A LEGAL CONSIDERATION OF DEATH*
Sergio GARCÍA RAMÍREZ**
Original Text (Spanish) PDF
I. External oracles and codified formulas. II. Right to life and human rights. III. Regarding death: civil law. IV. Death and crime. V. Homicide. VI. Collective murders: war crimes and genocide. VII. Suicide and assisted suicide: right or duty to live?. VIII. Euthanasia. IX. Abortion. X. "Arbitrary" deaths: anarchy and tyranny. XI. Death as "punishment".
I. EXTERNAL ORACLES AND CODIFIED FORMULAS
The following analysis is focused upon life, as a starting point, and death where it all concludes: the alpha and the omega. I shall examine these concepts from a legal perspective, even though both go beyond the law, although the law limits them, accompanies them, and even encourages them. The legal order cannot resolve by itself when life occurs and when death emerges. To determine these things, the lawyer turns to other "oracles", and in this way codifies their imperative formulas.
It would be absurd if these issues —data from biology and perhaps ontology—1 were decided by decree. Of course, the lawyer can ponder these matters, but when he does so, he leaves his familiar territory as a legal professional and enters other areas. He becomes a philosopher, theologian or politician, and with those titles attempts theories and ventures into the debate. Thus, he will leave aside the dogma of his profession and confront dogma that are not his mare nostrum.
It shall not be the lawyer who says when a living being exists: whether from fertilization, segmentation, implantation or sheltering or the appearance of the neural wrinkle,2 or when the foundation appears —which is not legal— in order for someone or something to attain the nature of a person —which is legal— within the time frame subject to intense debate: the phases that begin with the implantation of the fertilized ovule in the womb until the birth and the first breath, which Pérez-Tamayo writes about.3
The most that the lawyer and the law can do, once an issue is resolved beyond the area of the law, is to choose one of those points —thus, the selection will be political— and graft its legal consequences upon the system of social relations. In this way, the law acquires expressions from science —"embryo" or "fetus"—4 and then determines what such terms —stages in the process of life— mean in the legal arena: centers of protection, with many consequences.
There are other issues regarding death. The law dares —and it certainly dares too much— to allow or to order the death of an individual, as it does when it authorizes killing in self defense or necessity, or when it permits the judge and the executioner to decide upon and carry out the death of a criminal. But it cannot, because it lacks competence to do so, define death or unravel the clues that announce the path between life and death. It only can codify what the other disciplines indicate, as can be seen in Article 343 of the General Health Law that clarifies when life has been lost: it suffices for brain death to occur (clause I),5 which is what many scientists and several laws identify as the tout court death,6 or another set of elements (clause II) must be duly proven.7
Should these elements present themselves, then we face a corpse, which certainly is not a legal person, nor is its host, as was the body of the individual while alive. The corpse, an object, is subject to its own legal regulation, different from that corresponding to other objects: it is excluded from property law and is worthy of respect,8 which is assured through criminal penalties.9 We shall not forget, however, that the General Health Law itself provides for the existence of death only "for the purpose of the title" of the law where death is regulated.10 It may be asked in consequence: do many characterizations of death exist because that law has a limited scope? Is there a characterization only for the title of reference; another for the General Health Law as a whole; another, or a few more, for other legislation? The General Health Law’s arguable definition —or perhaps "indefinition"— leads to untenable consequences.
The boundary is not, nor could be, so defined between the physician’s field of work and that of the lawyer. In order to measure the normative and binding power of the principles and rules of medicine, not those which have already been literally incorporated in law —such as those mentioned above— but rather those that are not expressly found in legislation, it is necessary to take into account that the law assigns a certain legal value —and therefore, a power to obligate and bind— to medical ethics and the lex artis of the practice of medicine and other activities related to human health. Thus, the provisions that the lawyer —such as the prosecutor, courts, legal counsel, etc.— use are not only those directly found in law, but rather those incorporated indirectly: again, ethics and the lex artis.11 This must be taken into account when examining some of the most delicate matters that are discussed in the sections below, with regard to medical treatment and death.12
In sum, law builds upon a foundation provided by other disciplines: foundations of particular depth when it comes to life and death. As Teilhard de Chardin says, "since humans existed, they have been preoccupied with themselves. In fact, since some centuries ago, they do nothing but contemplate themselves".13 The law is involved in this self-contemplation, not in the way and for the purpose to which the author of The Human Phenomenon referred, but rather to fulfill an architectural plan: to build a normative pyramid based on human life and constructed for its purposes.
History shows deviations from the rules that are naturally deduced from the presence and death of human life. First, when the legal status of a human person is not recognized: for example, a slave is a person and not a thing. Second, if legal consequences are attributed to the movements of certain natural beings. The "coarse interpretation of biblical passages... or of the Penitential Books" —recalls the attorney Manzini— made possible the introduction of judicial processes against animals: "Oxen, pig, lobster, worms, and moles were judged".14 And third, despite the severe expression mors omnia solvit —which means, more or less, "all ends with death"— judgments against the dead and the punishment of corpses were not unheard of. Let us consider a memorable example: in the year 896, Pope Steven VI exhumed the cadaver —or what remained of it— of his predecessor, Formoso. He placed it before the judgment of the Council and then carried out the resulting sentence: to scatter the remains of the unfortunate Pontiff in the Tiber.15
II. RIGHT TO LIFE AND HUMAN RIGHTS
Life is the axis of all rights. The Declaration of Independence of the United States of America recognized the right to life as "an evident truth".16 As anthropocentric constitutionalism began to develop17 —which is modern constitutionalism— that right would extend, defined one way or another, in a significant number of constitutions, and later the same would happen in the case of international declarations and treaties on human rights. I will only mention a couple of examples. The American Declaration of the Rights and Duties of Man recognizes that "every human being has the right to life" (Article I). And the International Covenant on Civil and Political Rights emphasizes: "every human being has the inherent right to life" (Article 6(1)). Clearly, the legal discussion on this point does not end here; it merely begins.
III. REGARDING DEATH: CIVIL LAW
Now let us turn to death. Law follows life like a body’s shadow: even more, it anticipates life and prepares it; later, when death intervenes, law insists and collects, with memory. It remembers the stages of biological existence and prolongs them in other lives. In this way, the legal order is built like Jano’s head: with two faces, both with a penetrating and harsh look: one observes the past and the other gazes to the future. This occurs in the regulation of persons and the family, employment rights, social benefits, the transmission of goods and interests, the framework of crimes and punishments, and finally organ transplants, which serve as the most graphic and perfect expression of life’s endurance. Legal regulation overcomes, then, the boundaries between life and death, and is scattered, silently or noisily, throughout the many stages of existence.
On the topic of death, two points of view and experiences coincide and complement each other. One is cultivated by white-coated professionals, who come to where life is inaugurated or where death is consummated, and there they carry out their good offices. For them, the fact of death is, in some form, an event both natural and neutral: they do not judge it, they only record the cause of death and the characteristics of the process that lead to it, not without trying with open arms, with generosity and nobility, to prolong life and improve its conditions.
The black-robed professionals have another point of view and cultivate a different perspective. In the famous Rembrandt painting, the participants in "The Anatomy Lesson" are budding doctors, grouped around the cadaver; but they could very well be lawyers. They do not discuss the body of the deceased, making dissections; rather, they converse about what he left behind and the matters he left pending or that others begin: issues of all kinds, some distressing and others pleasant. The characters also perform certain dissections with a knife as sharp as the demanding lex artis of medicine. The common feature of the contemplations of death from law’s perspective is that none are neutral —except, perhaps, the natural death of a poor person— all possess tone, reason and development.
Death, once it is exhausted as a biological fact, takes on the condition of a legal fact. When the white-coated professional withdraws and begins to forget, his black-robed counterpart arrives and begins to remember. Miners practice the art of extracting minerals, which turns stone into treasure. The benefits of death are also possible and frequent. Once mourning ends —or much earlier— it transforms into a trove of wealth and an abundant source of problems. It acquires colors, if not by itself, for what it represents and produces. It does not die completely, to recall Gutierrez-Najera’s poem: non omnis moriar.18 But what remains is not poetry, or at least not for law: what continues on is a mark left by that life, and in this way it is prolonged.
I should step back a moment before continuing along this path, which I will walk along briefly. Civil law, impatient and worried, anticipates death and speculates about it in order to not leave properties and rights unclaimed. In fact, civil law regulates two institutions: a death that has not occurred and a death that has not been proven. I refer to the declaration of absence and the presumption of death. It would seem that the living person is useful within the context of social relations, which justify his treatment as one assigned rights and duties. If life is no longer present, neither are the demands and guarantees.
A human being may lose consciousness and move out of the legal sphere without abandoning it, as occurred not long ago to Terry Wallis of Mountain View, Arkansas, who fell into a coma when twenty years old, and recovered consciousness nineteen years later.19 Another is the case of one who disappears without a trace, making it impossible to certify death or life. We may evoke Rip Van Winkle, whom Washington Irving put to sleep in the Catskill Mountains, beside the Hudson; a nap that lasted two decades, after drinking —"trembling and scared"— the strange liquor that his unsuspecting hosts offered him.20 Let us think as well of the probable victims of natural catastrophes or conflicts and bombings: neither dead nor injured, but rather "disappeared", an ambiguous expression, which relates to certain criminal conduct that only ceases when "the disappeared appears" or it is learned that the person has died.21
If the individual disappears, as the Civil Code states (Article 649), the path to death is begun in law, which has various stages: the naming of the trustee, designation of the representative, declaration of absence, and presumption of death.22 If the presumed-dead individual returns, surely he will discover more changes than his hypothetical predecessor —not only because the United States has gained its independence from England, as the "good and simple" Mr. Winkle was stunned to realize—23 but rather because other dependencies and independencies will have occurred that will seriously change what remains of that individual’s life.
I now return to the case of a death that is duly known and proven. In the Civil Code there is a "book" —as the sections of this extensive code are called— that owns a provocative, double-edged title: "Of succession". In that section of the law inheritance is defined as "the succession of the property of the deceased and of all his rights and obligations that are not extinguished by death" (article 1281). And the rights and obligations that are not extinguished, which survive the deceased as well as cremation or burial, are those that concern worldly goods —that, for many, are all that exists. It is then when the deceased receives a new name, which is not "dead" but rather "de cujus"— that is, de cujus succesione agitur, the person who is succeeded —and the goods the deceased accumulated inter vivos are transformed into goods mortis causae—. The transfer of wealth, which goes from the deceased to the living, has a ticket for travel called the will. Once the will possessed a dual nature: a reference both to divinity and humanity. Aware of what was to come, the author of a will first included a chapter confirming his faith and fear of God, confessions of mistakes, and cautious apologies, and only after distributed the property.24 It is possible that God was patient during the first chapter, but the successors were not likely to be so tolerant while they awaited the second.
Many survivors waited anxiously and hopefully for the new legal status: anxiety and hope that comes from the future condition of heir or legatee, and a step forward, usufructuary or owner, or perhaps as the probable successor of jobs and titles: the horizon, in both cases, becomes clear. The last breath has a codified nature: it transmits property and hopes. In Tolstoy’s famous story, "The Death of Ivan Ilych", the magistrate judge moved his colleagues with the remark "everyone greatly appreciated him", but appreciation did not prevent them from considering certain plans: "the death of that man left a vacant position, that made everyone think of the possibilities".25 The more immediate and certain the hopes, the greater they become for those who feel the wing of fortune between their hands. Perhaps for that reason the potential heirs of the wealthy man from Orizaba, who still had not died, became so contemplative, and even ingenious, in Hugo Arguelles’ play. They even obtained a death certificate ahead of time and placed a casket in a corner of the dying man’s room, "to see whether he would die just by looking at it".26
Death cannot be the reason for wealth to come undone and for patrimony to be dispersed, nor should it cause the deceased’s relatives to sleep without a roof over their heads. This is why an elaborate fabric has been woven so that death does not lead to ruin, neither for society nor for creditors. In the past, the law favored the first born and the benefits of primogeniture, which the French Revolution fought insistently in the name of "the most absolute hereditary equality".27 And in current law, institutions of family law and social security work for this very purpose, while some forms of concentrating inheritance in one person also continue, such as in the case of common succession within Mexican agrarian law.28
IV. DEATH AND CRIME
Now we find ourselves considering death in the sphere of crimes and punishments, where it acquires more intense characteristics. Crime, criminals and punishments quickly entered the stream of social concerns. They are often the subject of academic, as well as popular, literature. The most dreadful crimes fill the classic works, and could never exist without the darkest corners of the soul where crime is paid for. Shakespeare’s tragedies are a superb example, as is England’s history, which of course is not alone in the gallery of crime. The Divine Comedy is an exploration of sin, but also of crime —often combined together— that are atoned for in the infernal circles. All of the circles contain violators of the law —divine as well as human law— yet in the seventh are found the violent crimes: against God, against oneself, and against others. This is the residence of murderers, among others.29
In literature are found, writes Quintano-Ripollés, "the crimes of the theatre fanatics in Dostoyevsky, the cold and the cerebral in Huxley, and the brutally passionate… in Baroja".30 Nor have criminal processes been left out of these explorations, neither before31 nor now. Crime is even assimilated into art, in other words, it is enjoyed for its aesthetics. In such a performance, it is important that "a good murder have more than two fools, one who kills and the other who dies, a knife, a purse, and a dark alleyway. The plan, location, light and shade, poetry and feeling" —suggests De Quincey— "are now considered indispensable for efforts of this nature".32 This writer especially praises the murderer John Williams, who in 1812, "wrought destruction in two homes, annihilated almost two complete families and reaffirmed his supremacy over all of Cain’s sons". He claims that those murders were the "most sublime and perfect that have even been committed".33
Under the light of law, or under its shadow, death can also be prohibited when it is committed by a third party. This is the world of crime, or at least seems to be. It is the world of those who "live from crime", as Elías Neuman points out in the title of his incisive book:34 those who live from it, in fact, with more or less creativity, better or worse motives, appreciation or scorn from their fellow citizens.
Homicide is the violent crime par excellence and it extinguishes the essence of life. The old criminologists thought that certain facts could be considered "natural crimes", because when and wherever they would be observed they would be treated as criminal acts. It was said that such acts transgress the ideals of compassion and integrity, and thus attack the very existence of society.35 The maximum crime against compassion is homicide.
"Human life is the most protected value in criminal law".36 This is why it is one of the first crimes in the mise en scéne of the many crimes included in criminal codes, which define the legal interests protected by the threat of punishment,37 as can be observed in our most recent codes: those of Morales and Tabasco, for example, and the current code of the Federal District, of 2002 —unlike what occurred in the 1931 Code, reformed so many times that only its title is maintained— and still happens with the federal legislation, eager to keep alive the work of the twentieth-century legislators.38
When attorneys have worked in this matter, which they have constantly, between difficulties and contradictions, accumulating laws and doctrine that work for everything except alleviating the burden of crime, they do not stop considering the cause of death. Here I speak of "cause" in two meanings of the word, radically different from each other. First, the factor that brought the death about, due to a causal relationship between a certain fact and its result;39 second, the bundle of impulses or conditions within the criminal, the victim, or both, unleashed suddenly or at the end of a long, deliberated and prepared process, in which the death —or rather, the future homicide— was carefully planned. Both meanings, for different reasons and with different expressions, concern the law, as well as the tight relationship between the law and other scientific and technical disciplines.
