Introduction to the Origins of Biolaw. A European Perspective

Introduction to the Origins of Biolaw - A European Perspective ^[1]

Stefan Kirchner^[2]

1. Introduction

In a society which practically values commercial productivity above almost all else, the right to life and human dignity of the weak, sick and infirm is increasingly at risk. This includes not only employers who financially support freezing eggs and artificial insemination (so called “social freezing”^[3] ) but also the idea of abortion as a human right even in legal systems where the law does not recognize it as a right or even outlaws it or also a widespread positive view of euthanasia, which shows parallel aspects, culminating - at least so far - in the change to Belgian law to actually allow euthanasia of children despite their inability to make such decisions for themselves.^[4] Again and again, human beings are being turned into mere objects by others. But that is the phrase employed in German law^[5] in order to explain the legal content of Article 1 of Germany’s Federal Constitution, the Grundgesetz.^[6] After I have argued elsewhere that there can be a role for values,^[7] indeed for religious values,^[8] in international law, specifically in international human rights law^[9] and biolaw,^[10] it will be shown in this article that natural law conceptions and specifically Catholic notions of the value of the human being played an important role in shaping our modern understanding of human dignity and at the beginning of biolaw as an academic discipline. While it would go beyond the scope of this paper to elaborate on all sources of and contributions to biolaw, be they secular, religious, philosophical etc., it is hoped that at least the text will provide the reader with a better understanding of this particular aspect of the development of biolaw.

2. Human Dignity

Human dignity can be understood not merely as a right but standing outside (man-made) legal system but being part of the natural condition attaching to every human being by virtue of being human. This concept relates closely to the idea of natural law that every human being is inherently valuable. Human dignity is an inherent feature of being human.^[11]

The legal concept of human dignity is at the core of international biolaw,^[12] although international human rights law does not define what human dignity actually means.^[13] Despite the open nature of the term,^[14] human dignity is a term which can be used in a legal sense.^[15]

In his 2011 book “Die Sakralität der Person” (the Sacredness of the Person),^[16] Hans Joas has described how the experience of human rights violations has led to an improved status of the human being.^[17] This improvement is not only limited to law (Joas refers in particular to changing attitudes in criminal law^[18] ) but to a general respect of the human being which has achieved an extralegal status. But despite the condemnation of the worst crimes of against human rights in both domestic and international law, massive human rights violations are committed. The question is then - where does the understanding that the human being is inherently valuable come from? Why is there still this idea of the fundamental value of human life - despite everyday violations of the dignity of the human person through murder, hunger, poverty? In particular in biolaw this question has to be asked because it is hear that we deal with those who can least protect themselves, the old, infirm, the sick and the unborn. But often law fails them because national laws often exhibit only a half-hearted approach at protecting the weak. Would human dignity be taken seriously, more emphasis would be given to single mothers rather than on abortions, more on hospices and care than on euthanasia, more on research and development aid. While there seems to be some disconnect between local law and human dignity, this disconnect is usually not complete, at least not in legal systems in which human rights play a role. This is the case e.g. in the states which are parties to the European Convention on Human Rights (ECHR),^[19] which to date has been ratified by 47 states.^[20] But obligations based on international law alone would not be sufficient to explain the continued importance of human dignity as a legal concept. While for example the ECHR is very much based on the idea of human dignity, it does not contain a clause which would parallel the aforementioned human dignity clause of Article 1 paragraph 1 of Germany’s Grundgesetz. For the idea of human dignity to persist in a highly material and money-oriented society not only as a philosophical concept but with legal relevance, it has to have strong origins which transcend political systems and day-to-day legislative efforts.

