INTRODUCTION
Bioethics and Biolaw are two interconnected studies with extreme relevance in 21st-century ethics. The Barcelona Declaration of 1998 was a final document for policy proposals to the bioethical and biolegal approach in the European Union, “as a philosophical and political agreement between experts in bioethics and biolaw from many different countries”[1]
The history of Bioethics and Biolaw started with the German Weimar Republic in 1931, with the releasing of guidelines for the protection of human beings in medical experiments and treatment. After the World War II, as a response to violations on this field by the Nazi Germany, the Nuremberg Code was created, in 1948, based on the Hippocratic Oath, with its 10 principles of informed consent and absence of coercion, properly formulated scientific experimentation, and the prohibition of unnecessary physical and mental suffering, among others.
In 1964 and 1975, the World Medical Association created the Helsinki Declarations, establishing ethical principles for biomedical research and treatment. The Barcelona Declaration is a breakthrough for proposing ethical principles as a general foundation for the protection of human beings in all kinds of biomedical approaches. [2]
1. BIOLAW AND BIOETHICS
Bioethics is the study of the ethical implications and applications of the health-related life sciences.[3] Bioethics is commonly divided into the fields of Clinical Ethics, Health Policy, Genetics, Neuroethics, Reproductive Ethics, Research Ethics, and Shared-Decision Making, among others.
The concept of ethics comes from two Greek words: ethos, written with the vowel eta – η, which means customs, usages, and gave birth to the word mores, in Latin. It is the complex, the whole of traditional habits and rules in a society.
The second Greek word ethos, written with the vowel epsilon – ε, encompasses the meaning of character, natural dispositions, temperament, the sum of a person’s physical and mental predispositions.[4]
The BIOMED II project, entitled “Basic Ethical Principles in European Bioethics and Biolaw” (1996-1998) established the four basic ethical principles of respect for autonomy, dignity, integrity, and vulnerability as fundamental values for the study and application of Bioethics and Biolaw.[5]
According to Chen, Biolaw goes beyond the scope of bioethics, embracing all areas of law informed by the life sciences, such as health law, environmental law, natural resources law, agricultural law, food and drug law, biotechnology, neuroscience and law (also called neurolaw), law and behavior, and so on. In the end, he calls for an interdisciplinary approach of law and all life sciences, in the field of Biolaw.[6]
Bioethics and Biolaw are the intersections of many health fields such as Medicine, Health Sciences, Environmental Sciences, Biotechnology, with Law and Philosophy. Edgard Morin says, “Even that the human being is at the same time biological, psychological and cultural, an iron curtain separates the brain from the spirit, the biological man from the social man. We desired to reunite the isolated disciplines, which ignore each other.”[7]
2. THE ETHICS OF ALTERITY
The French philosopher Emmanuel Levinas defines ethics as responsibility, to the other and to the world. Says Levinas, “I understand responsibility as responsibility for the other, therefore as responsibility for something I did not do, or that does not concern to me; or that precisely concerns to me, and is seem by me as face.”
The Face (Visage, in French) to Levinas is the other exposed and fragile, who demands from me a response and an action. He says,
Access to the face is straightaway ethical. . . . There is first the very uprightness of the face, its upright exposure, without defense. The skin of the face is that which stays most naked, most destitute. It is the most naked, though with a decent nudity. It is the most destitute also: there is an essential poverty in the face; the proof of this is that one tries to mask this poverty by putting on poses, by taking on a countenance. The face is exposed, menaced, as if inviting us to an act of violence. At the same time, the face is what forbids us to kill.[8]
Levinas’ ethics is created as a counterpoint to neutrality, or indifference. Freitas says, “Levinas’ ethics is the ethics of alterity, the infinite, the wholly other, the person we cannot apprehend in our thoughts and desires. He shows ethics as the infinite obligations and responsibilities of social life.”[9]
To Levinas, “we never exist in the singular. We are surrounded by beings and things with which we maintain relationships. Through sight, touch, sympathy and cooperative work, we are with others.”[10]
Levinas’ philosophy of alterity was born during the Second World War. He was a prisoner of war during the last years of WWII, and spent this time in a camp near Hanover, in Germany. His ethics of responsibility is the counterpoint to the indifference of the normal German citizen at the time toward the suffering of the Jews and other minorities at the hands of the Nazi soldiers. He understood this indifference as the consequence of the individual responsibility: “Since I did not cause it, this is not my fault, I can’t do anything about it, I have nothing to do with it.” To Levinas, this is a fallacy, we are all responsible toward others, in an infinite and asymmetric responsibility, regardless of the cause of their suffering.
