Multidimensional Origins of Biolaw and Bioethics and their Impact on Conceptions of Human Rights and Human Dignity

Contents

I. Introduction

II. Religious values in contemporary Europe
1. The Role of Faith in Law-Making and the continuing Culture War
2. Biolaw and Bioethics

III. Right to Life

IV. Why Religion can matter for Legal Discourse

V. Concluding remarks

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Abstract: Biolaw is a new legal discipline. Still closely related to the fundamentals on which law is built, such as philosophy, biolaw has evolved into a truly legal discipline. At the same time has it been recognized that biolaw has multiple sources and the recent emergence of the discipline makes these sources still relatively visible. This visibility might limit the acceptance of biolaw and in this article it will be attempted to pay attention to some of the issues which follow from the fact that biolaw is based on multiple sources. Particular attention will be given to one aspect which might be most controversial from a political perspective: the continued role of religion — and in particular Christian religion — in shaping thinking about biolaw also in secular societies.

Keywords: Biolaw, Christianity, European Convention on Human Rights.

I. Introduction

Biolaw is the regulation of biomedical issues. As a relatively new discipline, and one which relates closely to core questions of human identity and human rights, it is still very much related to the fundamental disciplines which underlie law, in particular philosophy.

While many lawyers will not consider themselves to be philosophers and indeed may draw a clear line between law and (legal) philosophy, to a certain extent, at least when applying a wide interpretation of the term to the effect that a philosopher is someone who’s desire for knowledge goes beyond a single science at a deeper understanding of the nature of things but rather focus on the need to look beyond one² ’s own discipline, all science is driven by a desire for truth. This need appears particularly relevant for lawyers due to the existence of different approaches to human rights. In addition, as attorneys we are are called upon to deal with a wide range of circumstances which affect our clients, as judges we have people from all walks of life before our bench, as representatives of the executive or legislative, we shape the framework of permitted behavior which regulates the lives of many. In a sense, in particular the work of attorneys is not that dissimilar from the work of priests: members of both professions enter the lives of our ³ “customers” briefly and often at times of need. The multitude of potential problems, even within one field of law, makes it necessary to be open to a range of different situation. Even an attorney who practices only the law of sales contracts will have to deal with situations as diverse as the sale of a used car or the sale of an entire industrial building. For a human rights lawyer, this challenge is multiplied due to the wide range of situations in which human rights law can become relevant.

It is the purpose of this article to highlight some of the issues which follow from the multiplicity of sources of biolaw. While the main thesis of this text is that there is a continued role for religion in shaping biolaw also in secular societies, particular attention will be given to the impact the Christian faith has had on the development of ideas which today form the new legal discipline of Biolaw.

For Jeremy Bentham⁴ rights follow from (positive) laws, while for H. L. A. Hart (Herbert Lionel Adolphus, although he is more commonly known under his initials H. L. A.) laws follow from human rights. ^{5 6} Hart’s view is proven by the impact of the Universal Declaration of Human Rights (UDHR) and other international human rights documents on domestic legislation. Hart^{7 8 9} ’s view which transcends positivism is convincing, regardless of the fact that positivism has been largely discredited in the 20¹⁰ th century. In fact, human rights are deliberately used to shape domestic laws. This is not a new phenomenon, in fact many new constitutions include human rights norms which still require to be given life by the domestic legislature, for example the United States¹¹ ’ Declaration of Independence or Germany¹² ’s Grundgesetz. In that sense, the ECHR is – albeit only in terms of values rather than organisational issues ¹³ – a constitutional document of post-war Europe. The margin of appreciation given to the states parties to the ECHR with respect to many rights under the Convention is a reminder of the need to give effect to internationally guaranteed human rights on the domestic level. Rights require those in power to take action on behalf of others. ¹⁴

The Catholic Church plays a special role in this context because it has consistently held since its beginnings that abortion is wrong and that the unborn child must not be killed. Other religions, including non-Catholic Christian groups do not share this view to the same extend. While for example many evangelical groups in the United States of America are distinctly pro-life, the 2011 debate in Germany about a new law would allow the genetic screening of in vitro embryos before implantation (PID) has been marked by the decision of the evangelical churches to allow the killing of unborn children in some cases. Taking as an example the predominantly Catholic nation of Ireland, which has rather strict laws against abortion, which have been the object of a recent judgment of the European Court of Human Rights, ¹⁵ A, B and C v. Ireland, we will look at the question why religiously motivated political ideas should even matter in the legal realm. ¹⁶

II. Religious values in contemporary Europe

One question which is asked by many today is how much the religious faith remains relevant for the contemporary legal systems in a Europe which seems to oscillate between a trend towards more secularism and strong roots in the Christian faith. In many legal systems, the neutrality of the state has evolved into a form of ¹⁷ de facto secularism which is practically identical to being opposed to religion per se.