Rodion Romanovich Raskolnikov, masterpiece of the literature on criminology, concocts the homicide —or femicide, as it is preferred to say now, altering the neutrality of the term— of the lender Aliona Ivanovna. He plans it internally and then carries it out externally, on the stage. Both create the suitable circumstances, the necessary iter. "A strange idea appeared in his mind, obsessing him". Two things worry him until they bring him anguish: the "weakening of the will" and "staining his hands with the blood".40 Nevertheless, as Lady Macbeth would say, there is a stain here that the hands never will be cleansed of.41
The victim also participates in the dynamic of bloody crimes. There is much distance between the irrelevant victim and the one who is chosen. As is seen in the first homicide in history. Cain, whom De Quincey designates as "the inventor of murder and the father of art", although his fratricide "was nothing more than average",42 does not kill just anyone — although in that moment anyone was not many: only Adam and Eve were around, other than Cain’s brother Abel. He did it for perfectly established motives that did not arise in anyone else: jealousy for the divine preference.43 Reason enough.
Murder for reasons of passion is usually a circumstance that will not be repeated. Of course, there are unexpected victims, completely innocent, although they have some characteristic that catches the attention of the murderer. Nathan F. Leopold, co-author, with Richard Loeb, of Bobby Franks’ death in 1924 —what some called the "crime of the century"— did not exactly know why he had taken part in the murder, but did not hesitate to affirm that "if you thought about choosing someone to kidnap, Bobby was exactly the right guy".44 So Bobby, who happened to be there, had to die.
Another aspect of selective violence is seen in the assassination of the tyrant, or more generally, the powerful political leader, the "magna" individual, which is the origin of the expression magnicidio in Spanish. It is a political crime in the upward sense: committed from below by the average citizen, in exchange for the many crimes that were carried out in the opposite direction: from the summit against the people of the plain. Magnicidio, say philosophers and killers in a strange alliance, brings peace to the citizenry. Carlota Corday murdered Marat to give peace to her country. And when the president of the revolutionary tribunal asked her, made curious by her forthright confession, whether she thought she had killed every Marat, Carlota replied without hesitating, calm and confident, "one is dead, perhaps the others will begin to fear".45 This is what criminal lawyers would call, in the public criminal system, "general prevention".
The condition and identity of victims are, then, as relevant as they are decisive: as in the cases of Brutus and his accomplices in the murder of Julius Caesar; John Wilkes Booth, who deprived Lincoln of his life in the Ford Theater; the attorney Guiteau, who killed President Garfield; Caserio, killer of Sadi Carnot; the obscure laborer Leon Szolgosz, who killed President McKinley; Gavrilio Prinzip, who attacked Archduke Franz Ferdinand and his wife Sophia, igniting World War I; the false Petrus Kalemen, who assassinated Alexander I of Yugoslavia and Minister Barthou and gave new life to the idea of an international criminal court;46 Jacques Mornard or Ramon Mercader del Rio, Trotsky’s killer;47 Nathuram Vinayak Godse, who murdered Gandhi; Lee Harvery Oswald, assassin of Kennedy —if we believe the controversial Warren Report—48 and, of course, examples of our own troubled history in Mexico: Cardenas and Pimienta, in the cases of Madero and Pino Suarez; Guajardo, in Zapata’s case; Lozoya, Salas Barraza and seven more in the case of Villa; Leon Toral, in the case of Obregon; Aburto in the case of Colosio. Of course, De Quincey does not leave out the hierarchy of magnicidio. He describes seven "splendid works" in this genre and praises the mastery of the perpetrators: "what a glorious group of assassins!".49
In our country high rates of murder continue. One study held that, in view of such data, Mexico is "the most dangerous country in the planet".50 If one considers the absolute number of homicides, first place belongs to India, with 62,140 per year, and fifth place goes to Mexico: 14,947. But if the correlation is made between murders and population, Mexico is at the top, with 17.8 per 100,000 inhabitants. While there was a worldwide decrease during the 1990s, in Mexico the murder rate went up: from 18.7, at the beginning of that decade, to 28.9 at its conclusion.
Nevertheless, the official figures in Mexico City indicate a considerable decrease in the number of intentional homicides: in 1993 there were 921 reports of the crime, while in 2002 there were 748. In this way, the average daily murder rate was 2.05.51 However, the polls taken did not reflect this promising decrease: 15 percent of those interviewed perceived an increase in the murder rate from 2000 to 2001. 31 percent of those consulted had a similar view with respect to the first months of 2002.52
The traditional forms of murder have been joined by other expressions of homicide such as serial crimes against women. There are somber precedents in the natural history of crime: Francisco Guerrero, a.k.a., the "chalequero", whom the newspaper El Imparcial called "the most terrible Mexican criminal in the last half century";53 Gregorio Cárdenas-Hernández, a.k.a., "Goyo" and "Higinio Sobera de la Flor". But none of these women killers comes close to the extremely serious case of the murdered women of Ciudad Juárez, Chihuahua: the figures vary,54 and the theories abound, but there is no certainty regarding the 10 years from 1993 to 2003.
Clearly not all murders respond to the same pattern: some are intentional or with malice or negligent; among the intentional murders, one may distinguish simple from qualified homicide. There are various factors taken into account. One author has described the following variables: relationship between the perpetrator and victim, the way the crime was carried out, causes or motives, psychological connection or the perpetrator’s purpose.55 The new code for the Federal District refers to advantage, treason, premeditation, retribution, means employed, rage and provocation (Article 138), to which one may add —in order to arrive at an aggravated punishment— family ties, marriage status or "other partner relationship", between the killer and the killed (article 125).
In daily experience aggravated crimes abound, particularly in family feuds, when passions and psychopathic behavior are common. The notorious General Rodolfo Fierro’s extermination of the "colored" prisoners was clearly aggravated. One after another was killed, with absolute premeditation, with complete advantage, with perfect rage: "the anguished flight of the prisoners to the wall" —recounts Martin Luis Guzman— "took almost two hours, surreal, deceiving, implacable... Their mass execution happened in a tumultuous clamor where the gunshots were swallowed by the immense voice of a howling wind".56
Killing can also be legal, or at least not incur criminal responsibility. That occurs when a life is taken in self-defense, in the state of necessity, or in the fulfillment of one’s duty, for example. Law demands of no one heroism or sacrifice —except those who have the strict duty to confront danger— and for that reason there is no punishment for he who takes another life to save his own. Examples of this are found as much in history as in literature, such as homicide among shipwrecked sailors who partake in cannibalism, who cannot save themselves otherwise.
Edgar Allan Poe tells of such a terrible scenario, through the words of his character Arthur Gordon Pym: "For much time I thought we would be obligated to resort to this frightful extreme... luck would take care of it, in a terrible lottery".57 Jules Verne followed Pym’s trail: "it does not contradict reason admitting the reality of such facts", he said, "since the tension of the situation takes us to the ultimate limits".58 And it is right to admit it, because facts of this nature, indeed, were proven to have occurred: the wreck of the ship "La Mignonette", in route from Southampton to Australia. After many days, three of the four sailors decided to eliminate the weakest and sickest, in order to eat his remains. The case eventually was examined by Queen’s Bench, which condemned the killers to death. Queen Victoria, more understanding, commuted the punishment to six months in prison.59
VI. COLLECTIVE MURDERS: WAR CRIMES AND GENOCIDE
In the wide genre of criminal death exist collective variants, the most bloody and perhaps most reproachable. Humanity has not always benefited from the teaching of the Manu law of war, 1,300 years ago, that established certain rules about the use of weapons, compassion towards the defeated enemy or prisoner and the treatment of the wounded,60 which anticipated the Geneva Conventions. Nor has it always been effectively and uniformly recognized that war "invalidates all rights",61 as Grotius did in his writings on the subject. Now, war crimes are among those included in the jurisdiction of the International Criminal Court, located in The Hague.62
For its part, genocide —a term first used by the attorney Lemkin— represents homicide in its most reprehensible form. Its development in the twentieth century led to a series of atrocities that have assured that century a dark place in the moral history of mankind.63 The inaugural genocide of the twentieth century was the annihilation of one million Armenians in Turkey between 1915 and 1916.64 Next came the Holocaust perpetrated against the Jews, which led the United Nations’ General Assembly to declare, on December 11, 1946, that genocide constitutes an international crime. In 1948, the Assembly adopted the Convention on Genocide, to which Mexico is a party. In addition, genocide has also been placed under the subject-matter jurisdiction of the International Criminal Court.65
Genocides —regardless of whether they are technically characterized as such, or simply as "extralegal or arbitrary executions"— have continued throughout the century. For example: the massacre of half a million civilians in Indonesia; 300,000 in Pol Pot’s Cambodia; tens of thousands in Ethiopia; a quarter of a million in Idi Amin’s Uganda; several thousands in Iraq and Chad.66 Not to mention the atrocities carried out in the former Yugoslavia and in Rwanda. And none of these modern horrors should distract us, after all, from the massive genocide carried out on our own continent: Cook and Borah’s startling statistics reveal that the indigenous population in Mesoamerica fell from 15 million in 1519 to just 2.5 million in 1548.67
VII. SUICIDE AND ASSISTED SUICIDE: RIGHT OR DUTY TO LIVE?
In addition to the death inflicted by another, there is also the death that occurs by one’s own hand. Somewhere between these two events lies a perplexing gray area in which death is composed of differing, and sometimes dark, combinations of the desire of the person who dies and the will of the person who contributes to that death. Suicide, which —if we adhere to the extensive definition of Emile Durkheim—68 runs the gamut from the death of a hopeless man to the self-sacrifice of a martyr or a hero, presents a profound question as to the right to dispose of one’s own life. Although today we freely dispose of many of our possessions, there is no unanimity —nor has there ever been— regarding the right to dispose of one’s own life, man’s most valuable possession.
Are we in fact the owners of our own lives? Is life a right that we can deprive ourselves of; a legal interest that we can destroy as freely as any other that belongs to us? Once life has been given, may its beneficiary unconditionally decide whether to conserve it, to squander it, or to terminate it? Furthermore, is life an obligation? Is it reasonable and fair —issues that must be resolved before constructing legal norms— that the right to life may also constitute an obligation to live? The answers to these questions guide our understanding of the legal issues that they create: among them, abortion and euthanasia.
Suicide —which is on the rise in Mexico, although the rate is still comparatively low in the international context—69 is not currently prescribed by our criminal law. However, that has not always been the case. Religious considerations, which now form the basis of theological and moral arguments, also once bore heavily upon the determinations of the legislator. In times when sin and crime were considered one and the same, the sin of suicide carried a punishment —in this world, as well as in the next—. The person who takes their own life, it was said, assumes a power that they do not possess. Yahweh advised: "I give death as well as life".70 Thomas Aquinus wrote: "Suicide is completely illicit". He based his affirmation on various arguments, among them "that life is a gift given from God to man, and the divine power is the only one that can make decisions about man’s life or death".71 John XXIII reminded us that "human life is sacred; its very existence reflects the creative act of God".72 In light of this philosophical trend, which has persisted for thousands of years, the Council of Arles in 452 declared suicide to be a crime born of a diabolical impulse.73 The Q’uran, which continues to exert a powerful influence over the law and customs of Islamic nations, follows in a similar vein: "God grants men a respite for a determined amount of time. Man can neither delay nor advance this time, even by a moment.74 Only God decides who shall die: none may anticipate his decisions".75
Legally, to die or not to die is a matter of personal choice, but it has only been in relatively recent times that the law assigned these issues to the realm of the conscience. Today Petronius’s bitter mockery or Werther’s impatience would seem far removed from our time and culture —but only in certain respects—. The story of the first resonates from our adolescent readings: he who opened his veins and allowed Eunice to do the same — with them "perished" —says the writer— "all that was then left of their world: poetry and beauty".76 And Nero survived.
Death was also the theme of Werther, one of the most famous literary suicides. The young Werther, who "had never made a secret of his ardent desire to leave the world", lamented the moral repugnance that then accompanied the discussion of suicide. "Due to what misfortune is it impossible to speak of anything without pronouncing ‘That is crazy’, ‘That is just’, ‘That is good’, ‘That is bad’?" Shortly thereafter, Werther —about to make his famous "definitive resolution"— offered a theory about the boundary between life and death: "It is not a question of knowing whether a man is weak or strong, rather it is a question of whether he is capable of bearing the burden of his afflictions, moral as well as physical".77 This last leads us to the door of euthanasia in its most characteristic version: death to avoid suffering. Later paragraphs will address that topic.
To be sure, there is enormous difference between the many species that fall within the prolific family of suicide. Up to now I have been discussing individual cases, which occur for very personal reasons. However, there are other kinds of suicide as well: couple suicide, group suicide, mass suicide, agreed or premeditated, induced or spontaneous, which all have their own motives and characteristic dynamic. So it was in the tragic cases in Guyana, where 923 people died under the orders of Jim Jones, and in Waco (United States), where 86 members of the Branch Davidian Sect burned themselves alive.78 And there are heroic suicides, in which many men choose to die before they will surrender or fall into enemy hands, as in the cases of Numancia and Massada, in those communities’ respective attempts to resist the power of Rome.
With regard to the punishment of suicide, it is obvious that it can do little to affect the spirit of the sinner-criminal. Nevertheless, it can, and often has, operated against his body, in a direct or symbolic way: the first, by exposing, attacking and destroying it; the second, by depriving it of burial in the cemetery, as an announcement that the sinner has been denied entry into Paradise. Furthermore, another phenomenon emerged in the ancient law which the modern criminal law has vigorously rejected: the extension of the crime beyond the point of death; in other words, the transcendence of the crime’s consequences, which then lay siege to the deceased’s descendants and family members. For those who are already dead, after all, the rule of mors omnia solvit does not suffice. The Council of Prague of 563 decided that those who committed suicide "would not be honored with any commemoration in the holy sacrifice of the mass, and that the chanting of the psalms would not accompany their corpses to the tomb".79 Instead, there would be a criminal judgment and a penalty would be exacted, even if the execution had to be carried out in effigy.80
Cesare Bonesana, in his brief but rich work, which revolutionized the regime of crime and punishment at the end of the 18th century, pointed out the absurdity and the injustice of the punishment of —among other things— suicide: that "which can only fall upon the innocent or upon a cold and unfeeling corpse". Suicide is "a sin which is to be punished by God, because only He can punish after death; it is not a crime to be dealt with by man, given that their punishment can only be carried out against the family, and not against the guilty party himself".81 When cemeteries were removed from the control of the church, as was done in Mexico by decree on July 31, 1859,82 the practice of denying burial to suicide victims —which had also been denied to sodomites, Protestants, heretics, and those who had been excommunicated— ceased.83
I also mentioned those circumstances that fall in the intersection between suicide and homicide: the gray area where the decision of the one who dies combines with the will of the person who contributes to that death, whether by inspiring it, executing it, or supporting it. Our codes define and prescribe punishments for inducing suicide and for aiding in its commission. There are various legal definitions of such acts, and they are invariably sanctioned, although the punishment is often quite modest in comparison to that reserved for homicide.
