Ethics, Law and Legislation. The Institutionalisation of Moral Reflection

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Ethics, Law and Legislation. The Institutionalisation of Moral Reflection

BONDOLFI, Alberto

BONDOLFI, Alberto. Ethics, Law and Legislation. The Institutionalisation of Moral Reflection.

Ethical Theory and Moral Practice, 2000, vol. 3, no. 1, p. 27-37

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Ethical Theory and Moral Practice 3: 27–37, 2000.

© 2000 Kluwer Academic Publishers. Printed in the Netherlands.

ALBERTO BONDOLFI (TRANSLATED BY JASON NYE)

ETHICS, LAW AND LEGISLATION: THE INSTITUTIONALISA- TION OF MORAL REFLECTION

ABSTRACT. This paper describes the different dimensions of the relation between moral reflection and legislative processes. It discusses some examples of the institutionalisation of moral reflection. It is argued that the relation between ethics and law is still an actual and relevant question. Ethics also has to reflect on its own role in political life. The paper defends the relevance of a theological perspective on the relation between law and ethics.

In the last part it is argued that the modality of relation between ethics and law depends on the specific character of social domain.

KEY WORDS: applied ethics, church and state, law, politics, theology

Recently there has been in philosophy and theology, as well as in the general public, an intense discussion about the relationship between legislative processes and moral reflection. This is due not alone to the fact that it has now become necessary, for technical reasons, to subject various areas of life to legal regulation (such processes of juridification are well known in the legislative history since its beginnings and to mention them would be almost banal). What is more important is that these processes – whether justly or unjustly put into place – are now almost always seen as ethically relevant. Having said this, a further justification of discussing these processes more explicitly appears to be unnecessary, even though an explanation of these processes is desirable.

Those who in the last few years have observed the development of law in the various European nations and in the international European organisations, have been witness to the increasing importance of ethics.

There is a growing number of laws that require an explicit consideration of ethical aspects, e.g. the introduction of new treatments, or even demand that ethical reflection is institutionalised.

In introductions to, or commentaries on new laws on medical practices such as reproduction technologies, transplantation medicine, or forms of assistance in dying, ‘ethics’ often appears explicitly as motive and reason justifying the new regulation. Besides that, such laws also often prescribe that in particular situations and at particular moments ethical reflection is mandatory.1 Quite often it is not completely clear whether this consideration

1See the Rapport explicatif of the Europe Council as document DIR/JUR (97) 1 from January 1997. For a German translation of the convention on bio-ethics see Das

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of ‘ethics’ has caused a more liberal or a more restrictive new legislation, or if it has served another function. The protagonists of legal regulation (spokesmen of the government or of a legal committee) generally do not themselves want or dare to ethically justify the regulation but restrict themselves to referring to the presence of ethics professors in the appropriate bodies and preparatory committees.2 They seem to think that the presence of such professors sufficiently guarantees that everything took place in ‘an ethical way’. The specific role of the professional ethicist in such bodies is usually not further reflected upon or legitimated by those who commissioned these bodies. Even the conception of the field ‘ethics’ remains more often than not diffuse and is often mistaken for ‘spontaneous morality’.

In politics, attempts are made to institutionalise ethical reflection in governmental bodies. Many countries have created ‘national ethics committees’ or are in the process of doing so.3 Others are considering an institutionalisation of ethical reflection in (fore)political realms in the form of advisory bodies or through the co-operation of ethicists in the assessment of technologies,4 which again is commissioned by the government.

Ethicists often coach such institutionalisation processes and thereby create new professional profiles for philosophers and theologians, which are also in need of critical and fundamental reflection. This is the case when, for example, ethicists from technical universities, firms, or hospitals are engaged to ethically monitor the policies of institutions.

I would like to add to the fore mentioned examples one more case in which ‘ethics’ is seen as a legally necessary review institution. The approval of medications or of a new medical treatment in Europe now needs an additional legitimisation from an ethics committee.5 A European Community statute pertaining to this has in a short period of time lead to the emergence of innumerable ethics committees. As to the composition,

Übereinkommen zum Schutz der Menschenrechte und der Menschenwürde . . . (1998).