In our time of technological divide, where the internet and social media give us an illusion of social interaction in a virtual space, the ethics of responsibility is more important than ever, calling us for a stance in the political, social and environmental spheres. Levinas’ philosophy calls for an ethics of engagement, of participation. According to him, responsibility is to say Hineni, “Here I am”, to other people’s needs. “Thus an unlimited responsibility would emerge in this fear for the other person, a responsibility with which one is never done, which does not cease with the neighbor’s utmost extremity.”[11]
This responsibility is one “in which even what isn’t my business is my business. As Levinas concludes,
Sociality is that alterity of the face, of the for-the-other that calls out to me, a voice that rises within me before all verbal expression, in the mortality of the I, from the depths of my weakness That voice is an order. I have the order to answer for the life of the other person. I do not have the right to leave him alone to his death.
3. TRANSCENDENCE, IMMANENCE, AND ESSENCE
Transcendence indicates a movement of crossing over (trans), but also of ascent (scando).[12] Transcendence leads to a notion of going beyond, of upward movement, or of a gesture that moves beyond itself.
Levinas says, “In order for a true transcendence to be possible, the other should matter to the I, but at the same time remain external to it. Because the other is an individuality by itself, an alterity, a world by itself. The other is something I can’t apprehend and control.”[13]
Transcendence drinks in the idea of infinity. The Infinite is an exceptional idea that has escaped being, and a presence stronger and more venerable than the totality. In Levinas’ thought, the idea of Infinite is related to the responsibility to the “other fellow man.” The face of one’s fellow man is the original locus in which transcendence calls an authority with a silent voice in which God comes to the mind.[14]
This relates to the beginning of the Jewish sacred writings (the Tanach). In the story of Kain and Hevel, God, the transcendence and authority, asks of Kain, after he killed Hevel, “Where is your brother?” And Kain answers, “Am I my brother’s keeper?”
In Levinas’ philosophy, yes, we are our brothers’ keepers, in an ethics of responsibility that goes beyond ourselves to the other, in an infinite and irreplaceable responsibility.
He talks about a “Philosophy that would thus be transcendence itself. Philosophy as union with the One or fusion with it, inscribing itself in an ecstatic itinerary the steps of which we cannot retrace back”.[15]
Transcendence, Immanence, and Essence are philosophical concepts that originated with the philosopher Baruch Spinoza. God in Spinoza is a God of infinite substance, a God of immanence. He says, “The mind’s highest good is to know God, and the mind’s highest virtue is to know God.” Spinoza adds:
As the love of God is man’s highest happiness and blessedness, and the ultimate end and aim of all human actions, it follows that he alone lives by the Divine law who loves God not from fear of punishment, or from love of any other object, such as sensual pleasure, fame, or the like; but solely because he has knowledge of God, or is convinced that the knowledge and love of God is the highest good.[16]
Spinoza’s ethics is closed related to the idea of essence and immanence of God, and love to the fellow man, preferably in a democratic society, where men are free to express their ideas and to strive for joy and personal fulfillment. To him, living in society and seeking the highest good, individually and as a community, is based on their relationship with the God of immanence. “The idea of God lays down the rule that God is our highest good – in other words, that the knowledge and love of God is the ultimate aim to which all our actions should be directed.”[17]
Spinoza also roots his ethics in the prophetic call for social justice in the Jewish Bible. He says that the call for justice is more important than the external acts of formal religions or the ceremonial observances. He cites the prophet Isaiah, saying:
In chapter 1, verse 10, the prophet calls on his countrymen to hearken to the Divine law as he delivers it, and first excluding all kinds of sacrifices and all feasts, he at length sums up the law in these few words: “Cease to do evil, learn to do well; seek judgment, relieve the oppressed.”
