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What to learn from failed attempts to legislate physician assisted dying

Sun, 20 Sep 2026 14:12:51 GMT

Assisted Adult Dying Bill III stranded in the House of Lords

Regulating Assisted Dying: A Comparative Analysis of Legislative Failure

By Professor Sören Koch

The regulation of physically assisted dying (PAD), and in particular assisted suicide, represents one of the most contentious and conceptually demanding challenges in contemporary legal systems. Drawing on a comparative perspective focused on Germany, Great Britain and Norway, this post examines why legislative attempts to regulate assisted dying so frequently fail. It argues that these failures reflect deep normative tensions between individual autonomy and the duty of the state to protect life. The difficulty is a recurring one, as distinct legislatures struggle to translate abstract commitments to autonomy, protection and dignity into workable legal procedures.

Although these tensions are difficult to reconcile, they are not insurmountable. Indeed, the European Court of Human Rights (ECtHR) demands that member states strike a fair balance between the rights and interests involved (Mortier v Belgium para. 143) and does not accept the difficulty of achieving political consensus (Gross v Switzerland para. 66) as a justification for legislative inaction.

The Normative Starting Point: Autonomy and Its Limits

At first glance, the argument in favour of legalising assisted dying appears intuitively compelling. Liberal philosophical traditions, most notably articulated by John Stuart Mill ( On Liberty 1859 ), emphasise the sovereignty of the individual over body and mind. Later Ronald Dworkin maintained that “making someone die in a way that others approve, but he believes a horrifying contradiction of his life, is a devastating, odious form of tyranny” ( Life’s Dominion 1993 ). From these perspectives, the self-determined act of ending one’s life is a direct, albeit final, expression of the pursuit of personal autonomy inherent in human dignity. Accordingly, state interference should be limited to what is absolutely necessary (see also German Federal Constitutional Court Judgment 26 February 2020 – 2 BvR 2347/15 para. 211).

Yet this seemingly straightforward position encounters immediate resistance when placed within a legal framework in which the protection of life constitutes a potentially conflicting principle. In modern legal systems the individual is not seen merely as a bearer of subjective rights, but also as embedded within a social order that has a paramount interest in preserving life.

The legal problem, therefore, lies in reconciling two powerful but potentially conflicting claims: the individual’s right to self-determination and the state’s obligation to safeguard life. This conflict underpins all regulatory attempts in this field. In addition to individual rights, any regulation must consider the consequences for vulnerable groups, medical practitioners and other persons potentially involved in the process of PAD.

Changing Social and Legal Contexts

The growing urgency of this issue is closely tied to wider societal and technological developments. Advances in medical science have extended life expectancy, often prolonging the lives of individuals suffering from incurable or degenerative conditions. As a result, an increasing number of people are confronted with the prospect of prolonged suffering and are faced with questions about whether—and how—they might choose to end their lives. At the same time, demands for greater self-determination have been strengthened by developments in constitutional and international human rights law, alongside shifting societal attitudes towards death and dying.

Yet these developments do not resolve the underlying tension; rather, they intensify it by placing additional pressure on legislators to respond.

The European Human Rights Framework: Freedom Within Limits

The case law of the ECtHR provides an important point of reference for national regulation, at least in Europe. In Karsai v Hungary (no. 3212/23 § 85), the Court observed that the right to decide when and how to die “relates to core aspects of his right to respect for his private life enshrined in Article 8 of the Convention. It concerns respect for his autonomy, physical and mental integrity and for human dignity, which is the very essence of the Convention provided the decision is made freely and with full capacity”

At the same time, the Court recognised that member states enjoy a “considerable margin of appreciation” in this area (Karsai v Hungary no. 3212/23 § 139). This means that member states are not obliged to legalise assisted dying (ibid § 144), but must ensure that any restrictions on individual autonomy are proportionate and strike a fair balance between competing interests (ibid § 145).

This framework sets the stage for national regulatory efforts—while simultaneously highlighting the inherent difficulty of the task.

Germany: Constitutional Recognition Without Legislative Success

Germany provides a striking example of the gap between constitutional principle and legislative practice. In its landmark decision of 26 February 2020 ( 2 BvR 2347/15 ), the Federal Constitutional Court held that the German Constitution protects the right to a self-determined death, including the right to seek assistance.