The foregoing situation gives rise to a natural question: should he who assists a person who wishes to die in committing suicide be punished, even though suicide itself is not a crime? One line of thought proposes a conclusion based upon the connection between the act, its author, and the co-participant: "Any kind of complicity presupposes the existence of an illegal act committed by the principal author. Given that suicide is not included in the crime of homicide, which only occurs when one man takes the life of another, there can be no complicity by the co-participant since no crime exists in the first place".84
From a different perspective, however, it can be argued that while suicide may not give rise to punishment for the author, it should still give rise to punishment for a third party who participates in it. This theory distinguishes between acts which are legal, acts which are illegal, and acts which are legally tolerated. Suicide belongs to the latter category: what can be tolerated in the author is not tolerated in a third party who assists him in the act.85 Díaz-Aranda summarizes this position: "the right to dispose of one’s own life is a right that belongs to the individual, who, in light of the consequences, should enjoy total freedom in his choice". The beneficiary of life may dispose of it, but he has a strict obligation: "he must not involve third parties or the State in his decision, or in the act itself".86 In other words, while there is a right to die, this cannot be transferred to another person and create, therefore, a right to kill.
Among the various forms of assisted suicide is one which goes much further than the others and which, in essence, constitutes a homicide: the execution of the act by the co-participant. This latter has carried diverse denominations: assisted suicide, homicide-suicide —which is the title of a classic work by Ferri— consented homicide, requested homicide, mercy killing, and fraudulent homicide.87
1. General considerations
It is within this aforementioned category of assisted suicide that euthanasia arises: an act still considered shameful and practiced only discreetly, for euthanasia results in the loss of human life — even if the life is legally "devalued", as stated by my esteemed colleague Olga Islas, as a result of the request formulated by its owner.88 This merciful death, either expressly requested or with the presumed consent of a person confronting a serious illness and experiencing intolerable pain, represents one of the greatest issues in the intersection between law and medicine. It is the quintessential question of bioethics. We cannot dissimulate: the "good death" abounds in practice even as lawyers pontificate on the prudence or imprudence of authorizing it, or at least of moderating its criminal consequences, which tend to be more severe in the written law than in the sentences imposing them. In sum, "the judgment of euthanasia is one of the most difficult problems within criminal law".89
The history of euthanasia —and above all its legal history, which is what this article addresses— has been long and troubled. And there have been more than a few descriptions of the act, carefully outlining its vague contours: "quick and easy death" says Suetonio; "honest, dignified, glorious death", states Cicero; "peaceful and easy death", as it was called by Francis Bacon; "merciful and compassionate death", according to Morselli; "beautiful death", in the words of Quintano-Ripollés.90 As for the expression "euthanasia", it is reproachable for what it evokes: Nazi brutality, built up, piece by piece, through laws regarding mandatory sterilization, castration, and the termination of "worthless lives".91
Through this slow progression, the elimination of those who were not worthy of life, or who no longer desired it, came to be seen as natural: in other words, of those who arrived in the world defeated, or those who wished to escape from it. Plato referred to "very sick" men: neither they, nor their neighbors, nor the city itself, would value their existence, "even if they were richer than Midas". He recommended that physicians and judges simply let them die.92 Thomas Moore, today recognized as the patron saint of modern politics, describes the situation in which suffering besieges a sick man in Utopia:
He is absolutely incurable, and as a result, he experiences terrible suffering; the priests and the magistrates appeal to the patient, telling him that, given that he can no longer accomplish anything of value in life and is a bother for everyone else, and torment for himself, now that there is nothing left but to wait for his own death, he should not… continue to tolerate the suffering of such a life, and that, as such, he should not resist death —hopeful as he is to liberate himself from a bitter life— nor should he resist allowing others to liberate him from it. Only with death can there be an end —not to his happiness, but to his torment—. And as this is the advice of priests, interpreters of the will of God, it seems that it will be merciful and pious to proceed in such a way.
Moore concludes with absolute certainty: "Those who are persuaded are allowed to die voluntarily of starvation or are freed of life while they sleep, and feel no pain. This end is not imposed upon anyone against their will, and if they refuse, they continue to be given the utmost care. Nevertheless, those who end their lives in such a way are honored".93
However, the classical world —among others— also contemplated the opposite viewpoint — the one still proclaimed by physicians when they take their oath upon entering practice: "I will not administer lethal drugs, even if the patient requests them, nor will I suggest that they do so", in the words of Hippocrates. And it is exactly what the doctor Desgénéttes replied when Napoleon ordered the death of his fatally-ill soldiers: "My duty is to keep them alive".94
The characterizations of euthanasia are diverse. With solemn rhetoric, the Mexican essayist Francisco González de la Vega, who was read for many years by professors and students in our law schools, referred to "those merciful crimes in which one person, before the incessant pleading of a victim of a cruel and incurable illness, takes his life in order to end his pointless suffering".95 The German professor Klaus Roxin points out that "euthanasia is understood as the help provided to a seriously ill person, upon his request, or at least according to his presumed will, in order to allow him a humane and dignified death in accord with his own wishes".96
The Spanish writer Royo-Villanova gave an even more expansive and illustrious description:
Sweet and peaceful death, without physical pain or mental suffering, which can naturally overcome us in old age, which can occur in a supernatural way, as in the exercise of divine grace or the exaltation of stoic virtue, and which can also be artificially induced for therapeutic ends, in order to avoid or shorten an inevitably long and painful death, but this latter always according to legal regulation or the consent of the ill party.97
This broad paragraph would make room for another Spaniard, Jiménez de Asúa, to create a copious classification of the forms of euthanasia: sudden, natural, theological, stoic, therapeutic, eugenic, economic, and legal.98
Advances in medicine, which now prolong human life in a way it could not do just a few years ago; the horrors inherent in the treatments which are applied in the outright fight against death; the secularization of all aspects of life —among them death itself—;99 the conflict between those two values that usually go hand in hand, but which on occasion separate themselves and struggle against each other —life, on the one hand, and quality of life, on the other— all force us to consider the grave possibility of terminating life, or of permitting it to fade away prematurely, in exchange for preventing the suffering of a long, terrible death. The Spanish professor Lorenzo Morillas-Cueva expresses the dilemma most aptly: "the choice is not simply between killing and not killing, ending life or not ending life, but is rather the choice between accepting a long and painful death or a short and peaceful one".100 This point gives rise to a host of issues for healthcare professionals, who observe the fate of the terminally ill, and for lawyers, who must resolve the issue either in the words of the law, or in their decisions. The dilemmas are deep and the solutions are difficult.
Today, the topic of death —wherever it is presented— creates ever larger problems both for doctors and for the administrators of healthcare facilities, which receive millions of patients, many of them only to live out their final days without hope of recovery. "In earlier times, people were born and died in their homes; nowadays, birth and death take place in hospitals". These changes force doctors, among other things, to treat dying patients up-close and for the first time.101 This situation creates new and renewed pressures: the patient, the family, the doctors, and the nurses must all face problems and undertake decisions which are relevant not only for medicine, but also for the law, which is the guardian of life.
There are examples of euthanasia that have raised social consciousness and stimulated sympathy. Among them is the case of Pasteur and Tillaux, who confronted the suffering of the Russian peasants who were afflicted with rabies, a devastating and incurable disease. Axel Munthe refers to the process: "That same night, the two doctors had a conference: few knew the decision that they had made during it, which was, nevertheless, the most just and merciful one". Jiménez de Asúa attempts to persuade readers on euthanasia in his work Freedom to Love and Right to Die, which refers to this and 37 other moving cases.102
In recent times, similar cases have again demanded the attention of doctors, legislators, judges, and philosophers —who have been placed in a predicament by public awareness, which both judges and makes demands upon them—. One well-known case is that of Karen Ann Quinlan, whose parents finally received authorization from the Supreme Court of New Jersey to remove their daughter from the life support mechanisms that had been keeping her alive. Nevertheless, the sick woman survived for several more years.
The case of the Spaniard Ramon Sanpedro was quite different —and truly spectacular, in more than one way—. He lived as a paraplegic for thirty years, during which time he appealed, without success, to the Spanish courts as well as to the European Court of Human Rights, to request that they not "punish the person who helps me [commit suicide], knowing that it is in order to bring about my own voluntary death". Life —Sanpedro said— "is a right and not an obligation". Millions of television viewers observed the final fate of the paraplegic on Channel 3, who agreed to the filming and broadcasting of his death.103
In France arose another moving case: Marie, the mother of the young paraplegic Vincent Humbert, put her son into a deep coma; then a medical team, led by doctor Fréderic Chaussay, disconnected the apparatus that was keeping Vincent alive. Vincent had expressed his vehement desire to die. He asked President Chirac to authorize his death. The leader replied, in a handwritten letter: "The President of France does not have the authority that you invoke".104
In her beautiful work, Simone de Beauvoir records the tragedy of painful illness and desired death. Maurice, her uncle, pleads: "End it with me. Give me my revolver. Have pity on me", and her mother, afflicted with a terrible cancer, cries: "It burns me. It is terrible, I cannot bear it. I cannot bear it anymore… I am too miserable". In this disturbance, Beauvoir confesses: "I asked myself how one can go on living after a loved one has cried out to them in vain: Mercy!".105
Between hope and despair, a prisoner infected with AIDS in the Villa Devoto jail in Buenos Aires demanded that they allow him to die or to fight for his life:
I don’t want —he claimed— for the doctors to struggle to keep me alive when I lay dying, beyond all hope of recovery, in a bed in the Muniz hospital. I don’t want them to plug me into a machine so that I keep breathing. The national authorities will only pardon me while I am in a coma. I want them to set me free when there is still some time — not so that I can die in my bed, but so that I can fight for my life.106
Years later, another paraplegic, Dianne Pretty, who had been kept alive on a breathing machine, appealed to the European Court in a case brought against the United Kingdom, requesting that they authorize a mercy killing. The Court, which issued its judgment on April 29, 2002, sympathized with the motives of the complainant and mentioned the possibility that the co-participant might receive benevolent treatment by national tribunals, but it refused to give advance authorization for homicide.107 In the last months of 2003 another turbulent legal battle was played out in the state of Florida: the mercy killing of Terri Schindler-Schiavo, authorized by a court order which permitted doctors to disconnect the feeding tubes that provided nourishment to the unconscious patient. The order was vigorously contested by Schiavo’s parents, as well as by many outside observers, and by the State’s Governor himself.108
The criminal law —which should serve to fill in the gaps in the health law— offers various solutions to this enormous and growing problem.109 The first and more rigid position would define the act as homicide, which may differ in degree based upon the circumstances of the case — and leave it to the judge to decide, within the sentencing guidelines, upon the penalty applicable in light of the author’s motives and the conditions of the victim.
A second position would punish the act in a unique way: as an autonomous crime, a "privileged homicide", with moderate or minimal punishment. This is the tendency which has arisen most recently in the Mexican criminal law. A third possibility would grant the judge the authority to either impose a punishment or to abstain from doing so. This was the solution suggested by Jiménez de Asúa and implemented in Uruguay.110 "We leave the judge" —stated that famous essayist, last President of the Spanish Republic in exile— "the authority to pardon".111
There is, finally, a more liberal alternative: to provide in the law (in response to strong public support for such a measure) for the possibility of mercy killing, imposing conditions upon it which aim to impede —at least as far as possible— euthanasia from being employed in an unauthorized manner. Laws promulgated in Holland on February 9, 1993; in Australia, on July 10, 1996; and finally in Oregon (United States) in 1997 —with the Act for Death with Dignity— have all represented a movement in that direction, albeit in different ways. It is obvious that the legalization of euthanasia, if effected, does not imply its imposition on those who reject it. To my way of thinking, Rafael Navarro Valls’ comment on abortion is applicable: "all legalization… necessarily implies the admission of a corollary right to conscientiously object".112
One must consider, in this line of thinking, where the doctor fits into the formulations of the criminal law. Usually, he plays a prominent role: whether in defining certain elements related to euthanasia —the existence of an incurable and terminal illness, and of treatment alternatives, for example—; or whether in being responsible —either with family members or alone— for considering the conduct required by the situation, and the possibility of depriving the patient of life, whether in a direct or indirect, active or passive manner. The intervention of all people —such as in cases of assisted suicide— is not necessarily included in the criminal law’s characterization of euthanasia: that is, as a form of homicide with a mitigated punishment.
The legal debate over this subject —a long and intense debate— has reached the conclusion that:
The legal treatment that, directly or indirectly, has been given to the issue of euthanasia in various countries is not satisfactory or, in any case, it does not satisfactorily resolve the cases in which the subject has the right to a dignified death, and as such, also has the right to be assisted by third parties, especially by qualified medical personnel, in that situation.
What is necessary is "an express legal regulation of the problem, which approaches in a more global and generalized way the right to a dignified death and to medical and human assistance for that end".113
A select group of Spanish professors has proposed the establishment of a new set of regulations of euthanasia, as well as how such regulations should be formulated. With regard to the first, it is said that "any regulation which recognizes the right to die must presuppose an effective and general recognition in the health law of the right of the patient to decide, freely and after being fully informed, which medical treatment will be applied to him". According to this foundation, the corresponding criminal norm would be:
The induction of the death of another shall not be punishable whenever it is carried out by a doctor, or by any party acting under the other’s instructions; whenever the latter has expressly, freely, and seriously requested it, is at least 18 years old, and has normal mental capacity; and given that the latter suffers severe pain which can neither be alleviated nor effectively mitigated in any other manner, and which arises from an incurable condition that will inevitably lead to death, or which, being permanent, leaves him generally incapable of managing on his own.114
However, a cautious attitude must be assumed with regard to the law’s capacity to deal with the issue of euthanasia in any kind of satisfactory way; in fact, its ability to do so is not dependent upon the lawyer, but rather upon the existence of a consensus outside the sphere of law —and of course, there is none— in that area where the deepest, most difficult, and most troubling moral issues are contemplated. As a result, Roxin states that:
The kind of "satisfactory regulation" to which we lawyers aspire in other realms and which, occasionally we successfully achieve, cannot be practical here; for the death of a person filled with suffering will always be viewed as something terrible. But it is possible to try to orient the law so that, within the framework of the possible types of assistance, it will allow, permit, or as it were, only tolerate the least possible amount of wrong.115
2. Mexican legislation
The regulation of this topic in modern Mexican law has its origins in the Code of Morelos of 1996, the Code of Tabasco of 1997, and the Spanish Code.116 They inspired the regulations for the Federal District, adopted in 2000, which state: "He who deprives another of life, when that person has expressly, freely, and seriously requested it; when effected for humanitarian reasons; and when the victim is suffering from an incurable illness in its terminal stages, will be condemned to prison for two to five years" (article 127). This latter is a very modest punishment in comparison with those imposed for homicide —eight to 20 years (article 123)— and for aggravated homicide —20 to 50 years (article 128)— and even in comparison with those that correspond to the taking of life in mitigating circumstances; for example, brawling: four to 12 years (article 133), infanticide: three to 12 years (article 126), and homicide committed under extreme emotional distress: one third of the punishment prescribed for the commission of homicide (article 136).