1. The Role of Faith in Law-Making and the continuing Culture War

The culture war between faith and the state did not end with Bismarck. Rather, it has become an almost global conflict and is becoming more severe as the majority of society seems to put the focus on hedonism rather than on responsibility and on relativism rather than on clear values. More than ever, the motto of the Carthusian order, ‘stat crux dum volvitur orbis’, ‘the cross stands while the world is moved’, seems to be valid in that only a few religiously motivated value-based groups have not yet succumbed to the prevailing culture of moral relativism. From the perspective of human rights, relativism is dangerous because it clouds the fact that human rights have a ¹⁸ “non-relativistic core” ¹⁹ which needs to be protected and taken into account in the interpretation of human rights norms. In today’s world, many of the views presented in this thesis are perceived as outdated or anti-modern. The use of the language of rights by pro-choice activists indicates the degree of the disconnect between the general populace and the values on which the societies of (Western) Europe were based after World War II. The European Convention on Human Rights is still reflective of these values and while it has to be interpreted in light of present day conditions, the majority opinion among the general population or among politicians is not a “condition” in that sense. Rather, the Convention serves to uphold also the minimum standard of rights which is codified in it.

Some in the Western world believe that we are at the eve of a culture war against Islam. But the culture wars never ended. In an environment in which large parts of Europe are openly atheistic or only nominally religious, those who are willing to speak out in favor of their religiously motivated views are already the minority. It is therefore not so much a ²⁰ “clash of civilizations” ²¹ but rather a conflict between believers in general (at least, believers of the three large monotheistic religions) and unbelievers, which goes so far Muslims and Christians are already working together on some ethical issues.²²

For more than a millennium, it has been, and still is, the Christian faith which more than any other is the factor which unites Europe while at the same it the differences between the three major denominations, Catholicism, Orthodoxy and Protestantism, separate the people of Europe on a deep level. Yet, this level of separation is not as deep as the one between belief and unbelief, a division which runs deeper in the hearts and minds of the people of Europe than any geographical or political boundaries could. At the time being, despite a growing interest and indeed a renaissance of religion in Europe, secularism and relativism remain dominant. One basic premise on which this work is based is that the contemporary “dictatorship of relativism” ²³ is unsustainable in the long run and that it will therefore be necessary to prepare for the time at which the political intention will be there to change the existing laws to the effect that they will be made compatible again with the faith of the people. We therefore have to ask ourselves what can be done to make the legal situation under the Convention as well as in the states parties to it compatible with the demands this faith has with regard to bioethics. It is this question which forms the intention behind this research and it is hoped by the author to not only witness but drive this change, a change which will be at least as fundamental as the storm that swept Europe in the fall of 1989. In fact, it is predicted that after the coming return of the faith to dominance in Europe, the events of 1989 will be seen only as the prelude to the new Europe which is about to emerge. It is the aim of this research project, to contribute a small pebble to the great edifice of the future Europe.

2. Biolaw and Bioethics

Biolaw is the binding codification of rules which are based on ethical considerations. In the context of medicine, the human person and the life sciences this set of ethical rules is referred to as bioethics. In other words, bioethics is the field of ethics which is concerned with ethical questions concerning the human body, health, life and death ²⁴ – or more generally, it is the ethics of the bios, the force within all living creatures which we commonly refer to in abstracto as life, not as the life story of an individual but life as such. Biolaw therefore is based on bioethics. It is in particular in the fields of biolaw and bioethics that the separation of law and morals is challenged by now ethical/legal problems. It is against this backdrop that it has to be kept in mind that biolaw requires also an understanding of the law^{25 26} ’s moral and ethical foundations. Although this thesis is about biolaw rather than bioethics, the ethical foundations of the law will be revisited time and again in order to illustrate the legal aspects.