The secondary literature on the bio-ethics convention is extensive. Here I will only men- tion Kamber and Rehmann-Sutter (1995).

2For Switzerland see the Begleitbericht zum Vorentwurf für ein Bundesgestez über medizinisch unterstützte Fortpflanzung und eine Nationale Ethikkomission (Humanmedizingesetz) 1995).

3On this see Rapporto al Presidente del Consiglio sui primi due anni si attività del comitato nazionale per la bioetica, 1992; Conseil de l’Europe, 1993; Bompiani, 1997.

4On this topic compare Petermann and Th.-Beckmann, 1992; Baron, 1995; Seiler, 1997.

5The literature on the topic of ethics committees has recently become very extensive and it problematizes in part the meaning and significance of this role of ethics for its self- image and for its legal political role. See among many titles: Van den Daele and Müller- Salomon, 1990; Byk and Mémeteau, 1996; Spriet and Dupin-Spriet, 1997.

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authority, and working methods of such bodies, there is no great clarity.

The presence of ethicists in such a body is expressly demanded, but it is still not clear which role they should play, where their specific competence lies, and how their presence can be legally justified. Still less clearly reflected upon is that a body such as an ‘ethics committee’ de facto administers justice and in doing so is almost equivalent to a court of law, without however, being able to possess the characteristic features and guarantees of such a body. It almost looks as if ethics here does replace law, without an appropriate justification.

All these phenomena, of which the ethics committee is an example, should first be described and compared phenomenologically and sociologically before an explicit ethical evaluation is possible.

Behind the various instances of institutionalising and regulation ethical reflection one actually finds core assumptions about the possible and necessary role of ethics in public discourse and about the optimal relation between the moral and the legislative spheres. These assumptions should be made explicit. It should be prevented that inappropriate expectations are made of ethics and that ethical views worth considering are hastily confused with political or political party options or the opposite, that politically legitimate options are sold as ‘the ethical answer’.

I also want to emphasise that these phenomenological approaches to the relation of law and morality and the descriptive and comparative ones of the sociology of law deserve our attention, without however, confusing them with normative reflection. The variety of traditions and methods within the field of ethics and above all the diversity of the different legislative processes makes this advice perhaps not entirely superfluous.

The specific question about the relation between ethics and legislation seems relatively new. It can however, at the same time be seen as ‘classical’, where the old familiar question about the relation between justice and morals crosses our path wearing a new robe. For this reason, it is important to identify and to question some of the reasons why the issue of the relation between ‘law and morality’ remains actual.6 Assuming that a certain level of consent can be reached about the right relation between ‘law and morality’, it should be considered how this relation is to be politically implemented. Nonetheless, it is anything but clear what the optimal relation between ‘law and politics’ is and how it can be justified.

I would like to ask a few questions about both of these problems and present a few thoughts for further discussion.

6The literature on these problems is immense. Among recent publications see Gründel, 1982.

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1. REASONS WHYTHE ISSUEOF ‘LAWAND MORALITY’ REMAINS

ACTUAL

There are, to begin with the first problem, good reasons to concern oneself with the problem of the relation between law and morality not only phenomenologically, but also fundamentally. Some of these reasons are to be mentioned here:

First of all, it is easy to ascertain that moral problems are especially widely and intensely discussed in public, when the question of the need for legal regulation is raised. To make this clear, one need only think about topics such as abortion, euthanasia, and the death penalty. This observation should not hastily mislead us to put legal relevance and visibility on the same level with ethical relevance. On the contrary, there are ethically important questions which remain for a long time or forever ‘invisible’

for the law (such as i.e., the question of lies in private life),7 as well as certain topics and conflicts with which lawyers are continually confronted (let us think of questions about procedure and jurisdiction), which from an ethical perspective are easy to overcome. This legal visibility or invisibility changes through history or it can take different forms in different places, which makes the perception of the phenomenon more difficult.

Another reason for a thorough analysis of the relation between law and morality can be found in the history of philosophy and theology or also in the controversial theological (‘kontrovers theologische’) of the problem.