The criminal law, then, has already determined that within the genre of homicide there is a type of conduct, euthanasia, which cannot be likened to other forms of taking life, and which deserves, given its circumstances, motives, and purpose, distinct and more merciful treatment. In this determination, we have the start of a specific legal definition of euthanasia, which builds upon the elements of the traditional definition of assisting or participating in a suicide.
This legal definition of euthanasia includes three specific elements, all of which are difficult to define and evaluate. Two of them are directly related to the victim: his request for death and the agony that he suffers. These former elements are directly observable. The third, however, relates to the person who carries out the euthanasia: that is, the reasons why he does it. These reasons, which are imminently internal, can only be assessed in an indirect manner: by presumption or by inference. It should be noted that this definition leaves out several elements which are employed in other country’s legal systems; for example, medical intervention (other than that which can be inferred from the requirement of knowledge that the victim is facing "an incurable illness in its terminal stages"), as well as reference to the type of agony that the subject suffers, which could be simply equated with "pain" or could also extend to other situations, as has been suggested in the German law on euthanasia, which was developed by lawyers as well as doctors.117 With regard to this latter element, how can we forget the doctor’s explanation to Praskovya Fedorovna of her husband Ivan Ilych’s suffering: It was true, as the doctor said, that Ivan Ilych's physical sufferings were terrible, "but worse than the physical sufferings were his mental sufferings, which were his chief torture".118
In addition, the legal definition of euthanasia presents a stream of questions, which could be answered by doctrine, but which the case law should ultimately resolve. Of course, I am not suggesting that those questions absolutely lack answers; there are answers, in many cases, to be found in the legal theory, legislation, and jurisprudence of foreign countries, above all in countries where the problems that euthanasia presents have been frequently confronted by national tribunals and, occasionally, by international ones as well. Those questions should now be resolved in Mexico as well, employing in the analysis the principles of comparative law and its use of doctrinal and jurisprudential references, but also —and it could not be otherwise— considering the context in which the norm will be applied: its position within the entire Mexican legal order, of course, but also the prevailing morality, the "social consciousness", current medical standards, and so on.
This article will raise only a few of the questions that must be answered: for example what does it mean that the request must be "express?". Should a signed writing be required, or is an oral manifestation sufficient? What should be the content of this expression, be it written or verbal? What value should be given to a living will, an instrument that has not been widely utilized in our country? When should it be understood that the request is made "freely?". Is this latter a question of objective, as well as subjective; freedom —in other words, does it require complete autonomy in the face of the pressures or influences that may arise from the subject’s feelings, beliefs, religion, and other such personal factors which can and do often weigh heavily upon our decisions?—. Should it be necessary that the person making the request demonstrate that he is free from any influence whatsoever, apart from his own will? What factors would impede —if not entirely prevent— an ordinary man from achieving this kind of freedom?
More questions: When can it be said that a request is "reiterated?". Can repetition in this context include a one-time insistence —for example in the case that the petitioner is unable to insist further or does not believe it necessary to do so— or are further requests necessary? In what way will the silence of the sick person —which may often be prolonged— be interpreted in relation to the request they have previously formulated? What will be the significance of the petitioner’s physical or mental inability to keep insisting on the request, once it has been clearly formulated? What is the meaning of the requirement that the request be "serious?". Is it enough that it does not appear, on its face, to be frivolous? What are the objective characteristics of a "serious" request for death? Will it be necessary to establish the seriousness of the request through a careful examination of the petitioner, or of the information he has provided on his path towards death? In the process of dying, which may pass through various phases119 —some of them characterized by depression that make the patient long for an immediate death— wouldn’t it be possible for the patient himself, as well as doctors and family members, to be misled about what he really wants?
Does the requirement that there be an unequivocal request relate to the form of expressing it, and to the understanding that the receiver and possible executioner of the death would understand from that type of expression? Is it possible that the unequivocal character of the request may arise from the characteristics of the petitioner himself: his style, his particular form of communicating desires and ideas? How can it be effectively demonstrated that a particular actor is motivated by the humanitarian motives which lend the act its moral —which would be lacking in another case— be demonstrated effectively? What can be considered an incurable illness: that which is definitively incurable or that which is only incurable given the type of care available? How does the criminal law’s conception of euthanasia deal with the case where the patient is in a permanent vegetative state, and who, in the opinion of modern medical science, has no possibility of regaining consciousness?
There are many questions, and even more may arise. Nevertheless, we must pose them and respond to them promptly and unequivocally, now that the new regulations are being applied. It is important to pose such questions and necessary to answer them because this is a novel issue, rife with problems and dangers. Even the staunchest supporters of euthanasia would never wish for the legal system to approach such an issue lightly or carelessly. That approach would not only lead to confusion, vagueness, and uncertainty —with the stakes being nothing less than a human life— it might even allow for the commission of true homicides, including premeditated ones, carried out for motives of jealousy or ambition, whose perpetrators would benefit from the merciful treatment accorded to euthanasia.
On the other hand, these definitions in the criminal law probably clear the way for even more moderate treatment of euthanasia in the future. As such, it is important that there be clarity and certainty in the guidelines we establish; otherwise, they are likely to provoke a negative reaction, which itself will only lead the advances effected to be reversed. To start with, before arriving at the legal pardon that Jiménez de Asúa proposed, our criminal system could provide alternatives to incarceration for perpetrators of euthanasia —such as probation, house arrest, community service, or payment of a fine—120 from which the judge could select the appropriate punishment, preferring the alternatives to incarceration, and basing the decision upon the culpability of the perpetrator, and on the consideration of general and specific deterrence.121 This last point —a consideration prudent for the legislator but perhaps imprudent for a judge—122 could prevent —or not— the decision to select an alternative form of punishment.
It should be noted that the definition of euthanasia —even it is not called by that specific name— as a type of homicide, to which a certain punishment is applicable, allows for the resolution of certain cases which, in the absence of this legal definition, would only be analyzed according to the general rules, and where applicable, under the rules regarding commission by omission or improper omission.
Legal theory generally differentiates between the suspension of treatment to an incurable patient, that which only prolongs life and suffering, and the direct infliction of death. The latter case presents a host of problems, questions, and legal implications, while the former does not: that is, passive euthanasia raises fewer objections than the active variety. It is one thing to kill, it seems, and another thing to allow someone to die; nevertheless, these concepts should not be oversimplified. After all, it is also one thing to kill someone or allow them to die when one is obligated to preserve their life, and quite another thing to do so when such an obligation does not exist.
At this point, we should recall the words the law uses in reference to the concept of commission by omission or improper omission. With regard to strict liability crimes —of which homicide is obviously one— "the result (death in the case of homicide) will be attributable to the actor if, having a legal duty to prevent it, he fails to do so". In addition to other elements that must be considered in order to decide whether a person may be liable for improper omission, the person must be acting as a "legal guardian" —either by virtue of expressly assuming that responsibility, or by virtue of exercising de facto control over the life, health, or treatment of a family member or ward (article 16 of the Federal District Penal Code)—.
In my opinion, the General Health Law has not adequately resolved —or in any case has left in a state of uncertainty— the issues related to removing patients who are in a permanent vegetative state from life support mechanisms.123 According to the law, only certain members of the patient’s family are authorized to make the decision to remove life support mechanisms, while doctors and other people who may be responsible for the patient’s care are not. Is the patient not dead —in the true sense of the word— once he has been declared brain dead? And if there are no family members authorized by the law to make the decision to terminate life support, what result?
1. General considerations
If euthanasia raises serious issues, the ones raised by abortion are no less complicated. Abortion is "killing of the product of conception at any time during pregnancy", according to the definition provided by Article 144 of the Federal District Penal Code. Death, then, of spes vitae, spes personae or spes hominis. The criminal law, then, protects life in the womb —although in the past it was also thought to protect other, more transcendental interests: the interests of society and the nation, and the development of the collective consciousness—.124 This latter point creates even greater difficulties for the legal-criminal analysis of abortion and its corresponding punishment.
The issue of abortion has occupied legal scholars for quite some time, forced upon them, as it were, by its undeniable reality.125 Francisco González de la Vega described the practice as feticide. Today we could not call it as such because such a definition would not include —as does the text of the General Heath Law (article 314, part VIII)— the killing of an embryo, or other words, of the product of conception from its appearance until the twentieth week of pregnancy.
One essayist writing around the middle of the century summarized the issue as follows: "The modern Western legislator must realize that abortion is a social phenomenon of great importance in every country, and that the only alternative is to come up with some legal solution, or allow the practice to continue in secrecy".126
The characteristics of the issue and the intense debate surrounding it, the latter fed by political, social, moral, religious, economic —and of course, legal— concerns, have resulted in an unusually broad panorama of abortion regulations: while classic crimes against the person-homicide, murder, assault—"share a similar definition and treatment in almost all positivist legal regimes… abortion is dealt with differently in almost every country in the world, presenting a range of contrasts without parallel in any other type of human conduct".127 The laws in Mexico, for their part, provide a similarly broad panorama.
The study of suicide and euthanasia causes us to ask ourselves if it is right to force life upon someone who does not want it, or to whom it causes agony: in other words, if life, in addition to be being a right, is also an inexorable obligation. In the case of abortion we must rephrase the question and ask ourselves if it is just to impose the life of another upon a woman who does not want it, or when it has come into being as a result of rape.
Is motherhood an obligation —even when it occurs in adverse circumstances, which make it unwanted, and when, as a result, it causes the woman suffering? Does a woman have unlimited control over her own body, or is this control limited by other principles, which take precedence over her will and define, in so doing, her future? How should we approach a woman’s decision to terminate a pregnancy: should we put the means at her disposal in order that she may do so with the least possible risk to her health? Or should we deny her this possibility and thereby encourage recourse to clandestine procedures which are often fraudulent, unsanitary, and clumsily executed; procedures which necessarily violate the law and force pregnant women to place themselves in grave danger —particularly those who are economically underprivileged, as the vast majority who seek abortions are— in order to receive medical treatment, either in their own country or in another?
In analyzing the issue, many people divine legal effects from biology: the process of pregnancy occurs in the body of the woman and is part of her own vital processes; given that she has the right to do as she wishes with her own body —which provides a home to the unborn child— she can, therefore, make her own decisions about how to manage the pregnancy. In this line, at the end of the 19th century, Victor Margueritte published a novel in France at the end of the 19th century eloquently entitled Ton Corps Est á Toi. "Your body is yours, woman. You are the master of your own body".128 Nevertheless, the opposite school of thought challenges the woman’s power and freedom: your body belongs to you, yes, but inside of it there is another body with its own life, which you cannot dispose of. In the end, the idea that the product of conception is a living being, and furthermore, a person, presents a major obstacle to the notion of woman’s autonomy over her body during pregnancy.129
In order to establish limits and put an end to the disputes, some scholars —like Pérez-Tamayo— have managed to distinguish between abortion as a moral issue, subject to the jury of the conscience, and the legal treatment of women who terminate their pregnancies; in other words, the state’s conduct —in laws, rules, judges, health care facilities— towards these women, whose choices and destinies depend upon the attitude that the a state assumes.130 To put it another way, the issues that arise from the moral dilemma should be resolved by each person as an individual. With regard to the other issues, they present the following question, articulated by Villoro: "In the face of an issue about which there is no consensus, and which is the object of divergent moral judgments, does the state have the right, or the obligation, to impose laws and sanctions that correspond to one particular view of the issue? What is being litigated is not whether abortion is morally right or wrong, but whether it should or should not be punished by the state".131
In the troubled course of the latter issue’s development, the law has considered suggestions —which continue to be more important and more seriously discussed— that abortion be decriminalized. Although not altogether free from argument, the least controversial abortions are, on the one hand, those due simply to the pregnant woman’s carelessness, or her "fault", and on the other, those which are carried out for medical reasons, for example in an attempt to save the mother’s life. The latter presents a situation that illustrates perfectly the idea of justifiable necessity —although abortions that present a danger to the mother’s health, and not just her life, have also now been decriminalized. The difficult experience of the First World War and the unified —and probably outraged— response of many tribunals, led to the abolition of punishment for abortion when the pregnancy was the result of rape: women who had terminated such unwanted wartime pregnancies were absolved and, in some cases, judges applied similar leniency to women who had committed infanticide for the same reasons.132 One may now use a similar legal argument against punishment in the case of another crime as well: that of illegal artificial insemination.
New problems arose as a result of eugenic abortion, which it has been suggested may be better called "embryopathy".133 This type of abortion is illustrated by the case of the Vendeput-Coipel family and the doctor Casters, who in 1962 agreed to carry out an abortion where the product of conception had suffered serious effects from the mother’s use of thalidomide. The jury in that case demonstrated a liberal and humanitarian sentiment.134 Much greater has been the resistance against abortion for socioeconomic reasons, because of the young age of the mother, and, most of all, against the woman’s right to choose freely within certain, not necessarily brief, periods.
We are far from unanimity, but modern legislation is advancing in such a way that, even among the controversies and complaints, the end seems to be in sight. In recent years there have been reforms regarding abortion in more than forty countries.135 Comparative law demonstrates that:
[As a result of] the growing and progressive evolution, during the entire 20th Century, towards the decriminalization of voluntary abortion, the great majority of the world’s population now lives in countries where abortion is not punished —a statistic which is almost absolute for those countries with higher levels of economic and democratic development, and greater protection of human rights.136
2. Mexican legislation
I mentioned earlier that the criminal law on abortion offers a panorama of diversity: there are no uniform solutions, although there are some growing tendencies. A similar phenomenon is occurring in Mexico: the various penal codes, initially inspired by the rules governing the Federation and the Federal District, differ on the issue. Mexican federalism, which puts the criminal law in the hands of the states, has resulted in this variety of rules, which certainly does not contribute to the establishment of an effective criminal law.137
The issue of abortion, which is often analyzed from an equal rights perspective,138 has been the subject of study in both academic and political forums. In such forums, it is often suggested that the best response is to address the issue directly and look for reasonable solutions.139 It has been written that "in Mexico the decriminalization of abortion continues to be the demand that no party will raise, and one of the issues that no one wants to publicly debate".140 Nevertheless, things have changed over the course of the last couple of decades. It has been a long time, it’s true, but it has not been uneventful. Quite a long time ago, the regulation of abortion was discussed with great attention in the code, which, at that time, governed the Federation and Federal District. The debate reappeared in 1983, when the progressive bill of the same year —progressive in many ways, not just with regard to the issue examined here— attempted to move the issue a few steps forward. And the controversy raged again when the state of Chiapas approved, in 1990, a reform to Article 136 of its penal code. The reform included forms of decriminalization and abolition of punishment for abortion, some of which were known in Mexico, and some of which were not.
