Law, Politics, and Morality: European Perspectives III: Ethics and Social Justice [1 ed.] 9783428509461, 9783428109463

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Schriften zur Rechtstheorie Heft 215 / III

Law, Politics, and Morality: European Perspectives III Ethics and Social Justice

Edited by Jordi Ferrer Beltrán Susanna Pozzolo

asdfghjk Duncker & Humblot · Berlin

JORDI FERRER BELTRÁN / SUSANNA POZZOLO

Law, Politics, and Morality: European Perspectives III Ethics and Social Justice

Schriften zur Rechtstheorie Heft 215 / III

Law, Politics, and Morality: European Perspectives III Ethics and Social Justice

Edited by Jordi Ferrer Beltrán Susanna Pozzolo

asdfghjk Duncker & Humblot · Berlin

Bibliographic information published by the Deutsche Nationalbibliothek The Deutsche Nationalbibliothek lists this publication in the Deutsche Nationalbibliografie; detailed bibliographic data are available in the Internet at http://dnb.d-nb.de.

All rights reserved. No part of this book may be reproduced, translated, or utilized in any form or by any means, electronic or mechanical, without the expressed written consent of the publisher. # 2007 Duncker & Humblot GmbH, Berlin Typesetting: Klaus-Dieter Voigt, Berlin Printing: Berliner Buchdruckerei Union GmbH, Berlin Printed in Germany ISSN 0582-0472 ISBN 978-3-428-10946-3 Printed on no aging resistant (non-acid) paper ∞ according to ISO 9706 *

Internet: http://www.duncker-humblot.de

Contents Susanna Pozzolo Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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I. Genetics and Scientific Progress Olivier Leclerc Scientific Expertise and Judicial Decision Making: Comparative Insights . . . .

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Paolo Donadoni Some Preliminary Questions Concerning Human Cloning . . . . . . . . . . . . . . . . . .

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Pascal Lokiec Some Comments on the Law of Biomedical Research . . . . . . . . . . . . . . . . . . . . .

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Macario Alemany Paternalism and Bioethics . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Silvina Alvarez Medical Care and Patients’ Decision Making: The Building of the Options in a Situation of Dependency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Pablo de Lora Is there a Right to Health Care? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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II. Poverty, Fundamental Rights and Social Justice Paula Gaido Do the Poor have the Duty to Obey the Law? . . . . . . . . . . . . . . . . . . . . . . . . . . . . 121 Susanna Pozzolo Poverty and Protection of Constitutional Liberties: Two Irreconcilable Perspectives? Freedom from Poverty as a Fundamental Right . . . . . . . . . . . . . . . . . 131 Marisa Iglesias Vila Poverty and Humanity: Individual Duties and the Moral Point of View . . . . . . 155 Francesco Biondo Poverty as Failed Exercise of Rights? Some Theoretical Problems . . . . . . . . . . 191

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Contents

Isabel Fanlo Cortés Poverty and Access to Justice: Rethinking Legal Aid Models . . . . . . . . . . . . . . 205 Victoria Roca Rights and Borders. Alienage as an Immutable Characteristic: Current Practices on Alien Exclusion under Scrutiny . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 229 Eszter Csernus HIV Status in Hungarian Law and Practice – Immigration, Social Care, Education, and Employment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 253 About the Authors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 259

Introduction The volume Ethics and Social Justice closes the series Law, Politics, and Morality: European Perspectives. This third volume collects the papers presented at the third meeting of the series PhD Euroconferences in Legal Philosophy, founded by the European Commission, held at the University of Genoa (Italy) between 13–15 November 2003, in which approximately sixty European scholars participated. This series was inserted into the more ambitious project to contribute to the development of the E.R.A. (European Research Area) and to the discussion on increasing political activities within the European Union. The three congresses were an important occasion which enabled us to make the point of research integration in the field of Legal Philosophy, its lines and perspectives. After a debate on political philosophy and legal theory, we discussed some of the most important aspects of moral philosophy connected to law. Since the 1980s the EU institutional and social models have been under discussion. The globalization process has quickened the debate, above all, due to the increase in world economic competition. From this, the ethics thematic has become central in the future development of the European social model. We selected two important subjects: scientific progress and poverty. The first part of the volume presents essays collected under the title Genetics and Scientific Progress. The complexity of the theme is such that we did not expect to be able to provide an exhaustive or complete treatment. Rather, we tried to offer both a contracted and a deeper look at some particularly important aspects. Scientific progress poses ethics questions that, although not new, are extremely urgent because of the greater knowledge that allows specific and particular interventions on human beings and on nature in general; it will also enable us to determine sudden, sometimes unexpected, and fast changes reducing the time needed by the whole natural system to adapt to them. The interplay between law and science is increasingly illustrated by many debates ranging from biological filiations to global warming, and it is particularly evident also in the legal process. Olivier Leclerc (Scientific Expertise and Judicial Decision Making: Comparative Insights) moves from two investigative lines on the relationship between science and law. From the first line, law and science are to be thought of as forming two separate spheres: science is supposed to provide a true account of the world, whereas legal rules are deemed to

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regulate human behaviour. This view is based on the idea of the continuous adaptation of law to science, the legal system remaining closely connected to science will increase the rationality of its own operations. From the second line, the interplay between science and law might be conceived in a much less harmonious way, the legal system is here expected to provide an efficient protection against a hegemonic scientific development. In this debate, Olivier Leclerc takes a position through a comparative analysis of the French and US legal systems. The relationship between law and scientific progress is, obviously, manifold and several. One of the biggest fields where the debate is uncertain and most animated is bioethics: the advanced research on human beings, the genoma, and the possibility of cloning human beings. Paolo Donadoni (Some Preliminary Questions Concerning Human Cloning) tries to make clear one discourse that is quite confused also within the specialist literature. Donadoni, through a careful linguistic analysis of the cloning debate, asks: How can the notion of therapy be extended? What is the biological/temporal point (of no return) that determines the reproductivity of the human nuclear cloning process? Biomedical research is a challenge for the theory of law, being on the border between empirical science and legal order, it puts forward problems on both sides. On the legal side, Pascal Lokiec (Some Comments on the Law of Biomedical Research) points out the originality of the biomedical legislation compared with classical private law. Since the aspects raised from this scientific area are particularly problematic, it seems somewhat difficult to leave this field to contractual freedom, as it is not completely regulated by authority. It is an interesting case of soft law, that is, a sort of self-regulation, where the final decision to carry out research is left to a committee essentially composed of experts, who make their judgment according to broad criteria defined either by the State or scientific authorities. From this, Lokiec also investigates the difficulties in comparing different legal systems: How can a comparison be carried out where the law states indeterminate standards or contents itself with delegating decision-making power to local committees? Scientific progress magnifies the possibility and maybe the necessity of authority intervention in individual choices. Paternalism’s theme, already extensively examined by political philosophy, becomes central when analysing the matter of medical treatment. Macario Alemany (Paternalism and Bioethics) asks after the necessary and inescapable degree of paternalism present in medical practice. Starting from this need, Alemany inquires about the possibility of identifying a procedure for justifying paternalism, since this is one of the main problems inherent in bioethics. In front of the critics against “principlism” – that in an important number of cases do not provide true action guides and that, in addition, blur the distinction between norms and moral ideals – Alemany vindicates one idea presented by Manuel Atienza and directed to show possible fruitful connections between legal philosophy and bioethics.

