The new liberal world order
by Sebastian Millbank, The Critic:
On February 26th of this year, Germany’s Federal Constitutional Court overturned the legislation of 2015 that banned the provision of assisted suicide by ‘commercial’ organisations, opening the door to full legalisation of euthanasia in Germany.
What makes this judgement so extraordinary is that it does not merely alter the elements of a piece of legislation but reads into the German constitution a ‘right to self-determined death’. In Germany, where the last great legalisation of euthanasia was carried out by the Nazi state in order to eliminate those considered burdensome to society, a group of unelected judges have taken it upon themselves to invent a right to euthanasia and impose it on all 80 million Germans, without bothering to consult their elected representatives.
We are used to thinking of America and its antique constitution as the source of judicial activism, in which politically appointed judges seek to legislate from the bench, and where contentious matters such as bans on school prayer and a right to abortion have been ‘discovered’ in constitutional provisions that could never have been intended to include them. Europe, with its far more modern constitutions and more ‘rational’ and co-operative politics seemed immune to such things.
But no longer. In 2009, for example, the ECHR in Strasbourg ruled that Italy’s placing of crucifixes in its classrooms infringed the human rights of students. With Tony Blair’s removal of judges here from parliament into a newly invented Supreme Court, and the implementation of the 1998 Human Rights act, we acquired our own set of controversial provisions, with ever broadening, ever deeper judicial review of legislation setting up regular court battles between the government and various activists. Most controversially the proroguing of parliament was recently deemed unconstitutional, temporarily putting the government, parliament and judiciary at odds with one another, and the judges having declared themselves to be on top. The balance of the liberal constitutional order is in profound trouble.
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