via fuZZyface (Linda Stewart)
I shall look into faces, and I shall see them seek some other face (Virginia Woolf, The Waves).
Judicial adjudication affords the individual and collective bodies an alternative / additional space in the event of a possible rights infringement, to challenge enacted laws, policy and the action of the sovereign. Although constitutionalism in modern liberal democracies has opened up a previous enclosed space for courts in the form of judicial adjudication to possibly creatively deal with rights alongside traditional forms of democratic participation, courts remain trapped within institutional boundaries when they rely on interpretative approaches, legal convention, legal culture, and legal history. Courts often defer a situation of rights-infringement to the legislature or executive branches of government as a macro-political matter. As such the concept of human rights grounded in the notion of a supposed fixed identity and judicial interpretation grounded in presupposed values confines movement or change. An underlying reason for this confinement is the artificial blockages created by our current knowledge apparatus and the overemphasis on medico-legal considerations on the issue of the right to passage.
In this post, I focus on two recent cases in two different domestic jurisdictions, Canada and South Africa that concerned the sensitive and controversial issue of the right to passage (euthanasia, assisted dying or assisted suicide). I argue that courts functions as a faciality machine producing both the concrete face and the landscape insofar the judge as faciality machines, manages decisions about health including decision-making between the messy borders of life and death on behalf of micro-political arrangements. I focus on the most general function of facialisation that of biunivocalization function arguing that courts functions as normality computers and deviance detectors.Relating a South African case with a Canadian case
In what follows, I analyse two cases, the South African case, Stransham-Ford v Minister of Justice and Correctional Services and the Canadian case, Carter v Canada. The South African case relied heavily on the Canadian Supreme Court case by drawing analogies from the former. The judge reasoned that is important to refer to the Canadian case, because the case concerned balancing competing values; because of the similarities between the Canadian Charter of Rights and the South African Bill of Rights; and the dictum in the Canadian case that concluded that a total prohibition on assisted dying is overbroad. The South African judge was of the opinion that the dictum in the Carter case is applicable to the South African case (para 18). For purposes of this discussion it is therefore necessary to read these cases in combination with each other. It is important to also to distinguish between the two cases, the Stransham-Ford case only focussed on a specific individual’s relation to the law (or in other words the court approached it on micro-political level) while the Carter case declared specific provisions in the Canadian law unconstitutional which was applicable to all Canadian citizen’s, resulting thus in a change of law on a macro-politically level. The Stransham-Ford case was heard as an urgent matter by the High Court, from the time when the decision was made, the High Court agreed that the case may be appealed to the Supreme Court and there is a possibility for an further appeal to the Constitutional Court. In the Carter case the Supreme Court made their decision as the final court of appeal and the judgment incorporate the decisions by two lower courts that addressed the matter before. Both cases stressed the need to safeguard vulnerable individuals from exercising the choice to end their lives with the assistance of a medical practitioner. In both cases we witness what Deleuze refers to as a treat ‘to bring what’s been established back into question (Deleuze 1995: 153). The two cases will be discussed together under themes that may be considered as artificial blockages created by our current knowledge apparatus when thinking law.
When individuals face a decision to end their life in their own way an in their own time, they attempt to overcome established ways of acting and being acted upon by forming micro-political arrangements or becomings challenging the prohibition to end their life. This micro-political movement however, encounters the macro-political when they approach a court and question the established order. The Stransham-Ford case was mobilised by a civil society group called Dignity South Africa and was heard by the North Gauteng High Court (Pretoria) South Africa on 29 April 2015. The high court treated the case as urgent and made a decision related to the specific situation of applicant. It addressed the question whether the applicant was entitled to end his life with the assistance of a medical practitioner. The court made a declaratory order on 30 April 2015 and gave reasons for its decision on 4 May 2015 allowing the applicant to end his life with the assistance of a medical practitioner. The court declared that in this specific situation, an absolute prohibition in terms of the common law crimes of murder or culpable homicide infringed upon the constitutional rights of dignity; freedom to bodily and psychological integrity read with sections 1 and 7 of the South African Constitution. It declared that an absolute prohibition is an unjustifiable limitation of the said provisions of the Bill of Rights to the extent that it is overbroad and in conflict with these rights.