Introduction

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Silvina Alvarez (Medical Care and Patients’ Decision Making: The Building of the Options in a Situation of Dependency) notes that, to avoid paternalistic performances, the doctrine of informed consent has been developed. Physicians cannot make any decision about which treatment to undertake unless the patient has previously consented to it on the basis of adequate information. To be informed about different options and to be able to effectively undertake them is a condition of personal autonomy, and this is the aim of informed consent: giving the patient the information necessary to establish her options and to act on the basis of self-determination. But, Alvarez asks, which is the kind of information physicians can transmit to their patients? Is medical information about diagnosis and possible treatments enough for the non-physician, non-experienced patient to make a decision about which is the best treatment for her? Can the perspective of the patient be as informed and complete as to achieve the decision she would achieve in an ideally informed situation? Alvarez examines some elements involved in the patient-physician relationship: personal autonomy, the notion of informed consent and the interconnection between these elements. From the possibility of the intervention on an individual’s health through social policies, first of all that in the health service and environment matters, can we derive a right to health? This is what Pablo de Lora asks (Is There a Right to Health Care?). Onora O’Neill has affirmed that it is reasonable to have the right to health care but not to health, since nobody can make everybody healthy. This right is extremely complex, there are a large number of instruments to allow its satisfaction, and a right to health care seems a right to welfare. Analysing European juridical decisions, de Lora underlines how this right entails negative and positive aspects and from this point he starts to assess the principal objections towards the right to health care. The de Lora essay is closely related to the second part, in fact between the debate on positive and negative rights, poverty matters is an ineludible problem. The second part of the book collects seven essays under the title Poverty, Fundamental Rights and Social Justice. It is easy to understand that the complexity of the themes faced does not allow us to give an exhaustive account. Observing as a whole the collective essays in this second part of the book, we can see an important convergence on the perspectives and the objectives of the scholars. By reading the book we obtain a panoramic view of the biggest problems that today affect our societies (not only Europe) related to the theme of poverty and social justice. The ethical perspective which unites the works can be found, on the one hand, in the preoccupation for the social state erosion, which until now, in different ways and with various outcomes, has overcome the loss of family and community structures contributing to the formation of a wide sentiment of equality in the rights and in the perspectives of life, firstly between European citizens, but also on the general and global plane. On the

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other hand, the works are united also by the preoccupation for the re-emergence of status distinctions, between rich and poor, employed, contractor and unemployed workers, European and non-European citizens, and so on; these distinctions negatively engrave the effectiveness and equality sentiment that are however the basis for the European political system. Poverty and social justice represent a theme charged to presuppositions and consequences, easily recognisable by looking at the globalization debate, the universalism theory, the methods to export democracy and the guarantee of human rights. The universalism ethic and that of human rights, in particular, when connected to the globalization phenomenon – which increases both interdependence between states and the international context, the planetary diffusion phenomenon of new technology able to abolish distances – tend to suggest, sometimes without thinking, the idea of forced implementation of occidental culture throughout our planet, replacing local and native traditions. If we unite this with the word ‘liberalism’, the above-mentioned terms become, in various contexts, synonyms of: ‘reduction to social complexity to the only economic dimension’, ‘free market’, ‘economic internationalization’, ‘social policies emptiness’, and so on. Also for this reason, notwithstanding its diffusion, the human rights doctrine sees today a critical front that claims for cultural particularism and the ethical differences between peoples. We have to note that the critics, at least in part, are justified, if someone had written that the McDonald’s golden arches are a method to prevent conflicts: “no two countries that both have McDonald’s have ever fought a war against each other”. But the debate on these social and economic life aspects does not put problems only outside the European border, the difficulties are also and tragically on the internal plane: How to decline positively the right to freedom of religion? How to conciliate the different cultural traditions inside a common normative space? How to face the tragic distinction between “we/them”, thinking of the peoples who desperately look for safe harbour and to live on the European continent, wishing for a possible life, not only better, but actually possible? How to think and develop the education of new generations who are going to live in such a complex and diversified context? The statistical data on the European trend about poverty are worrying. During the year 2000, in the United Kingdom 20% of the rich possessed 43% of available resources and 20% of the poor availed of only 6.6%. These parameters paradoxically surpass those of countries like Belarus, Croatia and Ukraine. Among the candidate countries who hope to enter the European Union, Turkey, in the same year, saw the upper class (20%) availed of almost one-half of the riches. In addition, the analysis of European society shows a persistent ostracism and discrimination towards women.

Introduction

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The fight against poverty is getting through in education but the data on governmental investment are strongly diversified. Work, or rather unemployment, represents one of the principal poverty causes. Another important element in poverty analysis refers to the level and the quantity of social services offered by public institutions. The theoretical confrontation on these problems has emerged inside liberal thought, that is, in the ambit of the same tradition that proposes the free market as a cure-all for every problem, a critical front which puts under discussion the validity of the US model and emphasizes, in various ways, on the contrary, the need to put attention on the social capital formation, true riches for every society which looks at the future. What always seems clearer is the need to unhook the human rights and human dignity guarantee from economic liberalism: detaching ethics (and social policies) from the free market. It is a need to put more adequate attention on the social justice theme precisely to counteract the increasing peril of inequality, both between individuals and peoples. Of course, the European continent, through the national legal systems, has developed a substantially unique and positive welfare system. This has allowed an interesting human social capital formation that is a social structure endowed by trust, social norms and shared values, informal and formal interpersonal relationship nets, which are able to influence and coordinate individual behaviours favouring collective actions, and allow in this way to reach objectives otherwise unattainable. But the future of the European continent resides also in its ability to evolve this system, and not in its dramatic contraction, favouring and not depressing these riches, made (not without effort and difficulty) over at least two centuries. Poverty, distributive justice and policies are the core of the second part of this volume. Starting from the idea of political ought coming from the social contract, using the Gustav Radbruch formula that the extremely unjust could not be considered law, Paula Gaido’s Do the Poor Have the Duty to Obey the Law? asks which are the conditions of belonging to a political community for individuals. Movements such as the Argentinean Picketer violate the law, or could they be qualified as requests for recognition and the guarantee of rights? So, extreme poverty is a violation of social contract? From John Rawls’s A Theory of Justice, social contract seems to show content with some level of equality; if poverty is allowed the contract would be violated. Susanna Pozzolo’s Poverty and Protection of Constitutional Liberties: Two Irreconcilable Perspectives? Freedom from Poverty as a Fundamental Right offers some arguments for the shaping of the right to freedom from poverty coherent with liberal ethics and liberal political theory. Reconsidering the distinction between negative and positive liberties, Pozzolo underlines their unity on the practical plane, since to exercise negative liberty we need the guarantee of some pre-conditions that, moreover, claim for a global not national consideration. In the globaliza-