This ruling represents one of the most autonomy-centred approaches in Europe. It rejects an absolute prohibition of assisted suicide as unconstitutional and significantly restricts the scope for state intervention in this area.

Despite this clear constitutional framework and strong public support for assisted dying, the German legislature has repeatedly failed to enact a regulatory regime. Multiple draft laws have been proposed, but none has succeeded in securing a parliamentary majority.

One reason for this failure lies in the constraints imposed by the constitutional ruling itself. Legislators are required to respect a broad conception of autonomy, which limits their ability to introduce restrictive conditions such as terminal illness or unbearable suffering. At the same time, there remains a strong political desire to implement safeguards to protect vulnerable individuals. The result is legislative paralysis: proposals either risk being unconstitutional or fail to gain sufficient political support.

Great Britain: Procedural Complexity and Political Contestation

Great Britain presents a different, but equally illustrative, case. In England and Wales, the Suicide Act 1961 imposes a blanket prohibition on assisted suicide, punishable by up to fourteen years’ imprisonment. Assisted suicide is also a criminal offence in Scotland.

In recent years, however, there have been several attempts to introduce reform, most notably through the Terminally Ill Adults (End of Life) Bill (for England and Wales) and the Assisted Dying for Terminally Ill Adults (Scotland) Bill . These proposals have generally adopted a highly procedural approach, seeking to ensure that assisted dying is only permitted under carefully controlled conditions.

The proposed regulatory frameworks typically include multiple stages: initial declarations, independent medical assessments, mandatory reflection periods, and final confirmation procedures. These safeguards are designed to ensure that decisions are voluntary, informed, and free from coercion.

Yet, despite strong public support, legislative efforts have repeatedly failed. The Terminally Ill Adults (End of Life) Bill , which was the most recent attempt, passed the House of Commons but stalled in the House of Lords due to an overwhelming number of amendments and a lack of time. The Scottish Parliament voted against the Assisted Dying for Terminally Ill Adults (Scotland) Bill .

The British experience highlights a different dimension of the problem. Here, the difficulty does not lie in constitutional constraints, but in political fragmentation and the challenge of designing a regulatory framework that satisfies competing ethical concerns. The result is an increasingly complex and bureaucratic legislative model. The provisions on conscientious objection risk giving the impression that PAD is being entrusted to a medical profession that is expected, as a body, to object to the very task assigned to it. Under these conditions, it is hard to see how the proposed regulation can achieve its objective.

Norway: Absolute Prohibition and Legislative Inertia

By comparison with Germany and Great Britain, Norway represents the most restrictive approach. Assisted suicide remains subject to an absolute prohibition under the Penal Code , flanked by severe criminal sanctions.

The underlying normative position is clear: life is regarded as an inalienable good which cannot voluntarily be disposed of by individuals (cf. NOU 2004:4 s. 350 and Ot.prp. nr. 22 (2008-2009) s. 189). This principle is reflected in legislative history, which explicitly rejects the idea that consent or any voluntary decision can legitimise the taking of life.

Interestingly, there is a considerable gap between “law in the books” and “law in action”. Despite the strict legislative framework, courts have frequently mitigated sentences in cases involving compassionate and altruistic motives in a way that is hardly in accordance with the legislative intent or the letter of the law.

Despite increasing public support for legalisation, political actors in Norway have shown little willingness to initiate reform. This reluctance may reflect a desire to avoid engaging with a morally divisive issue, effectively delegating difficult end-of-life decisions to medical practice and ethics rather than legal regulation.

Explaining Legislative Failure

The comparative analysis reveals that the failure to regulate PAD has different causes across jurisdictions: constitutional constraints in Germany, procedural complexity and political contestation in Great Britain, and political inertia in Norway.

However, these variations share a common underlying cause: the difficulty of striking a stable and legitimate balance between competing values.

Any attempt to prioritise one of these values risks undermining the others. A strongly autonomy-based approach may fail to provide adequate safeguards, while a highly protective framework may unduly restrict individual freedom. The challenge is not merely to find a compromise, but to adopt a comprehensive regulatory framework that is perceived as balanced by stakeholders. However, this also means that stakeholders insisting on full legalisation or an absolute ban must accept that their positions will need to be mitigated, at least to some extent. That this is possible to achieve can be seen in the successful attempts to regulate the topic in Austria and most recently in France.