3. Catholic Approaches: Natural Law and Bioethics

The idea of human dignity which is inherent in every human being can be traced back to the concept of Natural Law, which in turn has its origins in Jewish and Christian faith.^[21] From a Christian, specifically a Catholic perspective, “Natural Law is based on the natural, inherent, connection which exists between all created beings, in this case, between all human beings. Because this connection is a consequence of the fact that humanity has been created – from the perspective of believers – by God. From a Christian perspective it is also God who is the ultimate reason for the existence of Natural Law.”^[22]

That human dignity is enjoyed by virtue of being human also means that there can be no discrimination between human beings. In other words, there is no “human hierarchy”.^[23] The idea of equal human dignity has long been held by the Catholic church:

“Only the recognition of human dignity can make possible the common and personal growth of everyone […]. To stimulate this kind of growth it is necessary in particular to help the least, effectively ensuring conditions of equal opportunity for men and women and guaranteeing an objective equality between the different social classes before the law. Also in relations between peoples and States, conditions of equality and parity are prerequisites for the authentic progress of the international community. Despite the steps taken in this direction, it must not forget that there still exist many inequalities and forms of dependence. Together with equality in the recognition of the dignity of each person and of every people there must also be an awareness that it will be possible to safeguard and promote human dignity only if this is done as a community, by the whole of humanity. Only through the mutual action of individuals and peoples sincerely concerned for the good of all men and women can a genuine universal brotherhood be attained; otherwise, the persistence of conditions of serious disparity and inequality will make us all poorer.”^[24]

[...]

^[1] This text is up to date as of 9 November 2014.

^[2] Email: stefan.kirchner@humanrightslawyer.eu.

^[3] Brigitte Osterath, Apple and Facebook's 'social freezing' may be problematic, in: Deutsche Welle, 16 October 2014, http://www.dw.de/apple-and-facebooks-social-freezing-may-be-problematic/a-17999578, last visited 9 November 2014.

^[4] Eugene Kontorovich, What Belgium’s child euthanasia law means for America and the Constitution, in: Washington Post, 13 February 2014, http://www.washingtonpost.com/news/volokh-conspiracy/wp/2014/02/13/belgiums-kiddie-euthansia-law-and-roper-v-simmons/, last visited 9 November 2014.

^[5] See e.g. Federal Constitutional Court, Case No. 1 BvR 357/05, Judgment of 15 February 2006, https://www.bundesverfassungsgericht.de/entscheidungen/rs20060215_1bvr035705.html, last visited 9 November 2014, para. 37.

^[6] Basic Law for the Federal Republic of Germany, in: Federal Gazette 1949, 1, English translation at http://www.gesetze-im-internet.de/englisch_gg/basic_law_for_the_federal_republic_of_germany.pdf, last visited 9 November 2014.

^[7] Stefan 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. 47-64, http://www.germanlawjournal.com/pdfs/Vol05No01/PDF_Vol_05_No_01_47-64_European_Kirchner.pdf, last visited 9 November 2014.

^[8] Stefan Kirchner, Turning Religious Values into Law Through the Language of Human Rights: Legal Ethics and the Right to Life Under the European Convention on Human Rights, in: 5 Baltic Journal of Law and Politics (2012), Issue 1, pp. 70-98, http://www.degruyter.com/dg/viewarticle.fullcontentlink:pdfeventlink/$002fj$002fbjlp.2012.5.issue-1$002fv10076-012-0004-0$002fv10076-012-0004-0.pdf?t:ac=j$002fbjlp.2012.5.issue-1$002fv10076-012-0004-0$002fv10076-012-0004-0.xml, last visited 9 November 2014.

^[9] Ibid.

^[10] Stefan Kirchner, Natural Law as Biolaw, in: 20 Jurisprudencija (2013), pp. 23-39, https://www3.mruni.eu/ojs/jurisprudence/article/download/428/394, last visited 9 November 2014.

^[11] Friedo Ricken, “Mensch” und “Person”, in: Konrad Hilpert / Dietmar Mieth (eds.), Kriterien biomedizinischer Ethik - Theologische Beiträge zum gesellschaftlichen Diskurs, 1st ed., Herder, Freiburg im Breisgau, 2006, pp. 66-86, at p. 69.