III. Right to Life

The majority of abortions takes place in the developing world, which highlights the need for the Catholic church to emphasize the church²⁷ ’s “preferential respect due to the poor”, not by embracing socialism but by creating a culture of solidarity which aims at removing the material conditions which give women the impression that they would need to resort to abortion ²⁸ – beginning with the father of the child in question but also including society as a whole, including the international community. The term international community has to include both states as well as the whole of all individuals in the sense of the term (as it was envisaged already almost half a millennium ago by Francisco de Vitoria in the context of the idea of a “totus orbis” in his lecture “De indis noviter inventis”²⁹ ). What is needed is a global, rather than a local approach - an approach for which the Catholic church of all religious institutions is most suited as it is globalized, local and universal. These characteristics give the Catholic church both an opportunity and a responsibility to be outspoken when it comes to human rights, in particular the right to life: ^{30 31} “If there is a future for human rights under non-democratic or only partially democratic regimes, it is likely to be in the direction indicated by the social teachings of the Catholic church, which starts with a strong defense of the right to life.” ³² The Catholic position can be summed up concisely:

“Intentionally killing an innocent person is always wrong. Abortion is the intentional killing of an innocent person. Therefore, abortion is always morally wrong.”³³

[...]

¹ Associate Professor for Fundamental and Human Rights, University of Lapland, Rovaniemi, Finland. The author thanks Ms Laura Šimkutė for proofreading an earlier draft of the text.

² R. Weber-Faß – Staatsdenker der Vormoderne – Klassikertexte von Platon bis Martin Luther, 1st ed., Mohr Siebeck, Tübingen (2005), p. 3.

³ M. Haas – International Human Rights – A Comprehensive Introduction, 1st ed., Routledge, London / New York (2008), p. 10.

⁴ J. Bentham – Anarchical Fallacies (1792), available online at <http://www.law.george town.edu/faculty/lpw/documents/Bentham_Anarchical_Fallacies.pdf> (last visited 31 October 2011), p. L-2, line 40.

⁵ H. L. A. Hart – Are There Any Natural Rights?, in: 64 The Philosophical Review (April 1955), reprinted in J. Waldron (ed.) – Theories of Rights, 1st ed., Oxford University Press, Oxford (1984), p. 79, cited by A. Sen – Die Idee der Gerechtigkeit, 1st ed., C. H. Beck, Munich (2009), p. 390.

⁶ A. Sen – Die Idee der Gerechtigkeit, 1st ed., C. H. Beck, Munich (2009), p. 390.

⁷ United Nations General Assembly Resolution 217 A (III), 10 December 1948; see also J. Marsink – The Universal Declaration of Human Rights: Origins, Drafting, and Intent, 1st ed., University of Pennsylvania Press, Philadelphia (2000).

⁸ On human rights within the context of the United Nations see S. Chesterman / T. M. Franck / D. M. Malone – Law and Practice of the United Nations – Documents and Commentary, 1st ed., Oxford University Press, Oxford and other locations (2008), pp. 448 et seq.; T. G. Weiss / D. P. Forsythe / R. A. Coate / K.-K. Pease – The United Nations and Changing World Politics, 5th ed., Westview Press, Boulder (2007), pp. 135 et seq.

⁹ cf. A. Sen – Die Idee der Gerechtigkeit, 1st ed., C. H. Beck, Munich (2009), p. 383.

¹⁰ Ibid., p. 390.

¹¹ Ibid.

¹² Ibid., there fn. **.

¹³ S. Kirchner - Relative Normativity and the Constitutional Dimension of International Law: A Place for Values in the International Legal System ?, in: 5 German Law Journal (2004), pp. 47 et seq., at p. 62.

¹⁴ J. Raz – The Morality of Freedom, 1st ed., Clarendon Press, Oxford (1986), p. 180, cited by A. Sen – Die Idee der Gerechtigkeit, 1st ed., C. H. Beck, Munich (2009), p. 404 .

¹⁵ kath.net/idea – Söder kritisiert schwankende Haltung der EKD zu PID, in: kath.net, 22 November 2010, available online at <http://www.kath.net/detail.php?id29012> (last visited 31 October 2011).

¹⁶ ECtHR – A, B and C v. Ireland, Application No. 25579/05, Judgment of 16 December 2010.

¹⁷ Archbishop Guido Filipazzi, quoted by: J. F. Hernández – Interview with Archbishop Guido Filipazzi – The Church’s Efficiacy Comes From the Death and Resurrection of the Lord, in: 5 Heralds of the Gospel (2011), No. 44, pp. 24 et seq., at p. 25.