Conclusion: The Challenge of Creating a Balanced Regulatory Approach

The regulation of assisted dying illustrates the challenges of legal design in the face of profound ethical disagreement. The European Court of Human Rights has made clear that member states have a duty to strike a fair balance between individual autonomy and the protection of life.

Yet the experiences of Germany, Great Britain, and Norway suggest that such a balance is extraordinarily difficult to achieve. Legislative failure in this area reflects not only political disagreement, but also a deeper uncertainty about the role of law in regulating the most intimate and irreversible of human decisions. Avoiding the issue, however, is not a sustainable response. Confidence in democratic institutions and in democracy itself requires decisive action and a willingness to confront these questions openly and with due regard to the evidence.

Comparative legal studies can serve as important sources of inspiration and reference for that task. They can help to assess alternative regulatory models, strategies, risks, and effects in the governance of end-of-life decision-making, including effective safeguards for the protection of medical practitioners, vulnerable persons, and the wider public interest.

While comparative analysis can identify structural similarities and cultural differences, it cannot resolve the underlying normative and ethical conflicts. Still, it can improve the quality of legislative debate by informing legislators about regulatory choices and trade-offs. Political reluctance to engage then becomes more difficult to defend. Gathering knowledge is essential for an informed discourse in a democratic society. To dismiss scientific knowledge with the argument that this would inevitably open Pandora’s Box towards the legalisation of PAD and relativise the value of life poses a threat to democratic debate and human rights protection.

Participants report

Sun, 20 Sep 2026 14:00:38 GMT

PhD - course on Comparative Law and Comparative Legal Methods - a participants perspective

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A new pedagocial approach

Thu, 08 Jan 2026 07:40:07 GMT

Learning how to sail the ocean of legal cultures

Comparing Legal Cultures in Europe, Third Edition: A Pedagogical Reorientation

Introduction

The third edition of Comparing Legal Cultures in Europe marks a significant milestone in the teaching and study of comparative law. Edited by Sören Koch, Jørn Øyrehagen Sunde and Marius M. Kjølstad, the volume builds upon the foundations laid in the first two editions but introduces a distinctly new pedagogical orientation. This reorientation is not merely cosmetic; it reflects a deeper reconsideration of how comparative law should be taught, understood, and applied in the twenty‑first century.

For students, particularly in the Nordic countries but also across Europe, the editors have sought to create a textbook that is both accessible and intellectually rigorous. For scholars, the book offers an analytical model of how legal cultural comparison can be integrated into debates about comparative law, and the role and function of law in society.

This post will highlight the pedagogical innovations of the new edition, situating them within the broader context of comparative legal studies, and reflecting on their potential for teaching and scholarship.

Pedagogical Challenges of teaching Comparative Law

Comparative law has long struggled with a pedagogical dilemma. On the one hand, it is a discipline that requires breadth: students must be exposed to multiple legal systems, traditions, and cultures. On the other hand, it requires depth: without careful contextualisation, comparisons risk becoming superficial or misleading.

Traditional textbooks often oscillate between these poles. Some emphasise doctrinal detail, providing exhaustive accounts of foreign legal systems or specific legal problems but overwhelming students with information. Others adopt a more thematic approach, focusing on broad issues but sacrificing a more holistic perspective. The editors of Comparing Legal Cultures in Europe have sought to solve this dilemma by adopting a pedagogical model that is both structured and flexible. The so-called legal cultural model (LCM) allows us to identify and explain similarities and differences of selected features of legal cultures by providing accessible but sufficiently detailed knowledge.

Student‑tailored Design

The third edition is explicitly tailored to the needs of students. The editors recognise that today’s students approach comparative law with diverse backgrounds and expectations. They are trained in national legal systems that emphasise doctrinal analysis, but they become increasingly aware of the importance of transnational and international perspectives.

The book therefore adopts a student‑centred design. Chapters are structured to highlight selected legal cultural features, provide historical explanations, and offer comparative insights without overwhelming detail. Each chapter on the legal culture of a particular jurisdiction begins with some contextual information such as location, history, politics and economy, before discussing different elements of legal culture and ends with reflective exercises that encourage students to engage in critical thinking and discuss the content of the chapter. This aims to help them gain new perspectives on their own legal cultures and legal identities.

