“Legislate only with trembling », advised the jurist Jean Carbonnier, and « between two solutions, always prefer the one that requires the least rights and leaves the most to customs and morals ». Should a new law be made on end of life, when the implementing decrees of the previous law have not even been issued or applied? And what do we expect from the law? What do we do with our laws? Our society too often tends to ask the law to answer in advance the complex questions it asks. But isn’t it our conception of the law that we need to review? To consider that its mission is not only to give rules, supposed to silence concerns, but also and above all to hear and make heard complaints, and even to authorize the conflict of complaints?
The work of this convention must allow the expression of complaints – those of patients, their relatives, like those of doctors, and I would even say those of institutions. It is thus a great opportunity to rethink our expectation of law, and to break with the imaginary consisting in thinking that it would give a valid paradigm for all. That she would be there to close the tragic debate, in a way. And if its primary role was, conversely, to install it, this debate, but in a tenable way, by preventing unheard complaints from turning into irreconcilable dogmatic positions?
The virtue of exceptions
The danger of “great public debates” is to increase in generality, to claim to enact norms a priori valid for all, but in doing so to reduce the level of finesse of the debate, and to neglect the effective use of these standards. Their virtue, conversely, would be to organize the disagreement civic, to institute disharmony and conflict of complaints. Beyond this convention, this is what needs to be strengthened, these spaces for discussion or simply speaking, within families and care units, and right up to the court, in the event of a conflict – Antoine Garapon has accurately analyzed this theatrical dimension of justice, as a space for the recognition of complaints.
We need to rethink the relationship between the rule and the exceptions. Let’s go back to the Gospel and the parable of the lost sheep. Certainly an excessive parable, in the sense that in politics, there can be no question of abandoning the herd for a single individual who breaks the rule. But precious in that it reminds us that the exception always makes us think about what is good for everyone. In yourself as anotherPaul Ricœur draws this path: « Practical wisdom consists in inventing the behaviors that will best satisfy the exception required by solicitude while betraying the rule as little as possible. »
Suicide is not a fault
With regard to the end of life, this means defining, in the law, the place of exceptions and the conditions of access to these exceptional provisions. In the Protestant tradition which is mine, the question of suicide is neither taboo nor moral, it escapes all judgment. Besides, one would look in vain in the Bible for a condemnation of suicide. Suicide is told there as a misfortune and not described as a fault: no law can prevent suicide, because life cannot be ordered.
It can happen that a person has no other way out than to want to leave this life, and that the accompaniment does not change anything. Trapped in the hopeless situation of a life that is nothing more than irremediable suffering, and beyond a certain threshold of dignity, we would like to get out of an impossible game: it is the last sovereignty, like a last possible where all possibilities have been extinguished.
You can’t control death
And yet, as Emmanuel Levinas pointed out, death is not possible for me, it is not a heroic act of life. It’s just something that happens to us, and where we are passive. What is terrible and unfortunate in the request for euthanasia, as in suicide, is this way of killing the other in oneself, of killing time, of killing who I will become: a way of not loving oneself like another, like any of my “neighbours”.
There is no control possible over death, neither in therapeutic relentlessness, nor in palliative and sedation, nor in euthanasia, as if we were capable of comparing all the options and opting for the one of them. Admittedly, the increase in our technical capacities has continued to broaden the sphere of what we can choose: death no longer happens, more and more often it is we who decide when we stop treatment. But there, precisely, is the tragedy: the dying person is in our hands and depends on what we will do with him. And this tragedy, no law will silence it. She can simply soothe him by setting him up in the disagreement ordinary of our always singular lives.