¹⁸ Cf. R. Serron / P. Vals – Kartäuser – Vom Leben in der Wüste, 1st ed., Echter Verlag, Würzburg (2007), p. 10.

¹⁹ J. Ratzinger (the later Pope Benedict XVI), cited by J. Römelt – Menschenwürde und Freiheit – Rechtsethik und Theologie des Rechts jenseits von Naturrecht und Positivismus, 1st ed., Verlag Herder, Freiburg im Breisgau (2006), p. 157, there fn. 111.

²⁰ M. Urban – Warum der Mensch glaubt – Von der Suche nach dem Sinn, 1st ed., Eichborn, Frankfurt am Main (2005), pp. 165 et seq.

²¹ The term “clash of civilizations” dates back to S. P. Huntington – The Clash of Civilizations?, in: 72 Foreign Affairs (1993), No. 3, pp. 22 et seq. This article is also available online at <http://edvardas.home.mruni.eu/wp-content/uploads/2008/10/huntington.pdf> (last visited 14 November 2011). See also the subsequent book, S. P. Huntington – The Clash of Civilizations and the Remaking of World Order, 2nd ed., The Free Press / Simon & Schuster, London (2002).

²² T. Sizgorich – Violence and Belief in Late Antiquity: Militant Devotion in Christianity and Islam, 1st ed., University of Pennsylvania Press, Philadelphia (2009), p. 216.

²³ J. Ratzinger – Homily at the Mass “Pro eligendo Romano Pontifice”, 18 April 2005, available online at <http://www.vatican.va/gpII/documents/homily-pro-eligendo-pontifice_20050418_en.html> (last visited 17 October 2011); Benedikt XVI. – Licht der Welt – Der Papst, die Kirche und die Zeichen der Zeit – Ein Gespräch mit Peter Seewald, 1st ed., Verlag Herder, Freiburg im Breisgau (2010), p. 69.

²⁴ On the relationship between these two terms – “human” and “person” – see F. Ricken – “Mensch” und “Person”, in: K. Hilpert / D. Mieth (eds.) – Kriterien biomedizinischer Ethik – Theologische Beiträge zum gesellschaftlichen Diskurs, 1st ed., Herder, Freiburg im Breisgau (2006), pp. 66 et seq.

²⁵ On the relation between law and morals see also H. Geddert – Abtreibungsverbot und Grundgesetz (BVerfGE 39, 1 ff.), in: K. Lüderssen / F. Sack (eds.) – Vom Nutzen und Nachteil der Sozialwissenschaften für das Strafrecht – Zweiter Teilband, 1st ed., Suhrkamp Verlag, Frankfurt am Main (1980), pp. 333 et seq., at p. 334.

²⁶ K. Lüderssen – Recht, Strafrecht und Sozialmoral, in: K. Lüderssen – Kriminalpolitik auf verschlungenen Wegen, 1st ed., Suhrkamp Verlag, Frankfurt am Main (1981), pp. 39 et seq., at p. 39.

²⁷ The Center for Bio-Ethical Reform – Abortion Facts, available online at <http://www.abortionno.org/Resources/fastfacts.html> (last visited 25 November 2011).

²⁸ Pope Leo XIII – Encyclical Rerum novarum, 15 May 1891, available online at <http://www.vatican.va/holy_father/leo_xiii/encyclicals/documents/hf_l-xiii_enc_15051891_reru m-novarum_en.html > (last visited 8 November 2011).

²⁹ F. de Vitoria – De indis recenter inventis, reprinted in a translation by J. P. Bate under the title The First Relectio of the Reverend Father, Brother Franciscus de Victoria on the Indians recently discovered, in: J. B. Scott – The Spanish Origin of International Law – Francisco de Vitoria and his Law of Nations, Clarendon Press, Oxford (1934), reprinted by The Lawbook Exchange, Union (2000), Appendix A, pp. i et seq.

³⁰ Cf. J. L. Allen – Das neue Gesicht der Kirche – Die Zukunft des Katholizismus, 1st ed., Gütersloher Verlagshaus, Gütersloh (2010), p. 480.

³¹ Cf. ibid., pp. 480 et seq.

³² J. L. Allen – Das neue Gesicht der Kirche – Die Zukunft des Katholizismus, 1st ed., Gütersloher Verlagshaus, Gütersloh (2010), p. 482.

³³ P. Lee – Abortion and Unborn Human Life, 1st ed., 2nd printing, The Catholic University of America Press, Washington D.C. (1997), p. 1.