Focus on Legal Culture

A distinctive feature of this textbook (which was already present in the previous editions) is its emphasis on legal culture, defined as ideas and expectations of the law made operational by institutional (-like) practice. Rather than treating comparative law as a purely doctrinal exercise, the editors insist that law must be understood within its cultural, historical, and social context. A strong focus is put on the interplay between attitudes, behavior and values of practicing lawyers and their embeddedness in institutional practice, such as the constitutional framework, the system of norm production and conflict management.

This approach reflects the recent developments in legal scholarship, which has for some time emphasised that comparative law has become a pluralistic and interdisciplinary field. To further different purposes and objectives, comparatists have developed various tools to critically analyse the relationship between law and society. As David Nelken correctly observes: Legal Culture has become a key concept in this regard. The legal cultural perspective in this textbook encourages students to see law not merely as a set of rules, but as a living institution embedded in social practices, constitutional structures, and cultural features shared by most lawyers but also impacted by general features of regional, institutional, national and supranational cultures.

Innovative Formats and Assessment techniques

The editors have also embraced innovative pedagogical formats which they are applying actively in their multi-cultural classes and for students going abroad. Recognising that students today engage with law through multiple media and artificial intelligence, the editors encourage the use of blogs, podcasts and other digital resources discussing legal topics comparatively.

This is not a superficial development. By integrating alternative formats in their teaching, the editors seek to broaden the scope of comparative law, making it more accessible and engaging. Students are encouraged to produce their own comparative reflections in diverse formats, thereby developing skills that go beyond traditional academic writing. The book contains knowledge and helps students to develop corresponding analytical skills to disseminate comparative insights and discussions when using these formats.

Constitutional framework as an additional institutional element of the LCM

One of the most striking innovations is the integration of the constitutional framework into the LCM. The constitutional framework - regardless of whether the constitution is written, consists of one or several sources or is based on conventions - provides a natural point of orientation for comparative analysis.

By focusing on selected elements of legal cultures, the editors provide students with a framework for comparing legal cultures. This allows them to explore broader issues—such as the role and style of courts, the prevailing ideals of justice, legal methods, and the professionalisation and internationalisation of the law—while relating their analysis to specific legal systems, substantive norms and the application of law. In other words, the book includes insights into both law in action and law in minds, providing them with the foundations and tools for both macro- and micro-comparison.

Collaborative Scholarship

As the previous editions, CLC is a product of collaboration among young, distinguished scholars from across Europe, all of them using the LCM in their teaching, and most also in their research. Alongside the editors, contributors of this volume are Andrew Simpson (Scotland), Robert Taylor (England & Wales), Axel Hjo (Sweden), Morten Kjær (Denmark), Iris Nguyen‑Duy and Sunniva Bragdø‑Ellenes (France), and Johann Ruben Leiss (European Union). Drawing on more than a decade of classroom experience with the LCM—dating back even before the first edition in 2017—the model’s pedagogical value has consistently been affirmed. Despite the recent rise of AI‑based tools, the LCM remains a proven and effective framework for comparing legal cultures.

This diversity of contributors reflects the editors’ pedagogical commitment to plurality and intimate knowledge of the legal cultures presented in the book. Students are exposed to multiple voices, perspectives, and methodologies, thereby learning that comparative law is not a monolithic discipline based on one specific methodological approach but a dynamic exercise.

Structure and Content

The book is organised thematically, starting with chapters introducing the operationalised concept of legal culture and the LCM as analytical tool as well as a guideline to conduct legal comparison (COMPASS), including, but not limited to, legal cultural comparison. In the new edition, the number of legal cultures has been reduced to eight and focuses on European legal cultures, as these are most relevant for the intended audience. Each chapter combines an overview of institutional and intellectual features that invite cultural contextualisation. Furthermore, pedagogical features such as guiding questions, case studies, and reflective exercises have been added.

The editors have deliberately avoided the temptation to provide exhaustive detail. Instead, they focus on selected elements and structures, encouraging students to engage critically with the material and to pursue further research. This reflects a pedagogical philosophy that values active learning over passive absorption.

