March 14, 2003
Prof. Robert Burt Writes about Responses to Death in Death Is That Man Taking Names
Robert Burt's most recent book, Death Is That Man Taking Names (University of California Press, 2002), takes up a series of issues at the intersection of law and medicine that he has been studying for his entire career.
Burt, the Alexander M. Bickel Professor of Law, says that his interest in law and medicine began in a seminar he took while a student at Yale Law School in the early 1960s. It was taught by Joseph Goldstein, the late Sterling Professor Emeritus of Law, Jay Katz, the Elizabeth K. Dollard Professor Emeritus of Law, Medicine, and Psychiatry, and Anna Freud, a psychiatrist and daughter of Sigmund Freud, and explored the role of psychiatry in social regulation. Burt went on and began his own teaching career, continuing to research issues in law and psychiatry.
In the late 1960s and early 1970s, Burt explains, "relations betweens doctors and patients generally--and not just psychiatry and the law--exploded as a subject matter for the law." Cases of medical professionals doing harm to their patients--as in the Tuskegee experiments and the Willow Brook experiments--became public. "The big problem here is that the people who were doing bad things didn't think they were doing bad things, they felt that they were helping, that their motives were pure. How do you figure out a regulatory response?"
Burt's joint appointments at the medical school and the law school at the University of Michigan, in the 1970s, put him at the center of this confluence. He began thinking about "how much death is at the center of what medicine does. . . . I became convinced that the issue of death held a key, maybe, to this puzzle about why good motives went bad."
He describes one outlook on how the medical profession should handle death that has flourished in the last thirty years. "The answer should be, lots of people said, to acknowledge death as just a part of life and . . . to see it as just a place in nature and as something to be welcomed--so death with dignity." In addition, Burt saw various attempts to establish rational control over the dying process, such as the use of advance directives and other sorts of planning and the movement to legalize physician-assisted suicide.
"But I have come to the conclusion that this is only half the story," says Burt. "There is a persistent other side. Much as we might wish to see death as a natural part of life and accept it when it comes and approach it without fear, I think that that is not possible in an unambivalent way."
Death Is That Man Taking Names explores how this ambivalence affects activities around death and dying. Burt summarizes his thesis: "The competing thought is that death is an evil. And it's not just that it's something that you don't want to have happen to you, but that it actually is a moral wrong. . . . If you look to the Western cultural tradition, well, what's our myth about how death entered into human life? And the myth is very clear, it's because we did bad things." In addition, death is illogical. "It is the very antithesis of all our sense of order. Our thinking is premised on our continuing existence."
"So anybody who dies has done something wrong," says Burt. "And anybody who is involved in the death process, also feels there's something bad here. . . . My basic view is that this underlying belief in the wrongfulness of death will find expression somehow."
In Death Is That Man Taking Names, Burt focuses particularly on three social movements, all of which have roots in court decisions in the early 1970s. They are physician-assisted suicide, abortion, and the death penalty.
Burt's overall perspective on death and dying leads him to be skeptical of physician-assisted suicide. Where others see a rational process, with safeguards and reasonable procedures, he sees a process that suppresses ambivalence and thus is prone to abuse. "On the other hand," says Burt, "I look at another practice, like doctors withholding life-prolonging treatment, based on a patient's saying I don't want it. That also brings on death. . . . But there are differences. You can say to yourself, 'I'm not doing the killing; the disease is doing the killing.' . . . It is a mental trick, but it's a mental trick that speaks to ambivalence. And it kind of says, you can go this far, but not further. It's a way of bringing into semi-awareness that there's something a little funny here, so I'd better be careful. . . . It is illogical and it's the illogic that expresses the ambivalence that is my view of how to respond to these things."
He applies similar analysis to abortion and the death penalty. Burt rejects the logic that attempts to determine when a fetus is viable and thus a person, so that abortion is morally pure for the fetus and impure for the person. "I think this effort at clear-cut line-drawing is itself an illusory effort to deny ambivalence, that abortion at any point is almost inevitably understood as the infliction of death. . . . But I believe that an apparently illogical line-drawing some time during pregnancy (distinguishing between 'early' and 'late' abortion, without pretending that the difference is between non-person and personhood) reflects and expresses ambivalence." And he argues that the death penalty can not be administered in a fair way, because the mere presence of death in the process will bring out guilt and recrimination.
Burt notes that these three issues were linked in their historical development. "All this attention to death and the court's role and rational control emerged at the same time in this culture, which is between 1970 and 75: the Karen Quinlan case, the courts take rational control of death; Roe v. Wade, the courts take control of abortion; . . .Furman v. Georgia, where the Supreme Court said we have to bring the death penalty into the light of day."
Burt's approach to policy doesn't produce simple rules or easy solutions to issues around death and dying. "I look for opportunities to amplify ambivalence, that's always my goal," he says. He advocates for shared decision making and consensus. "I look for ways to confuse people around death and dying when they think that they're clear and pure. Because I really do believe that if you can look death in the face and feel in command and clear headed and pure in your motives, you're fooling yourself."
Burt's work on death and dying is part of a broader perspective in which he is skeptical of the power of rational understanding and simple resolutions. His 1992 book The Constitution in Conflict argued that the Constitution should be viewed as setting up conflicts rather than resolving them. "It leads me in my constitutional law to do things that a lot of people think are crazy. It leads me to say that what the court should always be looking for is not a definitive ending to a dispute, but to see itself as a participant in the dispute, to highlight values that are not being adequately tended to as the judges understand it, to protect people who are not being adequately listened to."
Death Is That Man Taking Names not only has "death" in the title but the word also appears on nearly every page, and Burt admits that some of his personal ambivalence about the subject must have influenced his thinking. "My argument throughout the book has been that we can't be fully rational about death. But when you then set out to figure out how to avoid all these traps, all we have is our rational capacity. So there's a paradox here, and I can't solve the paradox."