The philosophy of law, for example, has a long tradition of reflection about the epistemological status of legal statements. Various linguistic and cultural spheres have, in the past and present century presented different approaches to this subject. Reciprocal cognisance of these approaches would be desirable and necessary.

Thirdly, one should not forget, that legal science both on the level of legal theory law as well as in its various disciplines still has an emanate interest for questions and problems which come from philosophical and theological ethics. The discussion about the fundamental questions between these disciplines has presently lost interest when compared with the 50’s and 60’s, but however there are signs that it is today once again growing.8 Finally, one should take into account that the relation between law and morality is generally difficult to systematise, because every attempt is also connected with a position in legal theory. Parallel to the meta-ethical discussion in moral philosophy during the 50’s and 60’s, there also

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developed in epistemology an intense discussion about the status of legal sentences and legal discourse. These discussions, which did not attach any special meaning to the normative core of law, took place primarily in the northern countries.9 In that time a more defeatist attitude predominated:

legal sentences were considered to be of a more magical nature, such as a

‘tou-tou’ formula or a baptismal formula, which concretely realise what they authoritatively state. In the meantime, the focus of the theory and epistemology of law has shifted. Many moral philosophers and theologians have taken only insufficient notice of this and have too quickly proceeded to the showcase of applied ethics and the parquet of legislative processes.

Here, the ethicists however cannot ‘dance’ enough, when they do not sufficiently occupy themselves with questions from the theory of law. Only through the consideration of legal theoretical aspects ethicists are able to make realistic expectations to the law. Only in this way can it be avoided that ethics itself be unwillingly made into an instrument of fundamentalist groups, which would like to campaign in its name.

These phenomenological observations about the relation between law and morality should be no means deny the need for normative reflection.

On the contrary: the need for a fundamental normative reflection is made more visible and urgent by such a phenomenological approach.

2. LAWAND POLITICS

Of course, each process of legal regulation is pre-eminently tied up with politics. However, this fact does not take the urgency away of reflecting upon the meaning of the attention paid to ethical aspects in the legislative process. One can in fact observe, that – even if power relations impregnate every legislative process – the orientation on ethical values and norms remains an irreducible factor of this complex process. To name one of many examples, one need only think of the complex options in the field of environmental law, which are of theoretical as well as of a practical nature.10 It is necessary to not only think about the appropriate relation between law and morality, but also simultaneously about the relation of morality and politics in the legislative process. In this context, the role of the ethicists in these processes is especially complex. They are not only experts on ethics, they are also politically active citizens of a country and/or been party members. In decision-making processes, which take place in ethical bodies, it

9On this, see above all Mancini, 1986; Brieskorn, 1990.

10For a very competent illustration of the overall problem see Nida-Rümelin and V.d.

Pfordten, 1995.

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is not always easy to draw a clean line between the respective roles and competencies of ethicists. Misunderstandings can also easily emerge as to the essentials of ethics as a philosophical or theological discipline and prejudices about them can further aggravate these misunderstandings. I personally have experienced these problems in various political bodies. Nevertheless, I do not feel to be in the position to present a systematically drawn out solution to these difficulties at this time. I am however, convinced that decisive progress in this matter is reached, when one continually makes an effort to make clear which rule one fulfils: Here I am speaking as an ethicist, now I am intervening as a citizen, I am making this remark as a member of a political party, etc. With such remarks when taking part in legislative processes, I have saved myself from unnecessary enemies and was able to help bring about a certain level of clarity pertaining to this problem.

In political systems with a direct democracy, as in Switzerland, the role of the ethicist in formulating laws is even more complex. Here, the legislative process is public and it is substantially influenced by referenda.

Before each particular vote, each party (here not understood as a political entity, but rather as a group propagating the ‘yes’ or ‘no’ option in a referendum) tries to present and defend their own position as the one that is best ethically justified. Ethicists take sides with both groups and try to defend them by providing ethical arguments. In doing so, the specific features of legal instruments are usually not given enough attention, which causes annoying jumps to conclusions and also leads to strengthening the many prejudices or distorting pictures about what ethics is.