Potential Challenges

Of course, the new pedagogical approach is not without challenges. Some may argue that the emphasis on accessibility risks oversimplification. Others may question whether a cultural perspective is sufficient to provide students with any genuine understanding of foreign law or its cultural context. One might also object that the specific internal legal view of culture undermines other important aspects such as confidence in the legal system, general acceptance and role of law in society, the role of linguistics etc.

The editors are aware of these objections, and have sought to address them by emphasising understanding over detail. Considering that the main purpose of the book is to provide students with new perspectives on law, not least their own legal culture, the book does not aim to replace traditional scholarship; rather, it complements it, providing students with multiple entry points into the legal cultural studies.

Conclusion

In an era of increasing transnationalism, the pedagogical innovations of Comparing Legal Cultures in Europe are not merely timely; they are essential. The book offers a vision of comparative law as a dynamic, student‑centred discipline that is attuned to the cultural, historical, and social dimensions of the law.

Posted by Professor Sören Koch, University of Bergen.

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New article by Chernykh and Andenaes

Wed, 12 Nov 2025 12:46:56 GMT

This is a subtitle for your new post

In their chapter, Yuliya Chernykh and Mads Andenas examine the role of comparative methods in contract law research. The chapter emphasizes that comparison in contract law research is a versatile and powerful tool, capable of enriching both theory and practice by moving within legal doctrines as well as engaging broader contexts. Comparison may serve as a final goal or an interim step, ranging from small-scale insights that reveal biases in domestic systems to deep, multilayered inquiries driving reform or theory-building. The authors structure comparative methods around four methodological cores (such as classical, empirical, interdisciplinary, and critical) showing how each interacts with doctrinal research while also extending beyond it. They caution against superficial uses of comparison, stressing the need for genuine commitment, and they conclude by portraying comparative contract law as a vibrant field whose potential depends on the dedication and creativity of the researcher. The chapter is available here https://www.elgaronline.com/edcollchap-oa/book/9781035316472/chapter3.xml?rskey=KUSIkO&result=6

This chapter appears in Research Methods for Contract Law and Scholarship edited by Yuliya Chernykh and Joshua Karton and published by Edward Elgar Publishing in open access available here https://www.e-elgar.com/shop/gbp/research-methods-for-contract-law-and-scholarship-9781035316465.html?srsltid=AfmBOorTUxew1QzPSVUcQ9Zrs_srKS12MXVVmihTWi9ELhN5VUUrxQge . The volume that brings together diverse perspectives of doctrinal, empirical, economical, experimental, philosophical, and beyond, while encouraging innovative approaches to contract law research. The book aims to broaden methodological horizons, offering scholars, practitioners, and policymakers tools to rethink how contract law is studied and applied.

New textbook

Wed, 17 Sep 2025 11:30:01 GMT

Comparing legal cultures in Europe a textbook tailored for students' demands

In the new and third edition of Comparing Legal Cultures, (first ed. 2017, second ed. 2020) the editors have chosen to reduce the number of legal cultures included. The idea behind the revision of this book was to meet pedagogical demands and to reduce the price. The book starts with a general introduction of the purpose of the textbook and explains the analytical framework and the structure of each of the contributions. It contains introductory chapters on the Norwegian, Swedish and Danish Legal Cultures, followed by chapters on Scotland and England, France and Germany. The final chapter broadens the perspective and invites the reader to reflect on the extent it is possible to speak of a European legal culture. Each chapter contains 3 to 5 reflection questions which the reader can explore and discuss with others in order to test their knowledge and understanding. The release of the new textbook is scheduled for December 2025.

Bringing Global Perspectives into the Law Classroom: University of Stavanger’s Experience with COIL

Mon, 12 May 2025 12:08:11 GMT

Lana Bubalo, Study program director of Bachelor of Law program, University of Stavanger School of Business and Law

Students of the Bachelor of law program at the University of Stavanger (UiS) have from 2024 taken part in an innovative teaching and learning experience: the Collaborative Online International Learning (COIL) project. Through a digital partnership with the University of Antwerp in Belgium, our students explored the topic of transgender rights in a comparative context.

This project isn’t just about learning legal facts—it is about building connections across borders, gaining insight into a foreign legal system, and developing a cross-cultural understanding that’s increasingly important in today’s legal world.