Although only focussing on the micro-political issue the judgment also took on a macro-political dimension. Despite the applicant dying two hours before the order was made the judge decided that the court order would remain in force. The judge argued that the case has not become mood because it raised a constitutional issue; in other words, the law perceived this to be a treat to the established position and by doing so turned it into a macro-political issue. The State and the Health Professions Council of SA appealed the case and the high court granted the parties leave to appeal the matter before the Supreme Court.The State and the Health Professions Council of SA argue that the case set a legal president allowing similarly situated individuals to pursue the issue of assisted dying in a similar way. They further assert that there was no infringement to the right to dignity and that the judge broke the institutional boundaries in terms of the doctrine of the separation of powers.
In Stransham-Ford the court focussed only on the application of the specific applicant. The court declared that 1) the applicant was a mentally competent adult, 2) who without undue influence, freely and voluntary requested suicide; 3) that the applicant is ‘terminally ill and suffering intractably and has a severely curtailed life expectancy of some weeks only’, 4) that the applicant ‘is entitled to be assisted by a qualified medical doctor, who is willing to do so, to end his life, either by administration of a lethal agent or by providing the Applicant with the necessary lethal agent to administer himself’; 5) that ‘no medical doctor is obliged to accede to the request of the applicant’ and that 6) ‘the medical doctor who accedes to the request of the applicant shall not be acting unlawfully, and hence, shall not be subject to prosecution by the state or be subject to disciplinary proceedings by The Health Professional Council of South Africa for assisting the applicant (para 26). The order was not suspended on the possibilities of an appeal and came into effect immediately.
Unlike the South African case, trail court in Canada who was the first court to address the constitutionality of assisted suicide, immediately focussed on the broader societal issue of assisted suicide. In other words, the case took a macro-political stance from the start. The trail court considered not only the affidavit presented by the already deceased applicant but also allowed and considered the affidavits of other witnesses who explained similar situations. The court reasoned that all these cases entail the issue where an individual are forced with the difficult choices of ending their life immaturely. The court acknowledged that although the details of these affidavits differed, the constant theme in the evidence was that the terminally ill patient who lacked the knowledge as to when and how to bring their life to an end. On 6 February 2015 the Canadian Supreme Court in a unanimous judgment ruled on the prohibition against physician-assisted dying. The Carter v Canada Supreme Court judgment covers both the decisions of the Trail Court and the Court of Appeal. Considering the trail court evidence, the Supreme Court in Canada declared the prohibition on physician-assisted suicide invalid for a period of a year. In other words, the judgment discursively changed the established order on macro-political level.
Faciality – setting parameters on constitutional interpretation
Interpretative approaches informed by presupposed values are known as the purposive or teleological approach to constitutional interpretation. Both cases relied on this approach in their analysis of a possible rights infringement. Nietzsche in his book On the Genealogy of Morals warns against interpretation based on a-priori values (or so-called moral values) alone and urges his readers to evaluate the origin from which values are deprived. As such, Nietzsche (2007: Essay I sec 126) rejects the Kantian tribunal judge calling for universal values because as Deleuze (Deleuze 2006: 2) explains the latter ignores the differential element. Nietzsche urges his readers to evaluate the origin or genealogy from which values are deprived (Nietzsche 2007: Preface sec 8). ‘Genealogy means both the value of origin and the origin of values’: it includes the origin but also the distance of the origin, namely the differential. It is quantitative in the respect that the distance/differential include nobility and baseness, nobility and vulgarity, nobility and decadence in its origin. Nietzsche therefore emphasises that interpretation is insufficient and evaluation is needed to grasp the differential element in values.
