Does Philosophy Matter? (Part Two)

Fish.190 Stanley Fish in the NYT:

Some of the readers who were not persuaded by my argument that abstract moral propositions do not travel into practical contexts (see, “Does Philosophy Matter?”) offer what they take to be obvious counterexamples. Joe (187) cites “the ‘Philosophers’ Brief’ on assisted suicide that was submitted to the Supreme Court.” The example, however, counts for my side.

The brief was written by Ronald Dworkin, Thomas Nagel, Robert Nozick, John Rawls, Thomas Scanlon and Judith Jarvis Thomson (an all-star roster if there ever was one). It argues against a Washington state law prohibiting assisted suicide. The philosophers hope to persuade the Court to strike down the law by invoking a “liberty interest” all men and women have in making their own “personal decisions” about the “most intimate … choices a person may make in a lifetime” including the choice to die. “Death is, for each of us, among the most significant events of life.”

The Court alludes to this argument in passing when it acknowledges that the “decision to commit suicide with the assistance of another” may be “personal and profound.” The point, however, is summarily dismissed in the same sentence: “but it has never enjoyed … legal protection” (Washington v. Glucksberg, 1997). That is to say, while “abstract concepts of personal autonomy” (the Court’s phrase) may be interesting, they are not currency here in the world of legal deliberation. What is currency is the line of decisions preceding this one: “The history of the law’s treatment of assisted suicide in this country has been and continues to be the rejection of nearly all efforts to permit it.” Case closed. The editors of a leading jurisprudence casebook observe that “The Philosophers’ Brief arguments about autonomy seem not to have influenced the Supreme Court at all” (Jurisprudence Classic and Contemporary, 2002). Why should it have? The Court isn’t doing philosophy, it is doing law. Grand philosophical statements may turn up in a Supreme Court opinion, but they are not doing the real work.