It also allows students to develop other valuable future proof skills such as teamwork, time management, and digital communication – all necessary for functioning in a complex, professional context in a globalized society.

What Is COIL?

COIL is a teaching model that enables students in different countries to work together on academic tasks online. It’s a way of internationalizing the classroom without requiring travel, making it a sustainable way of teaching comparative law, and at the same time offering opportunity to gain broader perspectives on various legal issues.

At University of Stavanger, we decided to introduce the project as a mandatory assignment in the course BRV330 - Legal culture and comparative law. This is a mandatory 5 ECTS course, offered in the spring semester. The goal is to offer varied assignments in the program, in order to train a broader range of skills and encourage deeper learning over plain memorization.

The students from Stavanger and Antwerp are divided in small groups of 6-8 students. Over two structured online sessions, they get to know each other’s legal traditions and discuss how their respective legal systems approach a chosen topic - transgender rights. The first session starts with an ice-breaker activity, where students get to know each-other. Afterwords they discuss general features of each other’s legal systems. In the second session, they use guiding questions prepared by the course teacher to structure their discussions.

It is important to emphasize that the student’s engagement is crucial for the success of this project, as teachers serve primarily as facilitators rather than direct instructors. During COIL, students take responsibility for their educational experience, deepening their understanding, and contributing to the overall success of the project.

Student feedback: reflections on the experience

After the course was completed for the first time in 2024, the students gave their feedback in the anonymous course evaluation. The project sparked mixed reactions, as is often the case with new and ambitious educational formats.

On the positive side, students appreciated the opportunity to present and discuss Norwegian legal culture with peers from another country. The interactive format, especially the ice-breaker activities and guided questions, created a space for exchange that extended beyond the typical classroom experience.

However, since Belgian legal culture was not included in the curriculum, several students felt that the COIL sessions were disconnected from the rest of the course—as Belgian legal system was not directly relevant to the exam. Additionally, time pressure from other courses, especially the concurrent 25 ECTS obligations law course in the same semester, made it difficult to fully engage with the project, as students naturally prioritized the other course. Some students also felt that replacing the written assignment with the COIL activity deprived them of valuable feedback from the teacher that would have helped them prepare for the exam. Some students also expressed that the workload associated with this project was disproportionate for a 5-ECTS course. Others pointed to challenges in organizing the group work and navigating communication tools.

Lessons learned and the way forward

COIL is a powerful model for international learning, but like any educational innovation, it benefits from ongoing refinement. Taking into account the student’s feedback, we plan to introduce some changes to the future editions of the course and COIL assignment.

Although we believe that activities in the course do not necessarily need to be exam related as students learn for life, not only exam, we will better align COIL content with the learning goals and exam topics. This will be done by introducing Belgian legal culture to the list of legal cultures that are studied in the course. Second, we will run the courses legal cultures and law of obligations parallel throughout the semester, not consecutive as was the case in 2024, so that students have more time to prepare and focus on this project. The course teacher will also be more explicit in informing students about the purpose of the project and why the skills they gain are important for their future work perspectives. They should also be made aware that the groups they are assigned are the groups they have to work with, as this is also the case in a real-world work life, and that this too is a part of learning experience.

As for the objection of being deprived of the opportunity to get written feedback by the course teacher because this was replaced by COIL, UiS has hired student assistants, which will provide feedback on written work in preparation for the exam on a voluntary basis.

We are aware that the first few iterations are often filled with trial and error, unexpected challenges, and moments of doubt. But eventually, things tend to get easier as students develop clear expectations and instructors learn and adapt over time.

Despite the challenges, the COIL project represents a bold step toward more globally engaged legal education at the University of Stavanger. It encourages our students to be curious, collaborative, and culturally aware—qualities that will serve them well as future legal professionals in an interconnected world.

The website of the NACL has been launched! We are out there and can start sharing interesting thoughts, ideas, new or other relevant information in the field of comparative law.

test@looka.com — Thu, 07 Nov 2019 13:57:40 GMT

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Write about something you know. If you don’t know much about a specific topic, invite an expert to write about it. Having a variety of authors in your blog is a great way to keep visitors engaged. You know your audience better than anyone else, so keep them in mind as you write your blog posts. Write about things they care about. If you have a company Facebook page that gets lots of comments, you can look here to find topics to write about.