The intense reaction that the Chiapas reform attempt produced resulted in its indefinite suspension.141 The topic returned to the fore when the Congress of Guanajuato thought it wise to eliminate the classification of honoris causa abortion, which refers to an abortion committed by a woman in order to hide the fact that she has become pregnant out of wedlock. In addition, the Congress considered abolishing punishment for abortion motivated by rape, if the woman "had previously presented the corresponding complaint, and if experts from the Attorney General’s office issue a medical certificate". Support for the measure was not solid, and the Congress ended up returning to the formulations used in the previous code.142
The uproar in Guanajuato had an interesting byproduct: it sparked the reform process in the Federal District that would culminate, in 2000, with the reforms popularly known as "Robles Law" —although they did not constitute a new law, but were instead composed of modifications to the penal code and criminal procedure code—. These reforms were incorporated into the new Criminal Code of 2003, whose Article 334 abolishes the punishment of abortion when the pregnancy is due to rape or fraudulent insemination, when it presents a risk of serious danger to the mother’s health, or when there is a medical report explaining that "genetic or congenital defects which could result in physical or mental harm and possibly endanger the life of the child, as long as the pregnant woman consents", and the abortion is carried out as a result of one of those factors. Article 131 of the Criminal Code gives the Attorney General the power to authorize, within a period of 24 hours, the termination of a pregnancy in situations of rape or illegal insemination.143
Things didn’t stop there. Eventually, the Supreme Court was called upon to declare the constitutionality of the reforms. According to the majority of the justices, the reform to the Criminal Code did not violate the Constitution. On the other hand, six of the justices —an absolute majority of the 11 total— sustained that the new text of the Code of Criminal Procedure was unconstitutional. As this did not represent the two-thirds majority —eight votes— that the Constitution requires in order to invalidate a law,144 the challenged reform remained in the Code.145 The public did not adequately understand the Supreme Court’s judgment, largely because information regarding it was ineffectively presented. The tribunal did not legalize abortion, nor did it guarantee the constitutionality of any law that did legalize abortion. Instead, it simply declared that the norm in question did not violate the supreme law of the land. As a result of this legal-political issue, a complaint was presented against the Supreme Court to the Inter-American Commission of Human Rights and another complaint, which was manifestly frivolous and was eventually found to be inadmissible, was presented before the Chamber of Deputies.
Around the end of 2003, the public found out about —or rather rediscovered— the case of a thirteen-year-old girl, Paulina Ramírez-Jacinto, who had become pregnant as a result of rape, and who was denied an abortion by authorities and doctors in Baja California. Various non-governmental organizations considered that this denial violated the rights of the victim and they complained to the Inter-American Commission of Human Rights.146 Also toward the end of 2003, deputies of the PRI (Partido Revolucionario Institucional) to the Legislative Assembly of the Federal District suggested a wider abolishment of punishment for abortion. Of course, the suggestion immediately provoked unfavorable reactions.
X. "ARBITRARY" DEATHS: ANARCHY AND TYRANNY
Bedenheimer positions law, the guardian of life, in the crossroads that lead to anarchy, on the one hand, and despotism, on the other.147 In his view, the law provides a peaceful alternative to the dangers of those other two systems. Nevertheless, anarchy and despotism survive and triumph; they do so by destroying the supremacy of law, when they assume control over the disposition of life and apply the death penalty on their own terms.
Extrajudicial killing applied as punishment —or as a deterrent for those who observe and internalize its application— is an element of criminal justice. Responsibility for the execution of the deadly act is claimed by two entities, which struggle with each other for power over it: society and formal authority. Constitutions are devoted both to assuring that citizens have access to public justice, and to preventing them from exercising their own private justice. Nevertheless, the reality often reflects the opposite pattern: the population of Fuente Ovejuna, motivated by a profound feeling of social consciousness, reclaimed their right to justifiable violence and executed their commander. They were not rebelling against the king, or against the law; instead, they assumed the role of avenging angels whose animating force was desperation. When the public officials and the army entered the houses of Fernán Gómez de Guzmán, their proclamation was unmistakable: "Long live King Fernando and Queen Isabel, and death to all traitors and false Christians!".148 It was to this cry that the commander died. The identity of the author of the murder —or of the act of justice— was very clear: "Fuente Ovejuna did it"; "Fuente Ovejuna, sir".
The masses can assume a tremendous force when they take justice into their own hands. One can remember the Massacres of September, which took place in Paris on August 10, 1792. Armed forces took control of the jails, set up popular tribunals and executed more than a thousand prisoners: from political prisoners and priests to thieves, prostitutes, forgerers and tramps. One historian states: "It was a mysterious occurrence that defies a precise analysis; nevertheless, it seems to have been the product of panic engendered by the threat of counterrevolution and invasion".149 Whatever caused this "mysterious occurrence", it reincarnated the practice of extrajudicial execution. We should not forget, of course, where the exalted people learned these lessons in violence, which they carried out with such enthusiasm. In response to Burke’s criticism of the events in France, Thomas Paine recalled that the citizens learned this violence "from the governments under which they had lived, and they also remembered the pleas that they had been accustomed to make".150
But the zeal of women, men, and children can also have —and often does have— another source and another destiny: the group revokes the legal order and kills blindly and impetuously. The law of lynching is the monument to this kind of abolition of justice. Taking advantage of the impulse for revenge, and sometimes for violent justice, that many human beings carry inside, almost any pretext will suffice to set it in motion. The law of lynching has no boundaries, although it does have vernacular forms. These "judgments" have fallen upon minorities, dissenters, and enemies, as well those who someone simply supposed to be enemies during a rash moment.
Mexican history provides many examples of this popular anger, be it righteous or vengeful. The first one is found in the story of the professor who was captured during the Cristera War and "surrounded by hatred and stones. They pelted him from all sides, without the least system or order, as spontaneous hatred flowed out of them".151 Also among the memories of atrocity stand the violent events of San Miguel Canoa, which took place on the slopes of the volcano Malinche on September 14, 1968. And there have been other lynchings carried out against delinquents that supposedly would have escaped from the inept, corrupt, or complacent hands of the authorities and the law. Monsiváis refers to the saying of a wronged man who derives satisfaction from vigilantism: "We respect what the people decided… If the people decide that he should be lynched, then lynch him".152 Punishment by agreement of the people is what again occurred in San Juan de las Manzanas, where the people asked the authorities for "their blessing to punish the municipal president", who was "a bad person" and "who creates so much war that we cannot stand it anymore". When this permission was finally granted, the spokesman of the people stated: "thank you very much for this authorization because, since no one seemed to be paying attention to us, the municipal president has been dead since yesterday".153 And in "modern" Mexico lynchings have continued to be carried out with unsettling frequency and even more unsettling impunity.
These are collective murders, we might say, but there is another related phenomenon, which also supplants the role of the legal system: that of murder by the public power. Machiavelli, who suggested to Lorenzo De’Medici that he avoid the hatred of his governors, also pointed out that in order for a prince to govern well, it "is much safer [for him] to be feared than loved, when, of the two, either must be dispensed with", and he remarked that "the usurper ought to examine closely into all those injuries which it is necessary for him to inflict, and to do them all at one stroke so as not to have to repeat them daily; and thus by not unsettling men he will be able to reassure them, and win them to himself by benefits".154 The crimes of authority are divided between violence and fraud. The latter involve corruption; the former often involve assassination, although there are other varieties such as torture, which has always functioned as one of the dark tools of authority.
There are various types of violations of the right to life, among which are those that Zaffaroni calls "announced deaths", borrowing the expression from García-Márquez. These are —according to the criminal practice in Argentina— the "deaths that, in large-scale and institutionalized form, lead to the violent functioning of the criminal system".155 State terrorism, one of the pathological expressions of unchecked authority, causes no less injury than its common counterpart. In fact, its wrongfulness runs even deeper in that it originates from the one responsible for —and this is certainly the essential function of the state— providing security and guaranteeing justice. Because this kind of crime makes use of the state apparatus, it should be considered as especially serious —a view that has been advocated in recent jurisprudence of the Inter-American Court of Human Rights,156 a tribunal which has heard numerous cases of violations of the right to life during its twenty year existence. Such misuse of authority has cost the lives of millions of victims throughout the world and throughout history, and always for the sake of "controlling the population through intimidation".157
XI. DEATH AS "PUNISHMENT"
The criminal system is concerned with the protection of property, which is its purpose, and the means of effecting that protection, which are its tools. This article discusses the latter concern, specifically in the form of the death penalty. This phenomenon has persevered and even multiplied in form, largely owing to its deep religious roots. The Old Testament states: "He that smiteth a man, so that he dies, shall be surely put to death... And if a man come presumptuously upon his neighbour, to slay him with guile; thou shalt take him from mine altar, that he may die. He that smiteth his father, or his mother, shall be surely put to death. He that stealeth a man… shall surely be put to death. And he that curseth his father, or his mother, shall surely be put to death".158 And the Q’uran maintains: "We prescribed for them therein: The life for the life, and the eye for the eye, and the nose for the nose, and the ear for the ear, and the tooth for the tooth, and for wounds, retaliation. A free man is to be killed if a free man was murdered —a slave for a slave and a female for a female—".159
Considerations of fairness and deterrent value are often offered in favor of capital punishment. These are obvious arguments: it is clear that the punished will not commit more crimes. On the hand, the arguments employed against capital punishment are ethical —the State cannot dispose of the life of its citizens; legal-political— the social pact does not include the taking of life; criminological —the crime of the State gives rise to the crimes of individuals—; and practical —capital punishment has never effected any decrease in crime whatsoever—.
In the end, the death penalty is a crucial legal issue. As stated by the lawyer Antonio Beristáin: we are facing a "radical phenomenon" within the criminal justice system; whomever allows this type of punishment "puts a drop of poison in the glass that contains the values of a peaceful society;" which "then spreads throughout all the liquid".160 The debate over capital punishment —which began as a selection of crimes, and of the punishment’s objectives— quickly had to confront this problem, which has become one of its most passionate and characteristic chapters. The topic of the death penalty is always fashionable. Did we not see it rekindled just a few months ago, with reckless irresponsibility, during the State of Mexico’s electoral process?
At one time, the death penalty was uncontroversial, and its application had two universal characteristics: it was widespread and cruel. It was handed out with enthusiasm: in many different forms and for an enormous number of infractions, from assassination to letter-tampering, not to mention simply because of the "bad mood" of the authority, which could only be placated by the death of whomever had provoked it (it is not for nothing that the ruler has been defined as "the master of life and property", and "the lord of the gallows and the knife"). Cruel and unusual punishment, as it is called, had a characteristic profile: besides torturing the body it is meant to offend the conscience; it is irreparable, immoral, degrading, defamatory, unequal, transcendent, and arbitrary.161
In this terrible landscape, the guillotine was a blessing devised by the genius of a philanthropist: the doctor and representative Guillotin assured the Constitutional Assembly in his brilliant speech on January 1, 1789, that "with my machine, I will sever your head in the blink of an eye, and you will suffer no pain".162 When Victor Hugo wrote about the revolution of ’93, he compared the hulk of the old prison La Tourge with the new monster, the guillotine, which was being installed close by: "La Tourge was the monarchy; the guillotine is the revolution. What a tragic confrontation… On one hand, the rope; on the other, the axe".163 Once the machine was functioning, it might happen that "an immense shower of light would flow from the neck of the condemned".164
Furthermore, the punishment was often flagrant: in the open air and in obvious places; where everyone could observe the killing and learn a lesson from it; in the public square, and with great fanfare. Punishment as a spectacle has been practiced throughout history, although it has not always followed the same pattern. Bentham asked himself what a public execution was; and he answered without a doubt: "It is a solemn tragedy that the legislator presents to the assembled public".165 It would be difficult to find a more clear and concise description of the nature of public punishment.
The death penalty, with or without legal judgment —or under the judgment of a sovereign that had already sealed the fate of the accused beforehand— resolved many problems in the ruling houses, including disputes for the throne and differences that could not be worked out peacefully or in any other civilized manner. The stories of many of the most revered monarchs are stained with blood —they navigated through its flow, provoking, intensifying, or exhausting it. And they led, eventually, to peace for the kingdom and the monarch who ruled it with an iron fist. Alone in her chambers, Queen Elizabeth of England, pondered the death of Mary Stuart, whom she called: "A threatening fiend, before me evermore", and "and infernal viper". "The hated name of every ill I feel is Mary Stuart". "Oh, no! This fear must end. Her head must fall! I will have peace".166 And, in effect, she would enjoy peace only when the head of Mary Stuart fell: condition sine qua non. The punishment was extreme because it was also a "ritual manifestation of her infinite power to punish". Because of this power, the punishment could transcend life and descend upon the body of the condemned, making itself manifest in the corpse.167
In the light of modern times, several events arose which encouraged abolition of the death penalty. First, the law in France found the Huegenot Jean Calas guilty of homicide for the alleged murder of his son, Marc-Antoine, who had converted to Catholicism. Jean Calas was tortured and executed. Afterwards, it was discovered that he had been innocent.168 This engendered protest from Voltaire, who became known as the "defender of Calas", and attracted the attention of all of Europe. Then, in 1764, the most important work of criminal literature in history —On Crime and Punishment, by the Marquis Cesare Bonesana— was published in Milan. Evocative, revolutionary, and furthermore, successful, Bonesana undertook his study of capital punishment with the spirit of a crusader: it is not right, it is not useful, and it is not necessary.169
Every manifestation of justice has its set, its characters, and its parliaments. Death is no exception. Set: the gallows and the scaffold —which centuries later was hidden between the walls of the prisons—. And characters: the executioners. These include the families, lines of executioners, who passed the office from generation to generation. And the executioner of Lagerkvist —"enormous and impressive, with his blood colored clothing"— who announced to those observing him amidst "a silence so profound that you could hear the whisper of their breathing": "I have been carrying out my work since the beginning of time and the end has not come yet… I am the one who remains, while all the rest come to their ends".170 There have also been very skillful executioners: Quevedo assured that Alonso Ramplón, the executioner of Segovia, was "an eagle in his office", "to such an extent that watching him perform, it made one desire to let him hang them".171
Now we arrive at our own times. In 2001 there were at least 4,700 executions carried out in the world. The countries that executed the most people, in descending order by the number of executions, were: China, Iran, Iraq, Tajikistan, Vietnam, Saudi Arabia, Yemen, Afghanistan, and the United States of America.172 Context is relevant to an understanding of why certain countries maintain the death penalty, whether they carry out a large number of executions, whether they represent an exception —a macabre exception for certain— in the Western legal order, or whether it be for the punishment’s religious roots, which present a great obstacle for abolitionist trends.
