Moving to the other side of Luhmann's Binary Distinction: Perspectives for Legal Change over Assisted Dying

An intransigent problem for English law inheres in the desire of some to assist another who wishes to die as an act of benevolence. This is prohibited by law, so creating an impasse. Conceptual correspondence between this and the strictures of Luhmannian systems theory is apparent, making it possible to examine the stalemate by this means. The foundational paradox that mandates to law the unique prerogative of distinguishing lawfulness from unlawfulness is reproduced in the seeming immutability of present ruling on assisted dying.

Yet elements of society esteem altruistic assistance to voluntary dying and their objections to current legal prohibition often are based on extra-legal contemplations. The paradox, though, is posited here as essential and indissoluble. So the ways in which law functions in the presence of the paradox in relation to protagonism for assisted dying becomes a central
concern. However, attempts to unfold the paradox by understanding the relation of law to fact, the roles of law’s conditional programmes and structural coupling, while informative and bearing on decision-making, hardly change the status quo. Such examination proves mundane, merely schematic and already is familiar, although an empirical example of a change in the operation of the law raises questions of whether it was correctly legal and might not have unfolded the paradox too far. The study then looks for new dynamism within the systems-theoretical hypothesis and is reinvigorated by incorporating important precepts of modern, progressive societies—justice, liberty, democracy—and discovering how these can
be regarded in relation to legal paradox. Also, they are coincidental with some of society’s extra-legal bases of objection to the prevention of assisted dying. Importantly, these precepts do not constitute functional systems of their own but are transcendent, permeating as they do many aspects of the social world. Systems theory then can accommodate them
through the phenomenon of re-entry of the extra-legal from the environment of law into one side of the lawful/unlawful distinction. This expands the horizon of understanding of law while it keeps firm grip on its normativity and without hazarding the integrity of the paradox.

Teubner enthuses about the possibilities that re-entry can afford and his instruction is examined in relation to new substantive issues introduced by the present study. In turn and appositely, this approach amplifies the ‘political opportunity structures’ of Griffiths, et al, hitherto inadequately explained, but which are believed here to indicate the contemporary social tenets of autonomy, freedom and inclusion. Thus, a new theoretical coherence has been uncovered through which not only can law contextualize the protestations of society over assisted dying in relation to its own domain but also can contemplate the opportunities it creates for
considering the conditions of possibility of legal change.