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tion era to limit ethics and justice discourse to the national community boundaries is anachronistic, but do we, who own the largest part of world resources, have a moral onus to help the poor? Marisa Iglesias’s Poverty and Humanity: Individual Duties and the Moral Point of View tries to clarify if the fact of inaction towards the starving population is not perceived as a moral fault makes our moral sense immoral. She proposes the adoption of the humanity point of view as a neutral point to answer this question. Iglesias analyses three aspects: i) questions of causal responsibility and compensatory justice, ii) the issues of distributive justice, and iii) the question about what our sense of humanity should require from us. Whilst speaking about poverty it seems obvious to refer to some considerations on Amartya Sen’s work. Francesco Biondo’s Poverty as Failed Exercise of Rights? Some Theoretical Problems stresses the difficulties coming from a definition of poverty based on the lack of resources: poverty is also a failed exercise of individual rights. Biondo underscores as an apparently neutral theory such as that proposed by Sen shows its comprehensiveness and paternalistic aspects. The connection between poverty and the failure of the effectiveness of our rights leads us to consider the access to justice. Isabel Fanlo Cortés’s Poverty and Access to Justice: Rethinking Legal Aid Models analyses different legal models which “have opened the door of justice for the poor”. Fanlo Cortés underlines that the debate on legal aid opens a space to reconsider the lawyer’s role as charged by public functions. This apparent advantage for justice could risk both decreasing the lawyer’s “partiality” and obscuring the fact that this kind of policy only opens the first door to justice. Social justice and poverty are themes closely related to the migration phenomenon. Victoria Roca’s Rights and Borders. Alienage as an Immutable Characteristic: Current Practices on Alien Exclusion Under Scrutiny sees, in the globalization process, the state as the major agent for the human rights case. She debates the classical distinction between alien and citizen, today questionable from a moral point of view, above all considering the causes of migration. Roca suggests putting side by side the traditional political refugee with the economic refugee, underlining the paradoxical guarantee of the right to emigrate without the guaranteed right to be an immigrant. The essay analyses some cases decided by the European Court of Human Rights and tries to identify some conditions of legitimacy to limit the number of immigrants. Eszter Csernus’s HIV Status in Hungarian Law and Practice – Immigration, Social Care, Education, and Employment offers a disconcerting case of human rights violation in Europe and sets down the need to rethink the human rights standards required by the EU. Susanna Pozzolo (University of Brescia)

I. Genetics and Scientific Progress

Scientific Expertise and Judicial Decision Making: Comparative Insights Olivier Leclerc The interplay between law and science is increasingly illustrated by many debates, ranging from biological filiations to global warming. It is barely necessary to emphasize the extent to which this very interplay stands at the core of the legal answer to genetics. This paper focuses on some aspects of the relationship science and law foster. The relationship between science and law has been studied through two main analytical frameworks. (1) According to the main approach, law and science are to be thought of as forming two separate spheres, each of them ruled according to its own principles and producing specific outcomes. Generally speaking, science is supposed to provide a true account of the world, whereas legal rules are deemed to regulate human behaviour. Hence, legal systems would incorporate many goals other than merely truth seeking, such as solving social disputes in a convenient amount of time. This conception emphasizes the ‘culture clash’ (Goldberg, 1994, Foster/Huber, 1999, and Faigman, 2000) that characterizes the relationship between science and law. Accordingly, the relationship between science and law may be conceived in a twofold perspective. One of them is to advocate the continuous adaptation of law to science. What we recognize here is a notion very familiar to jurists, according to whom law will comply with its own requirements only if it remains in a close adequacy with the object it is supposed to regulate. Here also lie the roots of the idea of progress and its relationship with the legal system. Science is seen as an ongoing progressive process. Therefore, if the legal system remains closely connected to it, it will increase the rationality of its own operations. Conversely, the interplay between science and law might be conceived in a much less harmonious way. The autonomous development of science has often been regarded as threatening society. It has been advocated that science would force its own development on society, thus preventing people from developing their own project in life. Hence, the legal system is here expected to provide an efficient protection against a hegemonic scientific development. The progress-

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laden conception is here strongly criticized: the democratically debated legal provisions would reflect a social consensus on how far we want to follow scientific progress. There will be, some say, ‘a right to assess scientific progress’ (Hermitte, 1997, 67–70). (2) I hold that none of these approaches is likely to give an accurate account of the interplay between science and law. Indeed, they both take the divide between law and science for granted. It is my contention that this very border is forged in the interplay itself. When the judge or the legislator is required to pronounce on a scientific issue, he decides, in a more or less explicit way, the criteria scientific knowledge must fulfil to be granted scientific standing in a legal setting. In that sense, ‘the institutional setting of the law shapes the representation of legally relevant scientific claims at many points, beginning with the articulation of standards for what counts as valid science with the legal process. In other words, ideas of truth and ideas of justice are co-constructed in the context of legal proceedings’ (Jasanoff, 1995, xiv). As a result, the interplay between law and science is poorly described as a mere adjustment of law to science. Rather, a legal conception of science emerges from it. This interplay occurs on many occasions. I will focus my attention on the trial, and more precisely on the scientific testimony experts provide to courts. Expertise might be defined as the process in which scientific knowledge is provided to someone in order to help decision making. Hence, expertise is at the core of any decision where scientific knowledge is to be taken into account. It derives from this definition that the framework in which the decision-making process is taking place, and particularly the proceedings it follows, will be of decisive influence on expertise. Scientific expertise in court must then be understood in its relationship to the judicial decision-making process. It is now that the question arises of how the judge would ensure that the scientific knowledge carried by an expert is not corrupted by ignorance or raw fraud. The term that has been coined to designate this insufficient knowledge is ‘junk science’. As the law attributes the label of ‘junk science’, it might be said that the legal system is providing a criterion of science within the limits of legal framework. In that sense, the selection of scientific experts enables the legal system to face the epistemological ‘problem of demarcation’ raised by Sir Karl Popper (1973, 30 ff.). Popper aims at discriminating between what counts as science and what does not. He would then allow science to be immune from any social or metaphysical roots and would concentrate only on the structure of scientific utterances.

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This legal conformation of science is not universal, as reveals a comparison with the legal system of the United States. Both the French and the American systems are facing the problem of demarcation in forging a legal construction of science. A properly legal epistemology is to be seen in legal rules on expertise. Indeed, determining which expert is allowed to testify in court leads to determining what will count as science in the eyes of the legal system. Selecting scientific experts induces a choice on what might be ranked ‘good science’ and what must be termed ‘junk science’. Thus, a plurality of legal constructions of ‘good science’ has to be described. In French law, the scientific validity of an expert’s testimony is certified before the trial (1.), whilst in the United States legal system judges act as gatekeepers for valid science (2.). 1. A ‘Scientific Legality’: A Legal Construction of Science Before a Trial French law’s provisions on scientific expertise involve a legal construction of science. In this case, the selection of scientific experts is largely done before any trial takes place. Within the French legal system, the judge is entitled to commit an expert: the expert does not belong to the court but he is appointed by the court. The legal provision through which this selection of experts prior to a trial is done leads to the certification of what counts as ‘good science’. The legal mechanisms contributing to this legal representation of valid science might be termed ‘scientific legality’. This scientific legality enables the French legal system to address the problem of demarcation between ‘good science’ and ‘junk science’. 1.1. The Official Lists of Court-appointed Experts The selection of scientific experts is mainly done through a list of experts. When they require appointing a scientific expert, the judges suffice with choosing one of them from this list. The appointment of these experts is not compulsory for the judges, who might very well choose an expert outside the lists. Nevertheless, these lists prove to be very effective. Although one could hardly claim to have an exhaustive view of the practice of the courts, statistics show that judges usually pick experts from these lists (Le Toqueux, 1993, 11). Furthermore, in criminal cases the judge can avoid picking the expert from the list only on exceptional grounds and with a special motivation.1 In civil cases,

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Article 157 du Code de procédure pénale.