China offers one example —and what an example it is— of the first hypothesis: capital punishment applied generously and diligently. The statistics demonstrate that China carries out more executions than all other countries in the world combined. In 1999 there were 1,769 executions; in 2001 there were more than 3,500, which represented 74% of the world total.173 Various countries of the Anglophone Caribbean are also examples of this phenomenon. The abolitionism that has now triumphed in Great Britain after a long history of capital punishment has not been adopted in this common law region. Nevertheless, the winds of change are stirring, brought on by the jurisprudence of the Inter-American Court of Human Rights174 and the Privy Council of Great Britain.175
The death penalty possesses deep roots in the Islamic faith. The Arab nations’ devotion to the punishment —founded in a rigorous adherence to, and interpretation of, their ancient religious texts—176 has been made clear in international forums, as well as in the recent debate surrounding the punishment applicable to the most severe international crimes, which took place during the adoption of the Statute of the International Criminal Court in Rome, in 1998.177 The forms of execution in those countries still include stoning, as was observed with shock by the international community in the case of Amina Lawal, who was saved from death at the last moment by a judicial decision.178
Nevertheless, the executions in China have not attained the visibility, nor attracted the attention of the international community, as have those in the United States of America, now the most notable exception in the West. The European nations, all of which are abolitionist, question America’s democracy to the extent that the country still maintains the death penalty: "What about the United States of America —it’s a democracy and it still maintains the death penalty?".179 In that great nation, where supporters of the death penalty abound, the issue creates conflict between the currents of public opinion and legal theory, which is translated with varying degrees of success into a complex legislation and an ever-changing jurisprudence. The Supreme Court of the United States, the supreme interpreter of the Constitution, has left the issue unresolved.180 They have considered it from various perspectives, including whether it constitutes cruel and unusual punishment: they found that it did in Furman v. Georgia in 1972, but then overturned this decision in Gregg v. Georgia in 1976, deciding that it did not.
In various notable cases, the same tribunal has examined challenges to the death penalty brought on other grounds: for example, racial discrimination, trial by an impartial jury, and right to an adequate defense. Recently, the Court declared 111 challenged death penalty sentences to be unconstitutional on the grounds that they had been issued by judges, rather than by juries. The sentences had been rendered in five different states of the Union: Arizona, Colorado, Idaho, Montana, and Nebraska.181 In the end, 38 states in the American Union, plus the federal government, maintain the death penalty, while just 12 states and the District of Colombia have abolished it.
Of the various methods of execution employed, some have been devised to cause less suffering than others. Nevertheless, some executioners attempt to return to more traditional methods, which they see as natural. An unbelievable journalistic piece from 1997 revealed that there was a small defect in the old electric chair used in Florida’s Starke Prison, the chair that would be used for the execution of Pedro L. Medina. The defect caused a fire, which converted the electrocution into a medieval rite. Bob Butterworth, Florida’s state Attorney General, did not fail to comment aptly on the situation: "People who wish to commit murder better not do it in the state of Florida because we might have problems with our electric chair".182
In 1959, Austria, Ceylon, Ecuador, Sweden, Venezuela, and Uruguay supported direct consideration of the death penalty by the United Nations’ Economic and Social Council.183 This was the trumpet call announcing a progression that has continued forward until the present day. Along the way, the "Safeguards to Guarantee Protection of the Rights of those Condemned to Death" were drafted, along with rules for their implementation.
Today there are international treaties that aim to universalize abolition in a gradual, step-by-step process, rather than all at once. On a general level, there is a Second Protocol to the International Convention on Civil and Political Rights, issued in 1989, which aims to abolish the death penalty. On the regional level, there are two similar instruments: Protocol 6 to the European Convention of Human Rights and Fundamental Liberties, issued in 1989, and the Protocol to the American Convention on Human Rights, of 1990. According to the view of the Inter-American Court of Human Rights, expressed in an advisory opinion, Article 4 of the American Convention —which protects the right to life— "reveals an unmistakable tendency to limit the application of the death penalty, both in terms of its imposition and in terms of the mode of its application".184
According to information provided by Amnesty International, 75 countries have abolished the death penalty for all crimes; 13 have done so with respect to common crimes, conserving it only for very serious infractions; and 21 have stopped imposing the penalty in practice. The total has therefore risen to 108, in comparison with the 87 countries that still retain the penalty.185 The change has been fairly drastic —particularly since 1948, which marks a key date in international human rights law— although it has not been achieved without controversy. The same arguments which have stopped abolition for centuries continue to be brought up against it in modern times, leaving their mark upon its slow retreat.
In Mexico these anti-abolitionist sentiments have always been present. Our colonial era and our 19th Century were plagued by the liberal application of the death penalty. The issue of abolition was first raised during the drafting of the Constitution of 1857, as many of the liberal assembly members naturally objected to such a barbarous form of punishment. Although the drafters did not feel comfortable doing away with the scaffold immediately, given the precarious situation of the country, they provided for its future exchange: Article 23 of that Constitution provided for the establishment of a prison system, in order that the death penalty could be abolished "as quickly as possible".186 The time between the drafting of Article 23 and the establishment of a prison system turned out not to be brief. It was April 2, 1891 before Porfirio Díaz inaugurated the first prison in Puebla. The State’s Governor, remembering the words of the Constitution, abolished capital punishment on that very day, and the dictator directed his compliments to the official who had outlawed the "repugnant death penalty".187 Nevertheless, the peaceful sentiments of the founders were not so well-remembered a few years later when Díaz inaugurated the new prison in the Federal District. The death penalty was not abolished: the President thought it was best to retain it, just in case it might be needed.
That same "caution", if we choose to call it that, was demonstrated again in the Constitution of 1917. Article 23 authorizes —although it does not order— the imposition of capital punishment for certain serious crimes. Recently, it was decided that the death penalty would be removed from the text of the Constitution, a plan that is being carried out by the Secretary of Governance.188 It remains to be seen what will happen. In any case, we have arrived at a state of de facto abolition, which is supported by de jure abolition in our legislation. The penalty has been excluded from the Federal Code and the Code of the Federal District since 1929. Since then, the states have outlawed it as well: Sonora, which was the last to retain it, abolished it in 1975. The last execution under the Code of Military Justice, which still provides for the penalty, was carried out in 1962. Since then, every time the death penalty has been imposed on a member of the armed forces it has been commuted to a prison sentence.189
There are, nevertheless, different opinions regarding the legal effects of such changes. There are two points of view. The most generous maintains that capital punishment has been wiped out of the Mexican legal order, and that the legislator can no longer reestablish it in secondary legislation. Such a reestablishment, it is claimed, would violate Mexico’s obligations under the American Convention on Human Rights, as well as under its own fundamental law.190 On the other hand, it is argued —incorrectly so, I hope— that Mexico has not totally abolished capital punishment. In order for that to occur, according to that perspective, a Constitutional amendment would be necessary.
* Translated by Ingrid Berlanga Vasile. Technical revision: Kassi Tallent.
** President of the Inter American Court of Human Rights and Researcher at the Legal Research Institute.
1 Cfr. Beuchot, Mauricio, "Reflexiones filosóficas sobre el derecho a la vida, el aborto y el proceso inicial de la vida humana", in Valdés, Margarita M. (comp.), Controversias sobre el aborto, México, Fondo de Cultura Económica-UNAM, Instituto de Investigaciones Filosóficas, 2001, pp. 110 and 111.
2 Cfr. Niño, Luis Fernando, Eutanasia. Morir con dignidad. Consecuencias jurídico-penales, Buenos Aires, Universidad, 1994, p. 69.
3 Pérez Tamayo, Ruy, Ética médica laica, Mexico, El Colegio Nacional-Fondo de Cultura Económica, 2002, pp. 177 and 178.
4 Embryo —the General Health Law "establishes"— "is the product of conception since it happen and until the end of the twelfth week of gestation" (article 314, clause VIII), and foetus —"states" the same law—, the "product of conception from the thirteenth week of gestation, until the expulsion from the mother’s womb" (clause IX).
5 Brain death presents when the following signs appear: I. Permanent and irreversible loss of conscience and of response to sensorial stimulus; II. Absence of breathing automation; and III. Evidence of irreversible damage of the brain stem, reflected in lack of reflex of the pupils, absence of eye movements in vestibular tests and absence of responses to stimulus nociceptives". It is precise to discard these signs being product of intoxication and they shall be corroborated through determined tests (article 343 of the General Health Law, which I will also refer to as GHL).
6 Cfr. Marlasca, Antonio, Introducción a la bioética, Heredia (Costa Rica), Universidad Nacional, 2001, p. 229.
7 According to clause II of article 343, GHL: complete and permanent absence of conscience, permanent absence of spontaneous breath, absence of reflexes of the brain stem and irreversible heart stroke.
8 "The corpses cannot be object of property and shall always be treated with respect, dignity, and consideration" (article 346, GHL).
9 The thirteenth title of the second book of the Criminal Code of Mexico City, which covers only one chapter and is composed by two articles, is called —regarding the legally protected interests at the custody of the corresponding criminal types—: "Crimes against the burial and exhumation norms and against the respect to human corpses or remains".
10 The first paragraph of article 343, GHL, mentioned in some of the previous notes, states: "To the purposes of this Title, the loss of life takes place when:..." (emphasis added). The "Title" of reference is called "Donation, transplants and loss of life", and contains five chapters: I. "Common stipulations"; II. "Donation"; III. "Transplants"; IV. "Loss of life", and V. "Corpses".
11 About this point, I refer to the study I carry out in my book La responsabilidad penal del médico, Mexico, Porrúa, pp. 41 ff.
12 Claus Roxin notices that "even when the principles of the General Council of Medical Colleges (frequently invoked by the German essayist) do not have legal efficience neither they reach the practical meaning of the sentences of the tribunals, they have rose intense discussions that, in the practice, naturally affect also and especially the new jurisprudence". Roxin, Claus, "Tratamiento jurídico-penal de la eutanasia", in id. et al., Eutanasia y suicidio. Cuestiones dogmáticas y de política criminal, Granada, Comares, 2001, p. 21.
13 De Chardin, Teilhard, El fenómeno humano, translated by M. Crusafont Pairó, Barcelona, Orbis, 1984, p. 43.
14 Manzini, Tratado de derecho procesal penal, translated by Santiago Sentís Melendo and Marino Ayerra Redín, Buenos Aires, Bookstore El Foro, vol. II, pp. 394 and 395.
15 Cfr. ibidem, p. 397.
16 In this document, from the 4th of July, 1776, the following statement is included: "We sustain these truths, themselves, for being evident: that every man is born equal; that their Creator granted them certain inalienable rights, among which is life, freedom and the quest of happiness".
17 Häberle, Peter, El Estado constitucional, translated by Héctor Fix-Fierro, Mexico, UNAM, Instituto de Investigaciones Jurídicas, 2001, p. 115.
18 Gutiérrez Nájera, Manuel, "Non omnis moriar", in various authors, Esta triste claridad a ciegas. Miradas hacia la muerte en la poesía hispánica, Mexico, UNAM, Cultural Difussion Department, 2003, p. 333.
19 Cfr. http://www.aciprensa.com/noticia.php?s=2&n=1182.
20 Irving, Washington, Rip Van Winkle, translation by Carmen Bravo-Villasante, Barcelona, Hesperus, 1987, pp. 29, 69-70 and 99.
21 Article 168 of the Criminal Code of Mexico City typifies forced disappearance of people. Mexico is Party of the Inter American Convention on Forced Disappearance of People, from June 9, 1994.
22 The eleventh title of the first book of the Civil Code is called "About the absentees and ignored". Contains several chapters: I. "About the provisional measures in case of absence"; II. "About the declaration of absence"; III. "About the effects of the declaration of absence"; IV. "about the administration of the goods of the married absentee"; V. "About the presumption of death of the absentee"; VI. "About the effects of absence on the eventual goods of the absentee", and VII. "General considerations".
23 Irving, Washington, op. cit., note 20, p. 32.
24 Cfr. Ariès, Philippe, El hombre ante la muerte, translated by Mauro Armiño, Madrid, Taurus, 1999, pp. 161 ff.
25 Tolstoi, Leon, "La muerte de Iván Ilich", Cuentos escogidos, 3a. ed., Mexico, Porrúa, 1979, p. 83.
26 Argüelles, Hugo, "Los cuervos están de luto", Primer acto, Teatro vario, Mexico, Fondo de Cultura Económica, 1995, vol. I, pp. 25 and 33.
27 Cfr. Ripert, Georges, El régimen democrático y el derecho civil moderno, translated by José Ma. Cajica Jr., Puebla, José M. Cajica Jr., 1951, p. 87.
28 The common land holder may designate a successor in his rights on the parcel and others derived from that quality, through a "list of succession" in which he indicates "the names of the people and the order of preference according to which the adjudication of rights is made when he dies" (article 17 of the Agrarian Law). The same limitation in favor of one single heritor is applied in case the common landholder did not name successors and a regime of legal succession shall work (article 18). The characteristics of the system are kept in this disposition of the same article 18: when there are two or more people with the right to inherit, "they shall enjoy of three months since the land holder’s death in order to decide who, among them, shall keep the land holding’s rights".
29 Alighieri, Dante, La divina comedia, 13th ed., Mexico, Porrúa, 1981, Hell, Eleventh chant, p. 26.
30 Quintano Ripollés, Antonio, La criminología en la literatura universal. Ensayo de propedéutica biológico-criminal sobre fuentes literarias, Barcelona, Bosch, 1951, p. 85.
31 Cfr. Alcalá-Zamora and Castillo, Estampas procesales de la literatura española, Buenos Aires, Ediciones Jurídicas Europa-América, 1961. The Spanish master —or even better, to me, Mexican-hispanic— warns, however, about the need to "overdo the critical precautions" when it is intended to examine the Law through the literature, and to examine the literature works as "Sherlock Holmes, with a lantern and lens". Alcalá-Zamora y Castillo, op. cit., in this note, p. 31.
32 Quincey, Thomas de, Del asesinato considerado como una de las bellas artes, translated by Cristina Iborra Mateo, Valencia, España, Océano, 1999, p. 26.