To Spinoza, morality must be more than external observances and religious acts. It commands charity, and to help one another. Spinoza says that the government and authority are necessary “to restrain and repress men’s desires and immoderate impulses.” But in no way should absolute repression happen. He quotes Seneca, saying that “Violent governments never last long; the moderate governments endure.”[18] He says that the best government would be some kind of social democracy:
From these considerations it follows, firstly, that authority should… be vested in the hands of the whole state in common, so that every one should be bound to serve, and yet not be in subjection to his equals. … Secondly, laws should in every government be so arranged that people should be kept in bounds by the hope of some greatly desired good, rather than by fear, for then everyone will do his duty willingly.
Lastly, as obedience consists in acting at the bidding of external authority, it would have no place in a state where the government is vested in the whole people, and where laws are made by common consent. In such a society the people would remain free, whether the laws were added to or diminished, inasmuch as it would not be done on external authority, but their own free consent.[19]
To Spinoza, democracy, a government of equals, is the best model for society. He says explicitly:
I think I have now shown sufficiently clearly the basis of a democracy. I have especially desired to do so, for I believe it to be of all forms of government the most natural, and the most consonant with individual liberty. In it no one transfers his natural right so absolutely that he has no further voice in affairs; he only hands it over to the majority of a society, whereof he is a unit. Thus all men remain, as they were in the state of Nature, equals.
Spinoza, living in the Middle Ages, is so modern for his time. From social justice, individual rights, ethics of responsibility, he goes to preach for the freedom of speech and liberty to be who he is, and to strive for his own good and the highest good of the society he lives in. He speaks about this freedom:
I have thus shown: _I. That it is impossible to deprive men of the liberty of saying what they think. II. That such liberty can be conceded to every man without injury to the rights and authority of the sovereign power, and that every man may retain it without injury to such rights, provided that he does not presume upon it to the extent of introducing any new rights into the state, or acting in any way contrary to the existing laws. III. That every man may enjoy this liberty without detriment to the public peace, and that no inconveniences arise therefrom which cannot easily be checked. IV. That every man may enjoy it without injury to his allegiance. V. That laws dealing with speculative problems are entirely useless. VI. Lastly, that not only may such liberty be granted without prejudice to the public peace, to loyalty, and to the rights of rulers, but that it is even necessary for their preservation.
Coming from someone who was condemned as a heretic at the age of 24, and expelled from his community and his family for the crime of speaking his mind and fighting for liberty and freedom of speech, it is quite extraordinary the level of coherence and integrity Spinoza conducted his life in agreement to his philosophical thoughts.
In Spinoza’s understanding, ethics is intrinsically connected to religion, or to the love of God, as he puts it. As a scientist and philosopher, he saw no conflict between science and religion, because religion is based upon science. “There is a conflict only between science and superstition.”
Talking about the essence and immanence of God, Spinoza says, “God, or substance consisting of infinite attributes, each one of which expresses eternal and infinity essence, necessarily exists.”[20]
All things which are, are in God and must be conceived through Him and therefore He is the cause of the things which are in Himself. Moreover, outside God there can be no substance, that is to say, outside Him nothing can exist which is in itself. God, therefore, is the immanent, but not the transitive cause of things.
………………………………
The infinite intellect comprehends nothing but the attributes of God and His modes. But God is one.[21] Therefore the idea of God, from which infinite numbers of things follow in infinite ways, can be one only.