This remark should not be understood as a plea for the political abstinence of moral philosophers and moral theologians. I would rather like to encourage a better perception of the specific possibilities and limits of the legal instruments and make a case for a better understanding of the theory of law and the respective power factors in legislative processes.

A certain sensibility for the different nature of the legal cultures in Europe also belongs to this understanding. It is common knowledge that one differentiates – of course only ideally – between three ‘extended families’ in legal culture: the Roman, the Germanic, and the Anglo-Saxon.

The legal culture even influences the role of courts. This role differs for the interpretation of laws as well as with respect to the settlement of social and private conflicts.

3. LAWAND ETHICSFROMTHE PERSPECTIVEOF THEOLOGY

The ethical and theological evaluation of phenomenon of law has always been a concern for theology. Even though this topic has not been so

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intensively cultivated for a while, there are signs that there has been a growing interest within theological ethics in questions of legal philosophy.

Various aspects of the overall problem are being looked at in depth. The interest for some of these flows from internal theological motives,11 others however, are also relevant for thinkers ‘extra muros theologiae’ and are accordingly also intensively treated by the recent literature in social philosophy and the philosophy of law.12

One must here mention a few of the specific difficulties which theologians are confronted with when they are involved in legislative processes. The general relation between church and state in each individual nation determines the institutional framework within which technology is involved in these processes.13 It is here easy to see that the legal differences between various models, from the state church (as in England) to the verbally declared

‘separation of church and state’ (as in France) is much larger in Europe than elsewhere. Even the European Community, which wants to harmoniously or uniformly regulate many other areas of life or single problems, has until today refrained from recognising or even granting the significance of theological or religious incorporation in the legislative process.

Nonetheless, theologians, more or less ‘in disguise’, are at work in such processes and this on a national as well as an international level. This demands an ethical-theological clarification of the role of the theologian in such processes.14 Without wanting to present a complete set of criteria, I would like to nonetheless mention two extremes and place them in question:

It would be ideological to claim that in such processes theologians are not allowed to participate at all, because their viewpoint is ‘biased’ and incomprehensible for non-believers. Non-theological opinions and positions can also be biased. Individual positions are justified, as long as they are presented and defended argumentatively and no one is forced to accept them. If things could be so easily presented, then it would be easy enough to define the possibilities and limits of theological or ethical- theological reflection in legislative processes. In reality, things look differently while theologians work not only simply as the ‘voice’ of their particular religious tradition, but also are normally independent thinkers who can and are allowed to defend individual standpoints of another kind (such as ones of a political or legal theoretical kind).

11One need only think of the problem of the meaning of law for the life of a church, and this in a Catholic as well as a Protestant context.

12Next to the previously mentioned work of Huber, see also Reuter, 1996.

13For an introduction to the Swiss perspective see Schindler, 1994.

14For a look at the role of theologians in ethics committees see Rippe, 1999, pp. 359–

370.

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The other extreme can also not be accepted at face value. Belonging to a church institution does not in itself give theologians the right to push through certain laws in this institution’s name. The weight of their vote in the respective bodies is to be measured by how convincing their arguments are and should not alone depend on historically granted legal titles.

I believe that there is enough room between these two extreme positions to give the different theological traditions appropriate space to manoeuvre in the legislative processes, if such processes remain transparent and if they are argumentatively constructed or deconstructed.

The co-operation actually occurring amongst theologians in the new bodies of legislation are also producing an impact on internal theological reflection. The experience of the variety of the legal instruments rightly questions a traditional outlook in theology, according to which law performs a repressive function (on grounds of the historical impact of Rom.

13, no coincidental appearance). The new literature on this topic shows a sophisticated sensibility of theological ethics for the various functions of law and for the specificity of individual legal instruments.15 This new sensibility and the ensuing diversification of theological arguments results in creating a plurality of standpoints and also in weakening the automatic link between theological positions and denominational traditions. I would like to mention a small anecdote on this topic from my own personal experience: As the wording of a new constitutional amendment about transplantation medicine was being discussed in the Swiss Nationalrat (the

‘first chamber’ of parliament), two ethicists from both greater churches were given an opportunity to speak. My position and that of my evangelical colleague were worlds apart. This had little to do with our denominational backgrounds a fact which confused the members of our parliament. They had trouble stereotyping us, because they were used to classifying people under traditions and institutions. It took a comprehensive discussion to shed light on the subject.