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although the practice might be very different in each court, judges usually appoint experts from the lists. As a result, the legal provisions on the constitution of the lists contribute to the selection of scientifically relevant experts. Thus, in order to be registered on the list, the scientific experts must show a certified knowledge. 1.1.1. Expert’s Registration on a Court-appointed Experts List Legal provisions determine the qualities an expert must possess in order to appear on a court-appointed experts list. Historically, the expert’s skill was mainly revealed by the diplomas he was required to hold, but the courts were entitled to select them along with their own preferences and criteria. More recently, however, various commissions have been created in order to verify the expert’s competence and, at the same time, proceed to their registration on the list. For example, experts in charge of the identification of people through DNA typing must have been approved by a special commission.2 The candidates must prove to have completed a specific diploma or to have a longlasting experience of that practice. Furthermore, those who apply for registration must demonstrate that they dispose of certain specific materials and property. Equally, a recent statute on the rights of sick persons and on the quality of health care has created a specific list of experts who must be approved by a national commission on medical accidents.3 This Commission is charged to ascertain the scientific knowledge of the experts and then to register them on the list, without allowing any appeal. Not only does the certification of the experts’ knowledge take place before their registration on the list, but, in some specific cases, their competence is also ascertained on a periodical basis. Regarding the experts on the identification of people through DNA typing, a governmental agency4 is charged, among others, to organize application exercises which the registered experts must pass twice a year. The results determine whether or not the experts will remain registered in the following year.5

2 Loi nº 71-498 du 29 juin 1971 (article 6-1), insérée par la loi nº 94-653 du 29 juillet 1994 (articles 16-11 et 16-12 C. Civ.); décret nº 97-109 du 6 février 1997, modifié par le décret nº 2002-931 du 11 juin 2002, JO, 14 juin 2002, art. 5. 3 Loi nº 2002-303 du 4 mars 2002 relative aux droits des malades et à la qualité du système de santé: art. L. 1142-10 et ss du Code de la santé publique. 4 Agence française de sécurité sanitaire des produits de santé: Article L. 761-24 du Code de la santé publique. 5 A statute enacted 11 February 2004 makes compulsory for every expert registered on a list to pass a probationary period of two years before being registered for a fiveyear period. After two years, the skills and experience of an expert is ascertained by a

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Thus, these lists lead to a standardization of the knowledge experts must possess. The registration will then endow their holders with a specific legitimacy. The standardization effect is reinforced by the classification of scientific fields it induces. 1.1.2. The Nomenclature of Scientific Fields The lists are divided into many specialities ranging from medicine, genetic typing, and handwriting identification to fires and explosions. This classification leads to a certification of valid scientific knowledge. It fulfils a performative function. The fields mentioned on the lists are deemed sufficiently reliable to be presented to a judge. The nomenclature of scientific and technical fields used to be left to each court of appeal and to the Supreme Court (Cour de cassation) for civil and criminal matters. This led to a certain diversity among the courts, although some statutes created specific expert categories to be filled in each court.6 In order to keep this diversity within certain limits, a unified nomenclature was issued in July 2002 by the Ministry of Justice in line with the expressed wishes of professional organizations.7 This new nomenclature is currently diffusing throughout the courts and is due to be taken into account shortly. 1.2. The Professionalization of Experts Most of the registered experts are members of professional organizations. These organizations contribute, on the one hand, to the organization of the profession (discipline, deontology, etc.), and, on the other hand, to the standardization of the scientific knowledge of the members. Many of these organizations enact quality guidelines including standardized methods and minimal knowledge to implement. As a result, the certification of scientific knowledge foljoint commission composed of judges and experts (loi nº 71-498 du 29 juin 1971, modified art. 2). 6 I. e.: experts spécialisés en matière de sécurité sociale (article R. 141-1 Code de la sécurité sociale); experts en diagnostic d’entreprise (article L. 813-1 du Code de commerce); experts en biologie chargés de la recherche et du dosage de l’alcool dans le sang (article R. 32 du Code des débits de boissons et des mesures contre l’alcoolisme) . . . 7 Nonetheless, the legal provisions voted in February 2004 are far from fully filling the professional organizations’ expectations. The professional organizations had been pressing strongly on the Government to be granted a monopoly on scientific expertise in the courts. Conversely, professional organizations would have to control more accurately the knowledge of their members. This monopoly was not granted and the law states that judges may freely choose experts from the lists. See Experts, nº 60, 2003, p. 4.

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lows, not only from the procedures used for the establishment of the lists, but also from the professional standards. Hence, as long as a scientific expert is registered on a list and shows the competence required by the legal provisions, he is presumed to be dependable enough to have a say in the trial. Consequently, during the trial, the competence of the expert is hardly discussed, for he is already deemed scientifically competent. Therefore, the expert might only be challenged for the same reasons that the judge would be: he might be challenged for being biased or for entertaining a special relationship with one of the parties. A recent sentence of the Cour de cassation, issued pursuant to Article 6-1 of the European Convention on Human Rights, holds that the list of recusation causes8 is not limitative and that an expert might be challenged if his behaviour had deprived the parties of due process of law.9 This sentence does not substantially change the legal picture, for the recusation of an expert remains closely related to the judgement and not to scientific competence. The scientific legality in the French system hardly leads to a debate on what should count as valid science or what should not. The American system faces the demarcation problem differently. 2. A ‘Jurisdictional Epistemology’: The Judges as Gatekeepers Against ‘Junk Science’ In the US legal system, parties may recruit as many experts as they can afford. According to the Federal Rules of Civil Procedure (rule 26 (b), 4, A): ‘A party may depose any person who has been identified as an expert whose opinions may be presented at trial’. The number of designated experts might be of strong influence in the trial, all the more so if they prove to be famous in their field. This ‘commodification of the expert’ (Jasanoff, 1995, 45) might increase dramatically the price of expert witnessing. The experts are supposed to be neutral toward the case at trial but it is fairly obvious that they would be chosen according to the opinion they will raise in the case at stake. This is termed an advocacy system. Each expert-witnessing is discussed not only by the parties on trial but, more generally, also by every interested person or group. Those who wish to participate in the debate might issue an amicus brief exposing the scientific elements they deem appropriate to solve the case at hand. Furthermore, the judge may hear as many amicus curiae as he would find necessary. For example, when the Supreme Court settled a 8