Haffin (2009: 47) warns that courts often appeal to the abstract notion of the right to life in situations where the body subjects itself before the institutionalised form of law to request the ending of their own life (or the right to live) and together with Colebrook and Braidotti, he (2009:5) warns that when courts rely on the right to life (pro life politics) to justify assisted suicide it implies the revival of an extremely regressive form of vitalism that silences the political debate thereof. In other words, the court as a faciality machine attempts ‘to integrate nonconforming traits into increasingly eccentric and backward waves’ (Deleuze and Guattari 2005: 178).
In the Carter case the trail court engaged in a constitutional analysis enquiring whether the prohibition against physician-assisted suicide in terms of sections 14 and 241(b) of the Criminal Code infringes on section 7 of the Canadian Charter of Rights (hereafter Charter). Section 7 of the Charter provides that ‘[e]veryone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice’. To determine a possible infringement the court in terms of section 1 of the Charter had to do a value judgment weighing the values of autonomy and dignity against the values of the sanctity of life and the duty placed on the sovereign to protect vulnerable individuals. The trail judge held that the provision was void insofar a person who request assisted suicide can proof that she gave clear consent and that she ‘has a grievous and irremediable medical condition (including an illness, disease or disability) that causes enduring suffering that is intolerable to the individual in the circumstances of his or her condition’ (para 4). The court remedied the prohibition by an invalidation of the provision for a period of one year.
The Supreme Court addressing the case on appeal precedes its judgment by identifying the main issue before the court as a question into the constitutionality of the prohibition of physician-assisted dying/suicide. A constitutional analysis of the section 7 rights required firstly, that the applicants must proof that the law in question namely the prohibition on assisted suicide interfered or deprived them of their section 7 (human) rights. (The first part of a reading of section 7.)
If the provision interfered with the section 7 rights, the second question was whether the applicant had proven that the deprivation in question is not in accordance with the principles of fundamental justice (The second part of a reading of section 7.) The Supreme Court concluded that the prohibition on physician-assisted dying infringes the right to life, liberty and security of the applicant and of persons in her position, and that it does so in a manner that is overbroad and thus is not in accordance with the principles of fundamental justice (para 56).
In the context of the Carter case the first question before the supreme court was whether the established order interferes with the subject’s right as contained in an eminent document such as the Constitution. To answer this question the court enquired whether the established order infringed on the right to life, liberty and security of a person. The court reasoned that the established order (the prohibition) has the effect that some people may take their own lives prematurely because ‘they fear that they would be incapable of doing so when they reached the point where suffering was intolerable’ and this presents the danger some individual may be deprived of life (para 57-58).
It is important to note that the court makes no qualitative judgment regarding the content of the value and right to life of an individual, the court does not enquire what life may possible be. It restricts itself to previous case law ‘that suggests that the right to life is engaged where the law or state action imposes death or an increased risk of death on a person, either directly or indirectly’ (para 62). With respect to the right to liberty and security, the court reasoned that by refusing ‘competent adults who seek such assistance as a result of a grievous and irremediable medical condition that causes enduring and intolerable suffering, infringe the rights to liberty and security of the person’ (para 68).
While the constitutional question in the Carter case addressed in terms of the right to life, liberty and security, the Stransham-Ford case approached the question as a possible infringement of the right to dignity. Textually, unlike the South African Bill of Rights the right to life is not contained in a separate clause in the Canadian Charter. The court in Stransham-Ford, in other words, did not base the unconstitutionality of the common law prohibition (established order) as an infringement of the right to life but declared it to be overbroad and in conflict with the rights to human dignity, and freedom to bodily and psychological integrity (para 26).
The court in Stransham-Ford did however, elaborated on the right to life with reference to the remarks made by O’Regan J in the 1995, case of S v Makwanyane which declared the death penalty in South Africa to be unconstitutional. O’Regan J argued that human life is at the centre of constitutional values and means more than existing as mere organic matter. She contends that the right to life cannot be understood without the right to dignity. While referring to the right to dignity, she stresses the importance of human dignity as a value (para 328). Although lacking to make a clear distinction between rights and values she apparently suggests that the values of life and dignity should inform the court in their interpretation of other rights in the Bill of Rights. The court in Stransham-Ford agreed with O’Regan and adds a warning that the disjunction between morality and reality also extends to animals (para 26). Although the court refers to the ‘moral’ issue, the court stated earlier in the judgment, that it would confine itself to the constitutional debate and leave philosophical questions to the philosophers (para 12). This illustrates how with legal interpretation judges are mostly not consciously aware of their own presupposed values and prejudices.