4. LAWAND MORALITYIN VARIOUS LEGAL FIELDS

The general question about the relation between ethics and legislation presents itself in different legal fields in different ways. Legal regulation does not have the same urgency in each field. Besides that, in determining the appropriate modality of regulation, one should consider the specific features of the issue that is to be regulated. The ethicist must here exercise

15For more on this see the previously mentioned works of Huber and Reuter.

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special caution. One should not mix up the ethical and legal urgency of regulation. In such situations a reaction of indifference or boredom would be inappropriate, as if the choice of an appropriate legal instrument needed to overcome complex conflicts were a purely technical concern of lawyers.

To mention a current example, let us think about the problem of patenting a living organism.16 Of course, there is an urgent necessity of new regulation at least for Europe, if not world-wide. Ethicists which are involved in this discussion, should realise that it may be necessary to decide upon an appropriate legal instrument for regulation, even if all of the fundamental problems are not solved by it.

I am of the opinion that only when ethicists are aware of the fundamental problem of the relation between law and morality in the different fields of law, it will become clear to them how difficult it is to defend a general doctrine about this relation. They need to attempt to understand and evaluate respectively the legal phenomena in its different articulations and modalities. Classical theology, for example, has up until and during the modern age considered law only from the perspective of criminal law. What is important is to (re)activate the ethical reflection for other sectors of law.

As a result, philosophers as well as theologians sometimes diverge in their sensibility for certain topics. In this way, topics such as sexuality, marriage and family, and their ethically appropriate regulation, at least in the European realm, have found no special treatment in the field of philosophical ethics in the past, while traditionally these have been given an intensive and controversial treatment in theological ethics. All of these observations should not lead to building a new front between theological and philosophical ethics. They should however, lead to a new ‘transversal’

research program and, in accordance with this, it should lead to inter- and trans-disciplinary co-operation.

5. LAWAND ETHICSINTHE DIFFERENT FIELDSOF APPLIED ETHICS

Diversification in dealing with the relation between law and morality is necessary not only because the modalities of law are complex and ethical reflection has to account for that. In addition to the plurality of the fields of law, one also has to bear in mind that different sectors of applied ethics call for different modalities of legal regulation. These sectors are actually confronted with entirely different normative difficulties. Legal regulation processes in the field of marriage and family or such in the field of biology

16See Dagognet, 1992; Dessemontet and Perret, 1996.

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or medicine or economics need to be considered from different viewpoints.

Even the appropriateness of argumentation structures can vary according to domains of life. Is for instance, to name a conventional example, an

‘obligatory consultation’ an appropriate institution in the framework of criminal law? Doesn’t it belong to another area of law because of the nature of its ‘object’?

The foregoing considerations which should serve as an introduction to the contributions in this issue, should not leave the impression that the subject is all too complex and will ethically split us apart. This first impression is not entirely incorrect, because the topic actually is and will remain complex. First impressions can however often be misleading. If one thinks a little longer about ethics and legislation, one will be able to see that all problems, direct or indirect, can be traced back to the fundamental category of justice. I do nonetheless admit, that in today’s world, the connection between law and justice does not necessarily make sense to most people. Some legislative processes of modern times are examples that this relation can no longer be taken for granted.

If however, the previously mentioned connection disappears altogether from the horizon, it will also be difficult to appropriately define the relation between ethics and law. The thoughts that I have presented should have made clear that both entities, ethics and law, cannot be reduced to one another:

neither ethics to law, nor law to ethics. However, their entanglement is so tight, that ethics is necessary for conceiving law and law can be seen as the necessary embodiment of ethics. We do not owe this understanding only to the same complex ideas of epistemology, but rather to considering intuitively shared ideas of justice. Understood in this way, one can still say with good conscience: Fiat justitia pereat mundus!

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Institut für Sozialethik Universität Zürich Zollikerstrasse 177 8008 Zürich Switzerland

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