Article 341 du Code de procédure civile. C. Cass., Civ. 2e, 5 décembre 2002, SA Pasteur Vaccins c. G., Procédures, 2003, nº 37, obs. R. Perrot; JCP, 2003, IV, 1166. 9

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case on euthanasia, the judges heard no less than eighty interested persons and groups. The judge is then providing an explicit balance between the various interests and theories at stake.10 2.1. The Judge’s Gatekeeper Function Unlike in the French legal system, the scientific expert in the US legal system is not selected prior to the trial and his knowledge is not certified beforehand. Consequently, the judge will have to evaluate how reliable the expertise can be. To put it bluntly, the judge may face a situation in which he has to decide whom to trust more: a parapsychologist or a particle physicist (Collins, 1985, 113–128). As a result, the debate on what is considered as reliable scientific knowledge is made visible and is subjected to cross-examination. The American system is then internalizing the process from which the scientific legitimacy of an expert derives. The control of the access of scientific knowledge to the courts is completed by the judge. The judge then has to fulfil a gatekeeper function. Whereas the French system displays a ‘scientific legality’, the American system rests upon a ‘jurisdictional epistemology’. 2.2. The Jurisdictional Criteria for Good Science As the judge is in charge of rejecting ‘junk science’, the courts had to design a criterion to identify what should count as ‘good science’. The criterion in use has long been the commercial marketplace test. It was assumed that as long as an expert could make a living within his profession, he could be reasonably held more competent than the average juror. Nonetheless, this criterion led to unsatisfactory results, for it provided no guarantee of quality, especially in medical cases: a charlatan could very well make a living off the credulity of people. Hence, the question was debated of how the reliability of a proffered scientific expertise could be ascertained. This question was raised in the Frye v. United States case heard by the United States Court of Appeals for the District of Colombia in 1923.11 Mr Frye was convicted of murder. He claimed to prove his innocence by using a lie detector test, a technique usually labelled a ‘polygraph test’. The Court had to decide whether this proof was reliable enough to be presented to the jury. The Court rejected this expertise on the grounds of a ‘general acceptance test’: according to the Court, ‘the thing from which the deduction is made must be sufficiently 10 11

In a case involving engineering, see: Edmond, 2002, 371–412. Frye v. United States, 293 F. 1013 (1923).

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established to have gained general acceptance in the particular field in which it belongs’. Hence, the criterion rests on the acceptance of the technique or the theory in the scientific community. The judge must then measure how broadly it is accepted. The general acceptance test has been largely diffused through the courts but some courts adopted a more deferential attitude toward science: any person claiming to be an expert might be heard in trial, except if the probative value of this expertise ‘is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury’. The Federal Rules of Evidence, which came into force in 1975, adopts this provision in Rule 403. However, it remained unclear whether the general acceptance test would have survived the enactment of the Federal Rules of Evidence. The doors of the courts remained largely open: any person claiming to be ‘an expert by knowledge, skill, experience, training or education’ may testify to the court (Rule 702). The spectre of ‘junk science’ had begun to haunt the courts. 2.3. The Spectre of ‘Junk Science’ Many criticisms were proffered against the liberality of the Federal Rules of Evidence.12 The demise of the general acceptance test confronted the jury with scientific expertise whose quality was far from reliable, even fraudulent. In Daubert v. Merrell Dow Pharmaceuticals,13 the United States Supreme Court was given an occasion to rule on the admissibility of expertise in court. Bendectin was a drug commonly used by pregnant women against morning sickness. Following the birth of a child suffering limb defects, the parents sued the firm producing Bendectin, Merrell Dow Pharmaceuticals. The plaintiffs claimed to prove the existence of a causal link between the ingestion of Bendectin and their child’s suffering. One of their expert witnesses showed a ‘metaanalysis’ of already existing epidemiological studies. These studies, however, showed no causal link between Bendectin ingestion and birth defects. Nonetheless, the expert claimed to be able to establish a link with a broader method of analysis. The Supreme Court first invested the judges with the function of determining what should be held as good science: ‘under the Rules the trial judge must ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable’. According to the Supreme Court, ‘this entails a prelimin12 Huber, 1991; Foster/Huber, 1999, 69 ff.; Marcia Angell, 1997; for a critical appraisal: Edmond/Mercer, 1998. 13 Daubert v. Merrell Dow Pharmaceuticals, 509 U. S. 579 (1993). See Sanders, 1992 and 1998; Lasagna/Shulman, 1993, 101–122; Encinas De Muñagorri, 1999, 621–632.

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ary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning or methodology properly can be applied to the facts in issue. We are confident that federal judges possess the capacity to undertake this review’. Then, the Supreme Court sets four criteria meant to help the judges in their newly attributed monitoring task: (1) ‘Ordinarily, a key question to be answered in determining whether a theory or technique is scientific knowledge that will assist the trier of fact will be whether it can be (and has been) tested’. (2) ‘Another pertinent consideration is whether the theory or technique has been subjected to peer review and publication’. (3) ‘Additionally, in the case of a particular scientific technique, the court ordinarily should consider the known or potential rate of error’. (4) ‘Finally, “general acceptance” can yet have a bearing on the inquiry. A “reliability assessment does not require, although it does permit, explicit identification of a relevant scientific community and an express determination of a particular degree of acceptance within that community.” . . . Widespread acceptance can be an important factor in ruling particular evidence admissible, and “a known technique that has been able to attract only minimal support within the community”’. The Daubert criteria reveal the epistemic syncretism of the Supreme Court. On the one hand, it refers to a now standard epistemology: quoting Popper14 and Hempel,15 it refers to falsification (tests) and to potential rates of errors of scientific theories. On the other hand, the Court mentions social aspects of scientific community: peer review, general acceptance. In this sense, the Supreme Court tries to conciliate classical epistemology with more recent developments in social studies of science: ‘The late Karl Popper’s largely discredited notion of science as progressing through clear falsification of erroneous claims appeared side-by-side with the view of constructivist sociologists of science that knowledge accumulates through negotiation and consensus among members of scientific community’ (Jasanoff, 1996, 406 ff). The Daubert case has been applied ever since and it has even been extended. In General Electric Company v. Robert K. Joiner,16 the Supreme Court urges the judges not only to screen the conclusions of the expert but also to screen 14 Popper, 1989, 37: ‘[T]he criterion of the scientific status of a theory is its falsifiability, or refutability, or testability’. 15 Hempel, C., 1966, 49: ‘[T]he statements constituting a scientific explanation must be capable of empirical test’. 16 General Electric Company, et al. v. Robert K. Joiner, 522 U. S. 136, 146–47 (1997).