The court, in other words, premises its judgment on previous observations by the Constitutional Court by only focussing on interpretation without evaluating the origin from which values are deprived. The court therefore bound itself to presupposed values (see my previous post here). The manner in which courts confines themselves on reflecting on the past also calls into question the stare decisis rule. The rule prevents courts to change the established order because they are bounded by previous case law. The underlying issue is to what extent the courts confines themselves on reflecting on the past and possibly projecting past judgments into the future where they lack tools to allow them to evaluate the situation in pure or empty time.
The stare decisis rule was addressed in the Carter case and is therefore relevant to determine the confined spaces in which the court operates and to identify how these spaces may leak or take lines of flight out of the established order. Aside from the constitutionality question the Court of Appeal and the Supreme Court in Carter had to address the question whether the trail court was bounded by previous case law that previously ruled on the issue of assisted suicide. While the trail court opened possibilities to address the issue of assisted suicide differently and change the prevailing situation, the Court of Appeal remain stagnant and fixed on previous case law. Without going into the legalities of the arguments, the trail court and the supreme court found that previous case law, Rodriguez case (going so far back as 21 years) did not prevent the court to review the constitutionality of the prohibition against assisted suicide. The majority of the Court of Appeal however reasoned that the trail court was bounded by the Rodriguez case. The majority in the Court of Appeal rejected the arguments by the trail court that the legal, social and factual landscapes differed between the two cases. The Court of Appeal further reasoned that the order of a suspension of invalidity created a legal vacuum and recommended ‘the reinstatement of the free-standing constitutional exemption’. The Supreme Court ruled that the trail court did not breach the stare decisis rule because a new legal issue was raised and there was ‘a change in the circumstances or evidence that ‘fundamentally shifts the parameters of the debate’ (para 44). The court explicitly remarks that ‘stare decisis is not a straitjacket that condemns the law to stasi’. Put differently, the court thus recognises that the present may be different from the past and as such the court recognised that the legal, societal and factual landscapes differed and the issue had to be readdressed.
This constitutional question or the method applied by the courts in both Carter and Stransham-Ford case leads itself to describe the process in term of the abstract faciality machine where both courts not only operates to normalise but also functions to detect deviances.
As faciality machines the courts produces not only concrete individualized faces (the State and the sovereign subject of human rights) but it also it also sketches the landscape of in which these concrete faces are allowed to move. The face appeared when the court recognised and identify the applicant in the Stransham-Ford case and the applicant ‘and of persons in her position’ in the Carter case as entitled to constitutional protection. In other words, the court identified the applicant(s) as either ‘x or y’. The court thus assigned a molar identity to the applicant/s requiring that the ‘rights-bearer(s)’ affected by the established position had to satisfy certain requirements attributed to this molar identity.
For example in both Stransham-Ford and Carter the subject had to be an adult, ‘mentally’ competent to make the decision and the subject is called on to proof they suffer from a grievous and irremediable medical condition (para 26). Thus the molar identity assigned to the subject had to be ‘x and not y’. While ‘x’ is a competed adult suffering from a certain medical irreversible condition, ‘y’ is a child or a person who are incompetent to make an assisted suicide decision or a person who suffers from something other than an irreversible medical condition. Furthermore the landscape produced are limited to in Stransham-Ford to a specific situation relating to a specific individual while in Carter the landscape confines the face or subject to those situations where the law or state action, the established order, imposes death or an increased risk of death on a person, either directly or indirectly. This implies that there is no positive obligation on the sovereign to assist the face produced (the subject), in their decision and consequent action to end their life. The court only changes the established order by overcoding the concrete face as part of the majority standard by reasoning that in some situations individuals may be assisted by a medical doctor to end their life.