^[12] Roberto Andorno, Principles of international biolaw - Seeking common ground at the intersection of bioethics and human rights, 1st ed., Bruylant, Brussels, 2013, p.41.

^[13] Ibid., p. 43.

^[14] Ibid., p. 46.

^[15] See ibid., p.45.

^[16] Hans Joas, Die Sakralität der Person, 1st ed., Suhrkamp Verlag, Berlin, 2011.

^[17] Ibid., pp. 108 et seq.

^[18] Ibid., p.107.

^[19] Convention for the Protection of Human Rights and Fundamental Freedoms, European Treaty Series No. 5, https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=2&cad=rja&uact=8&ved=0CCkQFjAB&url=http%3A%2F%2Fwww.echr.coe.int%2FDocuments%2FConvention_ENG.pdf&ei=liZfVJeAG8i3OMDfgeAN&usg=AFQjCNGQk4wq3OGSUmdbr8416ZvmW4h6Iw&sig2=365-KDSHU5HtorBZbLi8bg&bvm=bv.79189006,d.d2s, last visited 9 November 2014.

^[20] Council of Europe, List of declarations made with respect to treaty No. 005 - Convention for the Protection of Human Rights and Fundamental Freedoms, Status as of: 9/11/2014, http://conventions.coe.int/Treaty/Commun/ListeDeclarations.asp?NT=005&CM=&DF=&CL=ENG&VL=1, last visited 9 November 2014.

^[21] On the religious background see Heike Baranzke, Heiligkeit des Lebens. Eine Spurensuche, in: onrad Hilpert / Dietmar Mieth (eds.), Kriterien biomedizinischer Ethik - Theologische Beiträge zum gesellschaftlichen Diskurs, 1st ed., Herder, Freiburg im Breisgau, 2006, pp. 87-111, at pp. 90 et seq.

^[22] Stefan Kirchner, Natural Law as Biolaw, in: 20 Jurisprudencija (2013), pp. 23-39, https://www3.mruni.eu/ojs/jurisprudence/article/download/428/394, last visited 9 November 2014, at p. 29. Please note that in that earlier text I was somewhat unclear with regard to the origin of Natural Law, in saying that is was not “divine law” (ibid., p. 29). This was meant to say that only God is divine. The phrase I had used in the earlier text is unfortunate as Natural Law - from a Catholic perspective - has its origins in God (see Norbert Hoerster, Ist Gott unverzichtbar für die Moral?, in: Peter Kemper / Alf Mentzer / Ulrich Sonnenschein (eds.), Wozu Gott? Religion zwischen Fundamentalismus und Fortschritt, 1st ed., Verlag der Weltreligionen, Frankfurt am Main / Leipzig, 2009, pp. 59-71, at p. 60 but see also ibid., p. 71) and that in so far Natural Law can also be referred to as “divine and natural law”, a term which, as I had overlooked when writing the earlier text, is also the phrase employed by in the Pastoral Constitution on the Church in the Modern World Gaudium et Spes of 7 December 1965, http://www.vatican.va/archive/hist_councils/ii_vatican_council/documents/vat-ii_cons_19651207_gaudium-et-spes_en.html, last visited 9 November 2014, No. 89, to which reference is made in No. 1955 of the Catechism of the Catholic Church, http://www.vatican.va/archive/ENG0015/__P6U.HTM, last visited 9 November 2014. While it was far from me to deny the divinity of the origin of Natural Law, the narrow understanding of the term “divine” (as only applying to God) I had used in the earlier text can in so far be confusing. Natural Law is “divine” in the sense of the term employed in Gaudium et Spes and the Catechism of the Catholic Church.

^[23] Michael Coren, Why catholics are right, 1st ed., McClelland & Steward, Toronto, 2011, p. 158.

^[24] Pontificial Council for Justice and Peace, Compendium of the Social Doctrine of the Church, http://www.vatican.va/roman_curia/pontifical_councils/justpeace/documents/rc_pc_justpeace_doc_20060526_compendio-dott-soc_en.html, last visited 9 November 2014, No. 145.