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the reasoning he has been using. In Kumho Tire Company v. Patrick Carmichael,17 concerning an engineer in tyres, the Supreme Court holds that the Daubert rule must also be applied to non-scientific expertise. 3. Conclusion Whereas the French legal system addresses the problem of demarcation through statutes and through the activity of various committees, the US legal system places it at the heart of the trial. As a result, a federal judge well may have decided that the technique of fingerprint identification, though broadly in use in forensic science, does not meet the Daubert requirements of scientificity.18 In that decision, after a strict scrutiny of the fingerprint technique, the judge held that ‘fingerprint identification techniques have not been tested in a manner that could be properly characterized as scientific’. He adds that the technique hasn’t properly been submitted to publication and peer review, for those who use this technique hardly form a ‘scientific community’ in the Daubert sense. Furthermore, no rate of error is even known for this technique. In this sense, the scientificity of a proffered scientific expertise is made visible and is subjected to the hard look of the judges. But the question was raised of how far judges can be able to fulfil the gatekeeper function they are endowed with. In the United States, some plead for the development of special scientific training for judges. A reference manual is periodically issued in order to review the latest scientific consensus in each field.19 In the most recent years, more attention has been paid to the faculty offered to the judge to appoint a scientific expert. In order to ease the judge’s task, the American Association for the Advancement of Science is leading a five-year research program in order to assess how a list of certified experts could be helpful for judges.20 Concerning particularly debated subjects, it could be possible to appoint a scientific panel of experts representing diverse opinions regarding the scientific aspects of the case at stake.21

17 Kumho Tire Company v. Patrick Carmichael et al., 526 U. S. 137 (1999): ‘This case requires us to decide how Daubert applies to the testimony of engineers and other experts who are not scientists. We conclude that Daubert’s general holding – setting forth the trial judge’s general “gatekeeping” obligation – applies not only to testimony based on “scientific” knowledge, but also to testimony based on “technical” and “other specialized” knowledge’. 18 United States of America v. Carlos Ivan Llera Plaza, Wilfredo Martinez Acosta, and Victor Rodriguez, 179 F. Sup. 2d 492, 2002 U. S. Dist. 19 Reference Manual on Scientific Evidence, 2d ed., Federal Judicial Center, 2000. Also see: Conley/Peterson, 1996; Walker/Monahan, 1996; Kreiling, 1996. 20 A five years Court-Appointed Scientific Experts Project has been initiated by the American Association for the Advancement of Science in 1999.

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These suggestions reveal, to a certain extent, a parallel between French law and American law. Both systems aim at facing the demarcation problem. It cannot come as a surprise that they sometimes converge to some extent. This shows that describing the interplay between science and law as an adjustment of law to science would overlook the variety of legal constructions of science produced by legal systems. References Collins, H. M. (1985), Changing Order, London: Sage, 19922. Conley, J./Peterson, D. (1996), The Science of Gatekeeping: The Federal Judicial Center’s New Reference Manual on Scientific Evidence, 74 N. C. L. Rev. 1183. Edmond G. (2002), Legal Engineering: Contested Representations of Law, Science (and Non-Science) and Society, Social Studies of Science, vol. 32, nº 3. Edmond, G./Mercer, D. (1998), Trashing Junk Science, Stanford Technology Law Review, nº 3. Encinas De Muñagorri, R. (1999), La recevabilité d’une expertise scientifique aux États-Unis, Revue internationale de droit comparé, nº 3. Faigman, D. L. (2000), Legal Alchemy. The Use and Misuse of Science in Law, New York: W. H. Freeman and Co. Foster, K./Huber, P. (1999), Judging Science. Scientific Knowledge and the Federal Court, Cambridge: MIT Press. Goldberg, S. (1994), Culture Clash: Law and Science in America, New York: New York University Press. Goss, P./Worthington, D./Stallard, M. et al. (2001), Clearing Away the Junk: CourtAppointed Experts, Scientifically Marginal Evidence, and the Silicone Gel Breast Implant Litigation, 56 Food Drug L. J. 227. Hempel, C. (1966), Philosophy of Natural Science, Englewood Cliffs: Prentice-Hall. Hermitte, M.-A. (1997), Un droit à l’inventaire des progrès techniques, Annales des Mines, Responsabilité et environnement, nº 7. Hooper, L. L./Cecil, J. S./Willging, T. S. (2001), Neutral Science Panel: Two Examples of Panels of Court-Appointed Experts in the Breast Implants Product Liability Litigation, Federal Judicial Center. Huber, P. (1991), Galileo’s Revenge: Junk Science in the Courtroom, New York: Basic Books. Jasanoff, S. (1995), Science at the Bar. Law, Science and Technology in America, Cambridge: Harvard University Press.

21 This technique has been used for the silicon breast-implant case: Marcia Angell, 1997; Hooper/Cecil/Willging, 2001; Goss/Worthington/Stallard et al., 2001; Walker/ Monahan, 2000.

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– (1996), Beyond Epistemology: Relativism and Engagement in the Politics of Science, Social Studies of Science, vol. 26. Kreiling, K. (1996), Review-essays: Reference Manual on Scientific Evidence (Federal Judicial Center ed., 1994), 36 Jurimetrics J. Lasagna, L./Shulman, S. (1993), Bendectin and the Language of Causation, in Foster, K./Bernstein, D./Huber, P., Phantom Risk. Scientific Inference and the Law, Cambridge: MIT Press. Le Toqueux, J.-L. (1993), Les expertises judiciaires civiles et administratives, Études & statistiques justice – 2, 1992, Sous-direction de la Statistique, des Études et de la Documentation, Ministère de la justice. Marcia Angell, M. D. (ed.) (1997), Science on Trial. The Clash of Medical Evidence and the Law in the Breast Implant Case, New York: Norton. Popper, K. (1973), La logique de la découverte scientifique, Paris: Payot. – (1989), Conjectures and Refutations: The Growth of Scientific Knowledge, 5th ed. Sanders, J. (1992), The Bendectin Litigation: A Case Study in the Life Cycle of Mass Torts, 43 Hastings Law Journal. – (1998), Bendectin on Trial: A Study of Mass Tort Litigation, Ann Arbor, The University of Michigan Press. Walker, L./Monahan, J. (1996), Daubert and the Reference Manual: An Essay on the Future of Science in Law, 82 Va. L. Rev. 837. – (2000), Scientific Authority: The Breast Implant Litigation and Beyond, 86 Va. L. Rev. 801.

Some Preliminary Questions Concerning Human Cloning Paolo Donadoni

1. Subject My intention in this paper is to conduct some preliminary reflections of an essentially factual and linguistic nature which I believe to be lacking in the bioethical literature on human cloning with the result that misunderstandings have arisen from a number of inaccurate preconceptions. I shall provide a brief description of the cloning technique (Section 1), specify the actors involved and their contributions, and draw up a classification of the possible applications of reproductive human somatic nuclear cloning (Section 2). I shall then analyse a number of technical expressions used in the literature and from which it emerges that reproductive cloning can also be therapeutic (Section 3), and that therapeutic cloning likewise can also (and necessarily) be reproductive (Section 4). Analysis and clarification of facts and language are indispensable preliminary methodological operations if bioethical issues are to be addressed rationally, and if a semantics is to be constructed which enables the debate to be conducted with the certainty that the same things are being defined with the same words and different things with different words.

2. A Classification of Techniques Cloning is human reproduction by purely artificial means – that is, without the usual procedure of heterosexual gametic union (neither carnal nor using the in vitro technique) involving the fertilization of the female ovum by a fertile male sperm to produce a zygote. Cloning is an atypical form of reproduction in two respects: it is asexual (it does not involve an act of sexual intercourse) and it is agamic (there is no fusion of a male and a female gamete). While the former characteristic is nothing new, given that it is common to all artificial reproduction, the latter is of particular interest.