In the end, Spinoza says that Eternity is the very essence of God. And as our mind conceives itself in the form of eternity, it reaches the knowledge of God and the eternity that surrounds Him and is part of Him. And in the end, the mind and the body are conceived through Him. To Spinoza, joy is the passage to greater perfection, and blessedness consists of being endowed with perfection itself.[22]
Spinoza’s ethics is a call for justice. He despises the ambition and unscrupulousness that transform religion and morality from charity, and doing good, to “spreading discord and propagating insensate hatred disguised under the name of zeal for the Lord, and eager ardor.” He concludes:
In a well-ordered state where justice is administered every one is bound, if he would be accounted just, to demand penalties before the judge, not for the sake of vengeance, but in order to defend justice and his country’s laws, and to prevent the wicked rejoicing in their wickedness.
4. THE AGE OF NEW RIGHTS
The Italian philosopher and jurist Norberto Bobbio is considered to be one of the Fathers of the Human Rights in our generation. Bobbio was a strong advocate of the rule of law, the separation and the limitation of powers, and opposed any form of anti-democratic and authoritarian government, be it from the left or the right political sides.
In his book The Age of Rights, he states:
The recognition and protection of human rights are the foundation of modern democratic constitutions… If human rights are not recognized and protected, there is no democracy, and without democracy, the minimal conditions for a peaceful resolution of conflicts do not exist… Democracy is a society of citizens, and subjects become citizens when they are recognized as having certain fundamental rights. There will be stable peace, a peace which does not have war as its alternative, only when there are citizens not of this or that particular state, but of the world.[23]
Bobbio always fought for “the respect for human rights and fundamental liberties”[24], and he saw human rights as natural, universal and inalienable rights. The modern history of universal rights began with the philosopher Locke, during the time of other important thinkers on the issue, such as Rousseau, Montesquieu, and Hobbes.
The English philosopher John Locke proposed the existence of natural rights which are "life, liberty, and estate", and argued that these fundamental rights could not be surrendered to the government in the social contract, as Rousseau proposed. Locke’s ideals led to the American Declaration of Independence, in 1776, and the French Revolution in 1789. The American Declaration of Independence states, “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.”
In the same line, the French Declaration of the Rights of Man and of the Citizen, in 1789, assured, “Men are born and remain free and equal in rights. Social distinctions can be founded only on the common good. The goal of any political association is the conservation of the natural and imprescriptible rights of man. These rights are liberty, property, safety and resistance against oppression.”
In the 20th century, after the Two World Wars, the recently created United Nations elaborated the codes of law of the International Humanitarian Law and the International Human Rights Law. On December 10th, 1948, they created the Universal Declaration of Human Rights, the first step in the process of creation of the International Bill of Human Rights, completed in 1966.
According to Bobbio, “The most fundamental of all these liberties is religious freedom.” [25]Religious freedom is the result of religious wars and the struggles against absolutism:
The poor demand from the authorities not only recognition of personal freedom and negative freedoms, but also protection against unemployment, basic education to overcome illiteracy, and gradually further forms of welfare for sickness and old age – all needs which the wealth can provide for themselves.
Human rights are traditional divided into three generations of rights, a classification initially proposed by the Czech jurist Karel Vasak at the International Institute of Human Rights in Strasbourg, in 1979. He based this division on the three pillars of the French Revolution: liberté, ègalité and fraternité. [26] The first generation of human rights encompasses the so-called “negative rights” because they serve to protect the individual from the excesses of the state. They require the government to restrain from invading them, to protect them. They are connected essentially with Liberty and are civil and political rights in nature. First generation rights are the right to life, equality before the law, freedom of speech, freedom of religion, the right to a fair trial, and voting rights, among others.
The second generation of rights is connected to Equality and began their recognition after the Two World Wars. They are called positive rights because they need the action of the government to be instituted. They need the government to act in their favor. They are economic, social, and cultural rights. They guarantee equal conditions and treatment to all citizens and include the right to be employed in just conditions, the rights to food, housing and healthcare, the rights to a safety social net, such as social security and unemployment benefits, and many others.