In it’s normality function both court faciality machines also acts as a deviance detectors or ordering machines by producing the face of a competent adult suffering from an irreversible medical condition whose prohibited by the established position to take their own life when suffering becomes intolerable. However, the court as deviance detector does not stop while producing the face. Both courts further enquire in terms of the constitutionality determination, whether the infringement are justifiable in an open democratic society sketching also the landscape in which the subject moves. In Stransham-Ford the court reasoned that an absolute prohibition in terms of the established position is an unjustifiable limitation of the said provisions of the Bill of Rights to the extent that it is overbroad and in conflict with these rights. In the Carter case the court reasoned that ‘laws that impinge on life, liberty or security of the person must not be arbitrary, overbroad, or have consequences that are grossly disproportionate to their object’ (para 72).
A minor, minor conclusion
Although the court in both cases ruled in favour of assisted dying, they did so by incorporating the ‘subject’ (the concrete face produced by the faciality machine) into the majority standard. While accepting some faces in its normality function, the courts at the same time, as an ordering machine identifies individual and collective bodies who are not entitled to the change in the established order. As judge faciality machine it inscribes a molar identity on the subject tolerating some divergent types ‘at given places under given conditions’ for example the face has to be an adult, ‘mentally’ competent to make the decision and the subject is called on to proof they suffer from a grievous and irremediable medical condition, but at the same time the faciality machine, at every moment rejects at a given level of choice faces that do not conform, for example a child or a person who are ‘mentally’ incompetent to make an assisted suicide decision or a person who suffers from something other than an irreversible medical condition.
This illustrates how the judge faciality machine in its most general function of facialisation that of biunivocalization or binarisation are unresponsive to different ways of ‘becomings’ that goes beyond the majority standard.
 The question posed by the applicant was formulated as follows: 1) Whether it is ‘conceivable that the health of a person may deteriorate to a level, where he would be justified in wishing to take his own life’; 2) should the person requesting the end of their life be permitted to take his own life; 3) should the person requesting the end of their life be allowed the assistance of another person; 4) may this other person be a medical practitioner and 5) whether there are any safeguards needed for the decision (Stransham-Ford case para 5).
 The case concerned a woman named Gloria Taylor who was diagnosed with a fatal neurodegenerative disease, amyotrophic lateral sclerosis (or ALS), which causes progressive muscle weakness. Lee Carter and Hollis Johnson joined her in her claim. The latter assisted Carter’s mother, in her choice to end her life by taking her to Switzerland to use the services of an assisted-suicide clinic. ‘Other parties who joined the case was a physician from British Columbia who would be willing to participate in physician-assisted dying if it were no longer prohibited; and the British Columbia Civil Liberties Association, which has a long-standing interest in patients’ rights and health policy and has conducted advocacy and education with respect to end-of-life choices, including assisted suicide’. [Carter v Canada (SC) para 11].
 Nietzsche unlike other philosophers such as Kant does not assume an a-piori or higher power, he refuse to see evil as something beyond this earth (Nietzsche 2007: Preface 3-4). Deleuze (2006: 2) explains that for Nietzsche interpretation consist of a twofold struggle: firstly, against those who remove values from critique and creating accounts of pre-existing values (typically Kant and Schopenhauer) and secondly, against those who neither criticise nor adhere to values from their own simple facts (the utilitarians, the scholars, the positivists jurists).
 Section 14 of the Criminal Code: ‘No person is entitled to consent to have death inflicted on him, and such consent does not affect the criminal responsibility of any person by whom death may be inflicted on the person by whom consent is given’.
 Section 241(b) of the Criminal Code: ‘Every one who aids or abets a person to commit suicide, whether suicide ensues or not, is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years’.
 Section 1 of the Charter reads that ‘the Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society’.
 See s 11 of the South African Bill of Rights. It reads ‘[e]veryone has the right to life’. In the Stransham-Ford case the court did not refer to section 11 explicitly. It addressed the sanctity of life as a value in the Constitution.
 Rodriguez v. British Columbia (Attorney General),  3 S.C.R. 519 (Rodriguez case).