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Cloning is a form of artificial reproduction which concerns the creation of a living being which is somatically identical with another genitor living being from which it is derived. The first necessary distinction with regard to human reproductive cloning is therefore between: – Genitor: the original subject (existing or pre-existing) reproduced in the clone (which comes into existence);1 – Clone: the derived subject which replicates the genitor. Hence, in substance, the clone (newly-existing being) is the somatic copy of an exemplar (and already-existing or previously-existing being). The scientific significance of the technique used to produce Dolly the sheep, and of its subsequent developments, is that it was able to accomplish the transition from ‘cellular’ cloning to ‘nuclear’ cloning. In fact, in scientific terms, a distinction should be drawn between two techniques that fall under the general heading of ‘cloning’:2 (1) The technique of embryo splitting consists in the microsurgical cleavage of an embryo into several derived sub-embryos, thus replicating by artificial means what naturally happens in the case of homozygote twins.3 The technique can only be used to clone from still-undifferentiated embryo cells, or in any case before their fourteenth day of development,4 given that totipotency5 is inversely proportional to the embryo’s stage of development (so 1 As explained in more detail below, the concept of ‘genitor’ pertains to the somatic nuclear cloning technique (which is the only one of concrete interest here) and cannot be applied properly to other techniques. 2 Not treated here is parthenogenesis, although some authors consider it to be a third cloning technique (cf. Balistreri, 2004, 13 and 24), essentially because it is still a merely experimental technique (which has not yet produced positive results with mammals). By ‘parthenogenesis’ is meant the production of an embryo by the chemical or electrical stimulation of the egg cell without the use of sperm. 3 ‘Homozygote twins’ are individuals born from a natural splitting of the embryo. Because they derive from the same gametes (same egg and same spermatozoon), they are genetically identical. A distinction should be drawn between ‘homozygote’ twins, which are born simultaneously and derive from the splitting of a single zygote, and ‘fraternal twins’, which instead derive from two or more zygotes although they too are born simultaneously (Sgaramella, 1998, 52). 4 By the fourteenth day, the primitive streak (or embryonal line) which enables identification of the cranio-caudal axis and the dorsal and ventral surfaces has appeared. It therefore represents the limit for the formation of multiple embryos (cf. Flamigni, 1998, 53 ff.). 5 By ‘totipotency’ is meant the capacity of a cell to generate a complete organism. This capacity is possessed by the embryo cells from the zygote phase to the morula phase (from conception until the fifth day). By ‘pluripotency’ is meant the capacity of a cell to generate any type of tissue (that is to say, individual cells are still totipotent as regards the cellular progeny but no longer in epigenetic terms). This capacity is

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that as the differentiation process proceeds, the embryo’s totipotency diminishes until it disappears6), it yields a maximum of two or three copies.7 The genitor can therefore only be an embryo in the totipotency phase, with the consequence that the qualities of the offspring cannot be predicted with ease. In 1993 two American researchers at George Washington University used the embryo splitting technique to divide human embryos in vitro in order to examine their duplication. Their experiments, however, were conducted on embryos anomalous in that they were fertilized by two spermatozoa and therefore unable to develop for more than a few days (in fact, the differentiation process yielded a maximum of 32 cells). (2) The technique of nuclear transfer consists in the use of an electrical pulse to fuse a cell nucleus with the denucleated oocyte8 of another cell. The genetic nucleus can be removed from an embryonal, foetal, or somatic cell.9 The first case (the embryonic or foetal nucleus can be treated jointly) is that of ‘embryonic’ or ‘foetal’ nuclear cloning,10 which does not greatly differ from embryo splitting as regards predicting the qualities of the progeny (because the point of departure is again an embryo or foetus, i. e. an unborn being). The second case is that of ‘somatic nuclear cloning’, which enables reproduction of unlimited copies of individual adults (because a genitor can be cloned an unlimited number of times, and at any moment, given that it is only necessary to collect a single somatic cell from it). It is today possible to equate the embryonic genome (the set of the embryo’s still-undifferentiated cells) with the somatic genome (the set of the adult’s by now differentiated cells). The former is totipotent, that is, able to generate one complete organism. The latter is able (at least in some of its components under possessed by embryo cells from the blastocyst phase (sixth day) onwards. The subsequent phases are those of multipotency and unipotency. By ‘multipotency’ is meant the capacity of a cell to give rise to a specific range of tissues, and by ‘unipotency’ its capacity to generate only one type of tissue. 6 After the fifth day, the individual cells are no longer epigenetically totipotent (from the blastocyst phase onwards they are pluripotent), although the embryo as a whole retains its epigenetic totipotency until the fourteenth day. 7 The number of possible splits is limited because of the cytoplasmic insufficiency of the mammal surrogate mother, which is unable to keep a larger number of subembryos alive, and (in the case of several surrogate gestants) because the sub-embryos deriving from the splitting of the initial embryo can be divided only a limited number of times. 8 A ‘denucleated oocyte’ (or ‘ooplast’) is a oocyte whose nucleus has been removed. 9 V. Sgaramella, 1998, 53. 10 Embryonic or foetal nuclear cloning is also known as ‘paracloning’ (Cf. Capella, 2002, 20 and 29).

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certain conditions) to recover its original totipotency, something that was always believed impossible, and thus confutes the dogma of the irreversibility of the cell differentiation process. Every cell of the organism contains all the individual’s genetic material, and the nucleus of a somatic cell is able to reproduce a complete organism (and therefore recover its original totipotency) if it is extracted from the adult cell and placed in the cytoplasm of a denucleated oocyte which contains signals and growth factors able to trigger embryonic development.11 This is done by inducing a state of cellular quiescence, in the G0 (g-zero phase) of reduced metabolism when the DNA of the somatic nucleus interacts with the cytoplasm of the denucleated oocyte.12 This is a process that is still being studied in order to learn how to synchronize the cycles of the donor cell (somatic nucleus) and the receiver cell (denucleated oocyte), but especially to identify and control its signals and growth factors. In the case of somatic nuclear cloning, therefore, the genitor may be a person of any age; indeed, it may even be a deceased person (in fact, somatic cells can be cryoconserved for a long time).13 The genitor is therefore a subject whose characteristics are known. The offspring will have the same sex as the nucleusdonating genitor and its copy in both genetic make-up (although see below) and external appearance.14 The two novel features of nuclear cloning therefore consist in the possibility to clone individual adults (qualitative feature) and in an unlimited number of copies (quantitative). There do not appear to have been reproductive experiments on humans using the nuclear transfer technique, despite a number of reports that appeared in the mass media during 2001 but which have not been scientifically confirmed.15 Since the experiment that led to the birth of Dolly the sheep, the term ‘cloning’ has been used in its simple form without a defining adjective (‘nuclear’ 11