33 Ibidem, pp. 59 and 89.
34 Neuman, Elías, Los que viven del delito y los otros (la delincuencia como industria), Mexico, Siglo XXI, 1991.
35 Cfr. Garófalo, Rafael, La criminología, translated by Pedro Borrajo, Madrid, Daniel Jorro Editor, 1912, pp. 9 and 37.
36 Jiménez Huerta, Mariano, Derecho penal mexicano, 2a. ed., Mexico, Porrúa, 1971, pp. 15 and 16.
37 Cfr. Islas de González Mariscal, Olga, "Valores éticos tutelados por el derecho penal mexicano", en García Ramírez, Sergio (coord.), Los valores en el derecho mexicano. Una aproximación, Mexico, Fondo de Cultura Económica-Universidad Nacional Autónoma de México, Instituto de Investigaciones Jurídicas, 1997, p. 203.
38 In the previous 1931 Criminal Code of the Federation and Mexico City, and the Federal Criminal Code in force, which is that same one, with some modifications in order to grant it with legal effect only in the federal scope (besides, of course, the numerous reforms implemented between 1931 and 1999), the list of crimes contained in the second book begins with the "Crimes against the nation’s security" (first title). The "Crimes against life and physical integrity" are found at a long distance: nineteenth title. On the other hand, the second book of the Criminal Code of Mexico City in force, begins with "Crimes against life and physical integrity" (first title).
39 When referring to homicide, the federal Criminal Code, which follows the Mexican 20th century legislative tradition, points out that an injury would be considered fatal (and indeed, under circumstances such as homicide), when "death is due by alterations caused by the injury in the respective organ or organs, by some of their consequences, and that could not be fought against, either because it is incurable, or because of not having access to the necessary remedies" (article 303.1). The Criminal Code in force in Mexico City states that "an injury would be fatal when death is due because of the alterations caused by the injury in the respective organ or organs, by one of its immediate consequences or by a complication certainly caused by the injury itself" (article 124).
40 Dostoiewsky, Fedor M., Crimen y castigo, 6th ed., Mexico, Porrúa, 1979, pp. 41-42, 46 and 50.
41 Shakespeare, William, La tragedia de Macbeth (act V, scene I), translated by Ma. Enriqueta González Padilla and Erica Fischer Dorantes, Mexico, UNAM, Coordinación de Humanidades, 1999, p. 233.
42 Quincey, Thomas de, op. cit., note 32, p. 31.
43 Genesis, 4, 1-8.
44 Leopold, Nathan Freudenthal, Prisión perpetua y 99 años más, prol. of Erle Stanley Gardner, p. 15.
45 Hentig, Hans von, La pena. Las formas modernas de aparición, 1968, vol. II, p. 149.
46 Cfr. Glueck, Sheldon, Criminales de guerra. Su proceso y castigo, translated by Carlos Liacho, Buenos Aires, Anaquel, 1946, pp. 115 and 116.
47 Cfr. Quiroz Cuarón, Alfonso y Máynez Puente, Samuel, Psicoanálisis del magnicidio, Mexico, Jurídica Mexicana, 1965, pp. 127 ff.
48 Cfr. the review of these magnicidios in idem and in Marín Cañas, Francisco, Los asesinatos políticos. Desde Lincoln hasta Kennedy, Mexico, Novaro, 1965.
49 Quincey, op. cit., note 32, pp. 36 and 37.
50 Cfr. Ochoa, Gerardo, "Contra la delincuencia juvenil, prevención general", in Barros Leal, César (coord.), Violencia, política criminal y seguridad pública, Mexico, Instituto Nacional de Ciencias Penales, 2003, p. 194. This author points out that the numbers he presents in his work —apparently from 1998— were taken from Ruiz Harrel, Rafael, Criminalidad y mal gobierno, Mexico, Sansores & Aliure, 1998.
51 Cfr. http://www.pgjdf.gob.mx/estadisticas/index.asp.
52 Cfr. Instituto Ciudadano de Estudios sobre la Inseguridad, A. C., Segunda encuesta nacional sobre inseguridad en las entidades federativas. Resultados, First semester 2002 (January-June) and Gaceta informativa 7, http://www.icesi.org.mx.
53 Speckman Guerra, Elisa, Crimen y castigo. Legislación penal, interpretaciones de la criminalidad y administración de justicia (ciudad de México 1872-1910), Mexico, El Colegio de México-UNAM, Instituto de Investigaciones Históricas, 2002, p. 183.
54 Cfr. Comisión Nacional de los Derechos Humanos, Informe preliminar de acciones realizadas en el caso de feminicidios en el municipio de Ciudad Juárez, Chihuahua, 7 de abril de 2003 (in the Informe especial de la Comisión Nacional de los Derechos Humanos sobre los casos de homicidios y desapariciones de mujeres en el municipio de Juárez, Chihuahua, presented in November 2003, 263 homicides were reported and the number of "reports of missing women": 4,568. Cfr. http://www.senado.gob.mx/content/sp/informes/chihuahua/), p. 1; Inter American Commission of Human Rights, Situation of Human Rights of the Women in Ciudad Juárez, Mexico, OAS/Ser. L/V/II.117 Doc. 44, General Secretary, Organization of American States, Washington, 2003, p. 13, paragraph 41, and the studies gathered in Álvarez de Lara, Rosa María (coord.), La memoria de las olvidadas: las mujeres asesinadas en Ciudad Juárez, Mexico, UNAM, Instituto de Investigaciones Jurídicas, 2003.
55 Cfr. López Bolado, Jorge D., Los homicidios calificados, Buenos Aires, Plus Ultra, 1975, pp. 17 y ss.; and Levene (h), Ricardo, El delito de homicidio, Buenos Aires, Depalma, 1977, pp. 173 ff.
56 Guzmán, Martín Luis, "La fiesta de las balas", in several authors, Cuentos de la revolución, Mexico, UNAM, Coordinación de Humanidades, 1987, pp. 36 and 37.
57 Poe, Edgar Allan, "Aventuras de Arthur Gordon Pym", Obras completas, translated by Carlos Olvera et al., Buenos Aires, Claridad, 1944, pp. 475-477.
58 Verne, Julio, La esfinge de los hielos, translated by J. M. Huertas Ventosa, Buenos Aires, Molino Argentina, 1940, p. 30.
59 Cfr. Nogueira Itagiba, Ivair, Homicídio, exclusâo de crime e isençâo de pena, Río de Janeiro, 1958, vol. II, p. 429.
60 Cfr. Leyes de Manú, translated by Juan España, Madrid, Librería Bergua, seventh book, 90-93, p. 154.
61 Grocio, Hugo, Del derecho de la guerra y de la paz, translated by Jaime Torrubiano Ripoll, Madrid, Reus, 1925, vol. I, pp. 21 and 23.
62 The relationship between war crimes is stated in article 8 of the Statute. They must have been committed "as part of a plan or policy or as part of the commission in great scale of such crimes". Of great importance are the serious infractions to the Geneva Conventions of August 12, 1949. Meanwhile, the Convention does not include the use of weapons that cause superficial injuries, or unnecessary suffering, or that have indiscriminatory effects in detriment of international humanitarian Law. In order to be a punishment in this cases, it is necessary that "the weapons or missiles, war materials or methods, are object of a full banning and are included in an appendix of the present Statute (of Rome, on the International Criminal Court) by reason of an amend approved in agreement with the dispositions that, about the subject, are included in articles 121 and 123" (elements of the crime regarding the crime included in article 8, b, XX). It is possible that a State Party in the Convention submits itself to the Court’s jurisdiction with respect to these crimes, "during a period of time of seven years starting from the date in which the Statute came into force in the matter" (article 124).
63 Cfr. Glover, Jonathan, Humanidad e inhumanidad. Una historia moral del siglo XX, translated by Marco Aurelio Galmarini, Madrid, Cátedra, 2001, p. 19.
64 Cfr. Permanent Tribunal of the Peoples, Session on the Genocide of the Armenians, April 13 to 16, 1984, Verdict, Paris, Permanent Tribunal of the Peoples, 1984, pp. 10 ff.
65 In the terms of article 6 of the Rome Statute, genocide is understood as an act perpetrated "with the intention of completely or partially destroying a national, ethnic, racial or religious group as such". That act ion shall consist of: killing of the members of the group, serious injury to physical or mental integrity of the alter, intentional submission of the group to conditions of existence that lead to their total or partial physical destruction, measures meant to prevent births within the group, and forceful moving of children from one group to another one.
66 About these cases, cfr. Amnesty International, Crimes without Punishment. Political Homicides and Forced Disappearances, EDAI, pp. 7 and 8.
67 Estimates of Cook, S. F. and Borah, W., cited by Bonfil Batalla, Guillermo, México profundo. Una civilización negada, Mexico, Grijalbo, 2001, pp. 127 and 128.
68 Cfr. Durkheim, Emilio, El suicidio, translated by Mariano Ruiz Funes, Mexico, UNAM, Coordinación de Humanidades, 1983, p. 60.
69 Cfr. Borges, Guilherme and Mondragón, Liliana, "Epidemiología de la conducta suicida en la ciudad de México", Crónicas de la ciudad de México. A pie, vol. 1, num. 3, October-December 2003, pp. 20-23.
70 Deuteronomius 32, 39.
71 Aquino, Tomás de, Tratado de la justicia, 2nd ed., translated by Carlos Ignacio González, S. J., Mexico, Porrúa, 1981, p. 172 (chapter VIII, article 5).
72 Encíclica Mater et Magistra, 5 (194), 1961.
73 Cfr. Durkheim, Emile, El suicidio, cit., note 68, p. 445.
74 The Koran, XVI, 63.
75 Cfr. ibidem, LVI, 60.
76 Sienkiewicz, Enrique, ¿Quo vadis?, 2nd ed., Mexico, Porrúa, 1974, pp. 410 and 411.
77 Goethe, J. W., Werther, 10th ed., Mexico, Porrúa, pp. 221, 223, 259 and 271.
78 Cfr. Marchiori, Hilda, El suicidio. Enfoque criminológico, Mexico, Porrúa, 1998, pp. 56 ff.
79 Durkheim, Emile, op. cit., note 68, p. 445.
80 Cfr. Manzini, op. cit., note 14, pp. 398 and 399.
81 Beccaria, César, De los delitos y de las penas, translated by Juan Antonio de las Casas, introductory study of Sergio García Ramírez, Mexico, Fondo de Cultura Económica, 2000, pp. 294 and 298.
82 Issued by Benito Juarez, as part of the Reform Laws; the decree "establishes that every intervention of the clergy in cemeteries and graveyard is ceased".
83 Cfr. Lugo Olín, Concepción, "De los atrios a los cementerios", Crónicas de la ciudad de México. A pie, vol. 1, num. 3, October-December 2003, p. 45.
84 Roxin, Claus, op. cit., note 12, p. 26.
85 Cfr. Mantovani, Ferrando, "Sobre el problema jurídico del suicidio", ibidem, p. 73.
86 Díaz-Aranda, Enrique, Dogmática del suicidio y homicidio consentido, Madrid, Universidad Complutense de Madrid, Facultad de Derecho-Centro de Estudios Judiciales, Ministerio de Justicia, 1995, p. 140.
87 Cfr. ibidem, p. 149.
88 Islas de González Mariscal, Olga, Análisis lógico de los delitos contra la vida, 4th ed., Mexico, Trillas, 1998, p. 260.
89 Roxin, Claus, op. cit., nota 12, p. 4.
90 Niño, op. cit., note 2, p. 81; and Morillas Cueva, Lorenzo, "Prologue", in Roxin, Claus et al., op. cit., note 12, p. XVII.
91 Cfr. Arilla Bás, Fernando, "Las medidas asexualizadoras de anormales y delincuentes en las legislaciones europeas", Criminalia, vol. VIII, num. 3, November, 941; and Pérez Valera, Víctor, Eutanasia. ¿Piedad? ¿Delito?, Mexico, Jus, 1989, p. 104.
92 Platon, La República, translated by Antonio Gómez Robledo, Mexico, UNAM, Coordinación de Humanidades, 1971, chapter III, pp. 105, 106 and 108.
93 Moro, Tomás, Utopía, Mexico, Porrúa, 1977, second book. About the slaves, p. 61.
94 Jiménez de Asúa, Libertad de amar y derecho a morir, 6th ed., Buenos Aires, Losada, 1946, pp. 365; and Pérez Valera, Víctor, op. cit., note 91, p. 137.
95 González de la Vega, Francisco, Derecho penal mexicano. Los delitos, 12nd ed., Mexico, Porrúa, 1973, p. 90.
96 Roxin, Claus, op. cit., note 12, p. 3.
97 Jiménez de Asúa, op. cit., note 94, pp. 338 and 339.
98 Cfr. ibidem, p. 340.
99 Cfr. Marlasca, op. cit., note 6, p. 195; also Casado, María, "La controversia de la eutanasia", En el límite de los derechos, Barcelona, EUB, 1996, p. 167.
100 Morillas Cueva, Lorenzo, op. cit., note 90, p. XVIII.
101 Ortiz Quesada, Federico, El acto de morir, 6th ed., Mexico, Némesis, 1989, p. 9.
102 Jiménez de Asúa, op. cit., note 94, pp. 343 ff.
103 Cfr. Marlasca, op. cit., note 6, pp. 219 and 220.
104 Cfr. http://www.elmundo/es/cronica/2003/416/1065440651.html.
105 De Beauvoir, Simone, Una muerte muy dulce, translated by María Elena Santillán, Buenos Aires-México, Sudamericana, 2002, pp. 55 and 77.
106 El Clarín, January 17, 1993, cited in Neuman, Elías, Sida en prisión (un genocidio actual), Buenos Aires, Depalma, 1999, p. 235.
107 Cfr. Affaire Pretty c. Royaume-Uni (Requête no. 2346/02), Arret, 29 April 2002.
108 Vid. http://cnnenespanol.com/2003/salud/10/15/coma.desconexion/ and http://www.laopinion.com/salud/salud_home.html?rkey=00031015220832040924.
109 Morillas Cueva summarizes the current legislative view in the following terms: "there are three options to the legal-criminal treatment with which the legal writings describe active direct and consent euthanasia, sometimes combined with other modalities: a) regulations that omit any reference to the consent with which certain conducts such as homicide or murder are punished, or becoming more defined in a different unfair that, however, has a similar punishment than the latter, without prevision of reduction of penalty; b) codes that include for those cases, certain reduction of the penalty with respect to the one established for homicide; c) punitive texts incline, upon the exigency of certain reserves, on the no-punishment thesis". Morillas Cueva, Lorenzo, op. cit., note 90, p. XX.
110 Article 37 of the Criminal Code of Uruguay, introduced by the 9414 Act of June 29, 1934, has expressed: "The judges have the faculty of exonerate of punishment that who has honorable antecedents, and has committed homicide for pious reasons, through reiterated pleads from the victim".