The rights connected to Fraternity belong to the third generation of rights. They go beyond the civil and social life, and are born of the postmodern times, with their demands, and include environmental rights. They are international rights, meaning they need the concerted effort of all nations to be enforced. They include the right to self-determination, the right to economic and social development, the right to a healthy environment, the right to clean water and clean air, communication rights, the right to participation in cultural heritage, the right to sustainability, and so on.
Norberto Bobbio proposed a fourth generation of rights, dealing with the results of biological research and the ability to manipulate an individual’s genetic identity. These rights are connected to Bioethics and Biolaw. As Bobbio says, “they arise from the increasing power of one man over another, the inevitable consequences of technical progress which increases man’s ability to dominate nature and other men. This progress … creates new threats to individual freedom.”[27]
This fourth generation of rights includes the limit to biological research, protection of genetic identity (data), the rights of privacy, internet rights, and many others, which arise from the increasing power of the technological world. Bobbio said, “The critical problem facing our times was not one of finding fundamental principles for human rights, but that of protecting them.”[28]
Bobbio quotes Kant, saying that his idea of prophetic history “show(s) how the importance of human rights in current political debate is a sign of the times.”[29] He says that in our times, more than ever, the fight for the recognition and protection of human rights everywhere should go on and intensify. The Universal Declaration of Human Rights states “the recognition of the innate dignity of all members of the human family and their equal and inalienable rights constitutes the foundation for freedom, justice and peace in the world.”[30]
The Universal Declaration of Human Rights and other Declarations of Rights, like the Declaration of Rights of Virginia, are political documents, not philosophical ones, which confirm the inherent and inalienable rights of human beings. The Declaration of Virginia, written in 1778, states: “All men are by nature equally free, and have some inherent rights of which they cannot deprive their descendants through convention or entering society.”
The second generation of rights, the so-ca lled “social rights”, such as the right for public education and the right to work, first appeared in the first section of the French Constitution, in 1791, and later in Articles 21 and 22 of the Declaration of rights, written in June 1793. Later they appeared in modern constitutional history with the Weimar Constitution. This Constitution, also named The Constitution of The German Reich, governed Germany during the Weimar Republic, from 1919 to 1933, and was theoretically in effect during the Nazi era. It constituted the German government as a democratic parliamentary republic with a legislature elected under proportional representation, and established the right to vote at 20 years of age and beyond.
On his writings about social rights, Bobbio states the importance of “the right to work and its protection in various ways (the labor rights), such as the right to a fair wage, the right to an appropriate rest, the defence of women and children, and it called the intervention of the state” to recognize and to protect these rights. They follow the first generation of rights, the individual rights, which includes “the right to life, followed by the right to grow in a united family, the right to develop one’s own intelligence and liberty in the search and knowledge of truth, the right to participate in work, the right to form a family freely, and finally the source of all the previous rights, the right to religious freedom.[31]”
All these rights came into existence as a defense to Power, “from every form of Power”, be it religious power, political power, and economic power. They are a frame that limits the extension of power the government and the state may use against its citizens. In our postmodern age, the third generation of rights came together with Bioethics and Biolaw as a reaction to the increasing power of those who control scientific discoveries and applications. As Francis Bacon said, “science is power.”[32]
The scientist and humanist Albert Einstein wrote:
In talking about human rights today, we are referring primarily to the following demands: protection of the individual against arbitrary infringement by other individuals or by the government; the right to work and to adequate earnings from work; freedom of discussion and teaching; adequate participation of the individual in the formation of his government. These human rights are nowadays recognized theoretically, although, by abundant use of formalistic, legal maneuvers, they are being violated to a much greater extent than even a generation ago.[33]
This third generation of rights, related to Fraternité, follows the danger created by scientific development and technological progress to life, liberty, and security. They include the right to live in an unpolluted environment, which gave origin to the ecological movements around the world; the right to privacy, which fights against the ability of public organizations to store information about the daily life of citizens, therefore controlling and following their behavior without their knowledge; and lastly the right to the integrity of a person’s genetic heritage, in response to scientific research and genetic studies. Those new bioethical, environmental, and technological rights confirm the fact that “Human rights now constitute a new world ethos[34]”.