh Avenue", to provide resource which may "be more likely to succeed in the political forum". This is undoubtedly a tall order. While he certainly manages, by a combination of astute argument and the sheer bravado of his literary style to steer the writer through this unfolding rationale with considerable aplomb, he does not, I believe, wholly succeed in his task.

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At the heart of Dworkin's quest is a stated commitment to bridg- ing the chasm between the apparent intractable stances of those who adopt a particular perspective in the abortion debate, rooted in their support for or denial of the personhood of the foetus. His innovative riposte~ is to insist that a collective misconception of the issues has beguiled the parties to such a degree that, in a sense, everyone has been arguing about the wrong question. Dworkin 's asserts that, whatever their stated perspectives neither camp actually believes that the foetus is an unimportant bundle of differentiating cells nor indeed a fully fledged moral subject, but rather that everyone believes that the human foetus has some exceptional value~ an intrinsic value, over and above its stake for the unique individual or its usefulness for so- ciety. He supports this belief with a combination of empirical re- search, and a whistle-stop tour of feminisms the major religions, and the personal convictions of the previous Republican administration. He insists that "if they knew what they truly believed" or "if they would only recognise the inconsistency and implausibility at the heart of their own arguments", each party would be able to identify his or her own personal conviction within the common fold.

In Dworkin's vision all of us believe that it is a '~cosmic shame 's that the life of a foetus is lost, b u t - and this is a crucial prepo- s i t i o n - we adopt different positions on the same scale relative to whether we value the human or natural investment in "life's sacred value '' more highly. The benefit of this insight is that, rather than a ~sullen and fragile standoff, defined by brute political power~ which remains intractable because "there is no biological fact waiting to be discovered or crushing moral analogy waiting to be invented that can dispose of the matter", the parties in fact enjoy a common and basic set of values, differing only to the extent that they weigh the natu- ra l /human scales differently.

The next task that Dworkin undertakes is to ask whether the law has the right to adjudicate and to enforce a particular perspective upon people with regard to the innate sacredness of human life. By appeals to the fundamentals of his vision of democratic society and the natural limits of legal authority, he insists that these matters should be left to the individual to resolve, with the responsibility of the law simply to encourage individuals to give the matter considered attention. At this stage, I was left with the impression that the central analysis of the text, which explores the reality of the abortion debate

218 The Liverpool Law Review Vol. XVI(2) [1994]

in the courts, was a retread, which, though of obvious merit, was dis- tinct and simply did not belong in this argument. More crucially, however, with respect to his stated aim of exploring an internally generated rather than imposed model, this was the first of a number of occasions I felt that I had been marched up to the top of the hill and summarily marched back down again absolutely unrequited. While it would certainly be naive to expect a single text by a sole author definitively to clear up the abortion and euthanasia debate in one breath, if Dworkin insists on playing the Pied Piper, such thoughtful and provocative questions demand committed answers, albeit imper- fect ones. Given the complexion of the abortion debate in the United States, and the role of fundamentalist theologies, I simply could not concur with his soft-centred logical resolution of the debate, To champion the liberal tradition, by insisting that (1) abortion is an issue of private decisionmaking, which (2) we would not want the law to become embroiled, is his prerogative. However to attempt to win over the opposition by recourse to an analysis of their imperfect logic, while offering a face saving alternative which enables the conserva- tive faction to emerge with full (liberal) self respect is positively naive. In his own introduction, he notes the volatile political climate in the United States which has significantly backtracked from the landmark decision in Roe v. Wade, and how the mechanisms of political patron- age enabled the last Republican administration to appoint to the Supreme Court personalities avowedly opposed to extensive abortion rights. Somehow within this climate of self interest and oppression he expects his brand of logic to win out. As a "pro-choice" supporter, I wish I had his faith.

The second major responsibility which I feel that Dworkin shirked is with respect to his development of the idea of a secular tradition which upholds human life as sacred. The theist roots of such a doc- trine are universally acknowledged. However, the issue of how hu- man beings who do not ascribe their and other's worth to an omnipo- tent creator sustain a belief in their absolute value is a thorny one. Dworkin's response is innovative, but certainly one which would promote in someone such a Richard Dawkins, the eminent zoologist, a fit of apoplexy. By Dworkin's reckoning, we believe ourselves to be of unique intrinsic value because we are the perfection of the process of evolution, and, of collective worth because we are the product of "human investment in life." A whole range of questions, and in this

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sense a whole aspect of his critical integrity, is compromised by the fact that he does not pause to ask whether we have any right to view ourselves with such unashamed arrogance but rather employs the same "what we say and therefore what we must assume that we be- lieve in if we are to speak with any internal logic" justification for his convictions. Consistently, he manages this exercise with great skill, and there is certainly an impressionistic "ring of truth" to his asser- tions; however, the lack of a critical judgement once again confirms in the reader the experience of one of the Grand Old Duke of York's soldiers, frustrated and footsore.

The last two chapters of the analysis attempt to transfer the same intrinsic value model on to the experience at life's end, questioning our convictions in the context of euthanasia. Once again, it is almost the incidentals that provide the reader with novel insight. The man- ner in which he distinguishes between those people who want to re- main alive so long as biologically possible, even in appalling circum- stances, from the others in such dire straits who want to die as soon as possible; is once again insightful and intuitively appealing. The no- tion that the last stage of life affects its overall character, in the same manner that we judge a literary work whose bad ending mars what went before, is certainly an astute one. The body of the work, in con- trast, merely reinforces his liberal tradition with recourse to such con- cepts as autonomy and beneficence, and in this sense is much less convincing.

Paul Rice"

* Part-time Lecturer in Law, University of Manchester.