111 Jiménez de Asúa, op. cit., note 94, pp. 434-436.
112 Navarro Valls, Rafael, "La objeción de conciencia al aborto: derecho comparado y derecho español", Anuario de Derecho Eclesiástico, vol. II, 1986, P. 308, cited by Niño, op. cit., note 2, p. 229.
113 Muñoz Conde, Francisco, "Summary of ponences" (presented to an international European Seminar on Euthanasia), in Díez Ripollés, José Luis and Muñoz Sánchez, Juan, El tratamiento jurídico de la eutanasia: una perspectiva comparada, Valencia, Tirant lo Blanch, 1996, p. 555.
114 Group of Studies of Criminal Policy (Spain), "Propuesta alternativa al tratamiento jurídico de las conductas de terceros relativas a la disponibilidad de la propia vida", in Díez Ripollés y Muñoz Sánchez, op. cit., previous note, pp. 618, 620 and 621.
115 Roxin, Claus, op. cit., note 12, p. 38.
116 About the Spanish Criminal Code, cfr. Olmedo Cardenete, Miguel, "Responsabilidad penal por la intervención en el suicidio ajeno y en el homicidio consentido" and Barquín Sánz, Jesús, "La eutanasia como forma de intervención en la muerte de otro", in various authors, Eutanasia y suicidio. Cuestiones dogmáticas y de política criminal, Granada, Comares, 2001, pp. 105 ff and 155 ff, respectively.
117 Such project does not limit to the pain, that reveals the most general case, but it alludes to "serious situations of pain that cannot disappear in any other way". Roxin, Claus, op. cit., note 12, p. 10.
118 Tolstoi, Leon, op. cit., note 25, p. 115.
119 I refer to the phases the ill person goes through when he receives the diagnosis of death. Cfr. Ortiz Quesada, Federico, op. cit., note 101, pp. 47-49 and 65-66.
120 Cfr. García Ramírez, Sergio, "Desarrollo de los sustitutivos de la prisión", Estudios jurídicos, Mexico, UNAM, Instituto de Investigaciones Jurídicas, 2000, pp. 711 ff, and "Consecuencias del delito: los sustitutivos de la prisión y la reparación del daño", Revista Latinoamericana de Derecho, vol. I, num. 1, January-June 2004, pp. 181 ff.
121 The Criminal Code of Mexico City states: "When it comes to alternative punishability, in which the penalty of imprisonment is considered, the judge may impose, founding his decision, the sanction of liberty deprivation only when it is unavoidable for the justice’s purposes, the general prevention and special prevention" (article 70, last paragraph).
122 On this matter, cfr. Elpidio Ramírez’s critique, cited in García Ramírez, Sergio, Proceso penal y derechos humanos, 2nd ed., Mexico, Porrúa, 1993, p. 272.
123 Article 345, GHL, states: "There would not be any impediment that as a request or authorization, the following people: the spouse, the concubine, the man who lives with the concubine, the descendants, the ascendants, the siblings, the adopted or the adopter, according to the order expressed, omit the artificial means that avoid that the one who has proven brain death, present the rest of the death signs to which clause II of article 343 refers".
124 Cfr. Jiménez Huerta, Mariano, Derecho penal mexicano. La tutela penal de la vida e integridad humana, 2nd ed., Mexico, Porrúa, 1971, vol. II, pp. 143 and 144.
125 Cfr. González de la Vega, Francisco, op. cit., note 95, p. 129.
126 Friedman, W., El derecho en una sociedad en transformación, translated by Florentino M. Torner, Mexico, Fondo de Cultura Económica, 1966, p. 251.
127 Ibáñez, José Luis and García-Velasco, La despenalización del aborto voluntario en el ocaso del siglo XX, Madrid, Siglo XXI Editors, 1992, p. 60.
128 Gómez Grillo, Elio, Diario de criminología, Caracas, Central University of Venezuela, 1977, p. 186.
129 Cfr. Wicclar, Mark R., "La controversia sobre el aborto y el reclamo de que este cuerpo es mío", translated by Laura E. Manríquez, in Valdés, Margarita M. (comp.), op. cit., note 1, pp. 209 ff.
130 Cfr. Pérez-Tamayo, op. cit., note 3, p. 174.
131 Villoro, Luis, "¿Debe penalizarse el aborto?", in Valdés, Margarita M. (comp.), op. cit., note 1, p. 243.
132 Cfr. Jiménez de Asúa, op. cit., note 94, p. 326.
133 Cfr. Pérez Tamayo, Ruy, op. cit., note 3, p. 191 (n. 40).
134 Cfr. Jiménez de Asúa, "La talidomida y el derecho penal", in various authors, Estudios penales. Homenaje al R. P. Julián Pereda, S. J., Bilbao, Universidad de Deusto, 1965, pp. 425 ff.
135 Cfr. Hirsch, Hans Joachim, "La reforma de los preceptos sobre interrupción del embarazo en la República Federal Alemana", in various authors, La reforma penal. Cuatro cuestiones fundamentales, Madrid, German Institute, 1982, p. 39.
136 Ibáñez, op. cit., note 127, pp. 60 and 62.
137 To a perspective about the situation on the legislation on abortion in the whole country, cfr. Barraza, Eduardo, Aborto y pena en México, Mexico, Instituto Nacional de Ciencias Penales-Grupo de Información en Reproducción Elegida (GIRE), 2003. Also, cfr. Barreda, Luis de la, El delito de aborto. Una careta de buena conciencia, Mexico, Miguel Ángel Porrúa-Instituto Nacional de Ciencias Penales, 1991, pp. 113 ff; Islas de González Mariscal, Olga, Análisis lógico…, cit., note 88, pp. 284 ff; and García Ramírez, Sergio, "Consideración jurídico-penal del aborto", Cuestiones criminológicas y penales contemporáneas, Mexico, Instituto Nacional de Ciencias Penales, 1981, pp. 99 ff, reproduced in id., Criminología, marginalidad y derecho penal, Buenos Aires, Depalma, 1982, pp. 89 ff.
138 Cfr. Leal, Luisa María, "La igualdad formal de la mujer. El aborto, un derecho conculcado", en id. (coord.), El problema del aborto en México, Mexico, Porrúa, 1980, pp. 161 ff.
139 Cfr. García Ramírez, Sergio, "Igualdad jurídica entre el hombre y la mujer", Temas jurídicos, Mexico, 1976, pp. 265 ff.
140 Lamas, Marta, "Del cuerpo a la ciudadanía. El feminismo y la despenalización del aborto en México", en Valdés, Margarita M. (comp.), op. cit., note 1, p. 221.
141 Cfr. various authors, La Suprema Corte de Justicia y el derecho a la vida. Sentencia sobre el aborto, Mexico, Instituto Nacional de Ciencias Penales, 2003, pp. 36 ff.
142 Cfr. ibidem, pp. 47 ff.
143 In similar terms, article 141 bis of the Code of Criminal Procedures of the State of Morelos.
144 Article 105, clause II, last paragraph: "The resolutions of the Supreme Court of Justice may only declare invalidity of the impugned norms, whenever they were approved by a majority of at least eight votes".
145 With regards to this process, cfr. various authors, op. cit., note 142, pp. 147 ff.
146 Cfr. Reforma, September 4, 2003, p. 3-A. The display subscribed by several organizations is lead by: Grupo de Información en Reproducción Elegida, A. C. (GIRE), Alaide Foppa, A. C., and Center for Reproductive Rights.
147 Cfr. Bodenheimer, Edgar, Teoría del derecho, 3rd ed., 1st. reprint, translated by Vicente Herrero, Mexico, Fondo de Cultura Económica, 1971, pp. 18 ff.
148 Lope Blanch, J. M., "Biografía y presentación", in Vega, Lope de, Fuente Ovejuna. Peribáñez. El mejor alcalde, el Rey. El caballero de Olmedo, 11th ed., Mexico, Porrúa, 1978, p. 3.
149 Rudé, George, La revolución francesa, translated by Aníbal Leal, Buenos Aires, Javier Vergara Editor, 1989, p. 123.
150 Paine, Thomas, Los derechos del hombre, 3rd ed., translated by J. A. Fontanilla, Buenos Aires, Aguilar, 1962, p. 68.
151 Revueltas, José, "Dios en la tierra", in various authors, op. cit., note 56, p. 149.
152 Monsiváis, Carlos, "Justicia por propia mano", in various authors, Justicia por propia mano, México, Comisión Nacional de los Derechos Humanos, 2002, p. 11.
153 Valadés, Edmundo, "La muerte tiene permiso", in Monsiváis, Carlos (sel. and pres.), Lo fugitivo permanece. 20 cuentos mexicanos, 2nd ed., 2nd reprint, México, Cal y Arena, 2002, pp. 51 ff.
154 Machiavelli, Nicholas, El Príncipe, 7th ed., Mexico, Porrúa, 1981, chapters VIII, XVII and XX, pp. 16, 29, 38 and 39.
155 Cfr. Zaffaroni, E. Raúl, Muertes anunciadas, Temis-Interamerican Institute of Human Rights, 1993, pp. 11-13.
156 Cfr. my Particular concurrent vote to the sentence in the Case Myrna Mack Chang, of November 26, 2003.
157 Cáceres P., Jorge, "Terrorismo de Estado, seguridad nacional y democratización en Centroamérica. Algunas reflexiones conceptuales", Anuario de Estudios Centroamericanos, San José, University of Costa Rica, 15 (1), 1989, p. 81.
158 Exodo, 21, 12-15.
159 II, 133.
160 Beristáin, Antonio, "Pro y contra la pena de muerte en la política criminal contemporánea", in various authors, Cuestiones penales y criminológicas, Madrid, Reus, 1979, p. 579.
161 Cfr. Ortolán, M., Curso de legislación penal comparada, Madrid, Sociedad Literaria y Tipográfica, 1845, pp. 134-138.
162 Lenotre, G., La guillotine et les exécuteurs des arrêts criminels pendant la Révolution, París, Lib. Academique Pérrin et Cie., Libraires-Editeurs, 1927, p. 216.
163 Víctor Hugo, El 93, translated by Miguel Giménez Sales, Barcelona, Edisven, 1968, p. 427.
164 Huidobro, Vicente, "Temblor de cielo", in various authors, op. cit., note 18, p. 53.
165 Bentham, Tratados de legislación civil y penal, translated by Ramón Salas, Madrid, Editora Nacional, 1981, p. 308.
166 Shakespeare, William, María Estuardo, 3rd ed., translated by José Ixart, Mexico, Porrúa, 1996, act IV, scene X, pp. 56 and 57.
167 Cfr. Foucault, Michel, Los anormales, translated by Horacio Pons, Mexico, Fondo de Cultura Económica, 2001, p. 86.
168 Cfr. Cabanès, "Les affaires Calas et Sirven au tribunal de la postérité", in various authors, Les énigmes de l’histoire, París, Albin Michel, 1949, pp. 110 ff.
169 Cfr. Beccaria, op. cit., note 81, pp. 274 ff.
170 Lagerkvist, Pär, El verdugo y otros cuentos, 3rd reprint, translated by Fausto Tezanos Pinto, Buenos Aires, Emecé Editors, 1957, pp. 52 and 53.
171 Quevedo y Villegas, Francisco de, Historia de la vida del Buscón llamado Don Pablos, ejemplo de vagamundos y espejo de tacaños, 7th ed., Madrid, Aguilar, 1974, book I, chap. VII, p. 34.
172 Hands Off Cain, The Death Penalty Worldwide, Rome, 2002 Report, 2002, p. 76.
173 Ibidem, pp. 32, 36 ff.
174 About this topic, cfr. my article "Derecho a la vida y aplicación de la pena de muerte en la jurisprudencia de la Corte Interamericana de Derechos Humanos", Criminalia, vol. LXVIII, num. 2, May-August 2002, pp. 59 ff, in which I make a comment about the sentence pronounced in the case Hilaire, Constantine, Benjamin and others vs. Trinity and Tobago, of June 21, and I include my own Concurrent reasoned vote which goes together with that sentence.
175 I refer to the sentences pronounced by the Privy Council, on November 20, 2003, in the cases Balkinssoon Roodal vs. The State (Trinity and Tobago) and Haroon Khan vs. The State (idem), which invoked the sentence of the Inter American Court mentioned in the previous note, and judge as unfair the application of the death penalty to all who had committed homicide, without taking into account the circumstances in which the crime was committed nor the particular position of the accused person.
176 Cfr. Hands Off Cain, op. cit., note 172, p. 39.
177 Cfr. Kreb, Claus, "Sanciones penales, ejecución penal y cooperación en el Estatuto de la Corte Penal Internacional (parts VII, IX and X)", in Ambos, Kai and Guerrero, Óscar Julián (comps.), El Estatuto de Roma de la Corte Penal Internacional, Bogota, Universidad Externado de Colombia, 1999, pp. 341 and 342.
178 Cfr. "Anulan en Nigeria pena de lapidación contra Amina Lawal", El Universal, November 26, 2003, p. A-5.
179 Death is not justice. The Council of Europe and the Death Penalty, Directorate General of Human Rights, Council of Europe, 2001, p. 12.
180 Cfr. About this issue, the document book of Latzer, Barry, Death Penalty Cases. Leading U. S. Supreme Court Cases on Capital Punishment, Boston, Butterworth-Heinemann, 1998. Also cfr. Ramella, Pablo A., Atentados a la vida, Buenos Aires, Paulinas, 1980, pp. 55 and 56.
181 Cfr. "Amnistía a reos beneficia sólo a un mexicano", El Financiero, September 17,2003, p. 40.
182 USA Today, March 26, 1997.
183 About some of the developments of international law that I mention in these paragraphs, cfr. Schabas, William, The abolition of the Death Penalty in International Law, 2nd ed., New York, Cambridge University Press, 1997, pp. 147 and ff.
184 Restrictions to death penalty (articles 4.2 and 4.4, American Convention on Human Rights). Advisory Opinion OC-3/83 September 8, 198, series A, number 3, paragraph 52.
185 Cfr. http://www.ya.com/penademuerte/listapaises.htm.
186 About the debate in the Constitutional Congress, cfr. García Ramírez, Sergio, El artículo 18 constitucional: prisión preventiva, sistema penitenciario, menores infractores, Mexico, UNAM, Coordinación de Humanidades, 1967, pp. 45 ff.
187 García Ramírez, Sergio, Los personajes del cautiverio. Prisiones, prisioneros y custodios, 2nd ed., Mexico, Porrúa, 2002, p. 117.
188 Cfr. "Buscan abolir la pena de muerte en la Constitución", El Universal, September 13, 2003, p. A-16.
189 Cfr. "Hubo 500 consejos de guerra en 10 años", El Universal, November 28, 2003, p. A-24.
190 Cfr. Islas de González Mariscal, Olga, "La pena de muerte en México", in Díaz-Aranda, Enrique and Islas de González Mariscal, Olga, Pena de muerte, Mexico, UNAM, Instituto de Investigaciones Jurídicas, 2003, pp. 60 ff.