Cf. Flamigni, 1998, 457 ff.; Neri, 2001, 63; Sabato, 2002, 46. Cf. Sgaramella, 1998, 61. 13 Cf. Balistreri, 2004, 23. 14 In the case of Dolly the sheep, the somatic nucleus was taken from a sheep of the Finn Dorset breed, with a grey fleece and black muzzle, while selected as the surrogate mother was a Scottish Blackface, with a white fleece and a black muzzle (Kolata, 1998, 252 ff.). The result was that the difference between genitor and offspring was immediately apparent. 15 Cf. Meis, “Si, ho clonato un bebé e lo farò nascere entro l’anno”, in Stop, LV-6, 16 February 2001, pp. 16–17; A. Carlucci, “Dr. Jekyll e Mr. Clone”, in L’Espresso, XLVII-8, 22 February 2001, pp. 40–45. These press stories concerned the operation by a French scientist, Brigitte Boisselier, director of Clonaid (www.clonaid.com), founded in 1997 by the French Raelian sect (www.rael.org) in order to furnish human cloning services for reproductive purposes. 12

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or ‘cellular’) to denote nuclear cloning, and specifically ‘somatic’ cloning,16 a technique whose progress represents the potential for the future scientific development of cloning itself. In the cases of embryo splitting and ‘embryonal’ nuclear transfer, the genitor with its typical features17 does not in fact exist because it has never been born.18 Hence it can be argued that the concept of genitor strictu sensu pertains only to ‘somatic’ nuclear cloning.19 When alluding to the product of both cloning techniques, in everyday parlance reference is frequently made to ‘photocopying individuals’ (‘exemplars’ in the case of animals) in order to refer to their somatic identity. Yet, in somatic nuclear cloning20 there are two differences between the genitor and the clone (differences which instead do not exist in the case of embryo splitting21): – There is a biological difference22 because the clone develops from a nucleus identical to that of the genitor but in a different cytoplasm. Although the DNA is almost entirely contained in the nucleus, a portion – albeit quantitatively minimal – derives from the mitochondria present within the cytoplasm. (so-called ‘mtDNA’23). 16 The scientific community regards only nuclear transfer to be cloning in the strict sense (cf. Capella, 2002, 16). 17 An individual that precedes (or has preceded) a being genotypically identical with the clone and can therefore be a term of comparison. 18 To those who regard the embryo as a human being from the moment of conception, or in the case of nuclear cloning from the moment of the transnucleation of the oocyte, one may say that it has lived only in vitro and has never been implanted in a uterus, even less has it been born. In embryo splitting the ‘genitor’ embryo is divided into two sub-embryo clones. In ‘embryo’ nuclear transfer the ‘genitor’ embryo from which the nucleus is taken is destroyed. 19 A distinction should be drawn between genitor latu sensu, where the genetic endowment is replicated, and genitor strictu sensu, where an individual’s genetic endowment is replicated. In the case of somatic nuclear cloning we may speak of genitor strictu sensu (there is an individual as genitor), while in other cases we may speak at most of ‘genitor’ latu sensu (there is only one genome as genitor), placing the term in inverted commas to indicate that it is being used improperly. 20 The problem does not arise with ‘embryo’ nuclear cloning because the ‘genitor’ embryo is destroyed. 21 But see note 26 below. 22 Account should be taken of the natural somatic similarity of individuals. Two randomly selected human beings are genetically coincident to a 99.90% extent; siblings are 99.95% coincident (cf. Silver, 1998, 283, note 9). Consequently, in the case of cloning, there is an artificial increase in genetic coincidence which amounts at most to 0.10–0.05% (except in particular cases of homozygote twins). 23 In mammals mitochondrial DNA consists of a double helix circular molecule comprising 16,569 pairs of bases or nucleotides (less than 10–5 the size of the nuclear genome). It is inherited in uniparental, non-Mendelian, manner from the mother be-

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Given the minimum quantity of DNA present in the mitochondria (especially in proportion to that contained in the cell nucleus24), it might be believed that it is not relevant to the assessment of the biological differences between genitor and clone. Nevertheless, the importance of mitochondrial DNA should not be under-estimated, because from it may derive genetic anomalies that give rise to severe pathologies: for example, Leber hereditary optical neuropathy (LHON), Leigh’s syndrome (MILS), Myoclonus epilepsy associated with ragged-red fibres (MARRF), mitochondrial myopathy with lactic acidosis (MELAS), progressive external ophthalmoplegia (PEO), and others.25 Consequently, the fact that the risk of transmission to the offspring of severe genetic pathologies is linked to both nuclear and mitochondrial DNA demonstrates the objective importance of the genetic contribution by the woman supplying the denucleated oocyte. – There is also a biographical difference, in that the clone is born in a different spatio-temporal situation from that of the genitor26 and therefore lives in its own circumstances and conditions of development. This difference between genitor and clone, moreover, is twofold, because it concerns both the pre-natal and post-natal stages of their lives. Given that genitor and clone develop in the wombs of different gestants, it is today known that, during the intrauterine period,27 the offspring participates in the gestant’s life. Studies on pre-natal sensoriality report that the foetus is a multiperceptive living being28 able to perceive external sounds and noises, to the point that it participates in the mother’s mental and emotional processes.29 Hence it follows that human experiential and relational life begins cause it derives directly from the cytoplasm of the cells of the germinal line, especially from the oocyte, so that the mitochondrial genes derive to the progeny almost exclusively from the mother (cf. Harrison’s . . ., 1999, 2819; Molecular . . ., 1995, 812 ff.). 24 An idea of the magnitude of the difference is gained from the fact that the nuclear DNA has around 50,000 genes while the mitochondrial nucleus has only 37 (cf. Molecular . . ., 1995, 815). 25 Cf. Balistreri, 2004, 41. 26 This spatio-temporal difference is not entirely new, in fact, given that it may also arise in the case of embryo splitting in vitro with implant of one sub-embryo in the uterus and cryoconservation of the other. However, the time lag between the implanting of the first embryo and the implanting of the second cannot exceed five years, given the degenerative process to which cryoconserved embryos are subject. And in any case this lag is between clones, not between a genitor and its clone. 27 On the intrauterine period as a distinguishing feature between genitor and clone see Sgaramella, 1998, 48; Neri, 2001, 56. 28 Cf. Bellieni, 2000, 14–21. 29 Cf. Fracassi, 1999, 11–16.

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in the maternal womb, during the phase of pre-natal development, given that the mother’s external experience is (to a certain extent) shared by the offspring as it interacts with the gestant’s organism. Moreover, in the post-natal phase, since ‘environmental’ conditions inevitably vary over time in relation to the state of places, things, and persons, the clone develops its own social and cultural life-history different from that of the genitor. Hence, homozygote twins (and likewise clones produced by embryo splitting30) are more similar to each other (because there is neither the above-mentioned cytoplasmic biological difference nor the spatio-temporal lag of nonsimultaneity31) than are a genitor and its clone, or two nuclear clones,32 or a clone and its sub-clone.33 3. Human Reproductive Somatic Nuclear Cloning A number of distinctions should be made with regard to the applicative possibilities of human reproductive somatic nuclear cloning. The offspring is the result of the sum of two addends. The first is the biological contribution to the constitution of the genetic endowment of the offspring (G for Genetic), where a distinction must be drawn between G1, the donor of the nucleus (nuclear DNA), and G2, the donor of the oocyte (mitochondrial DNA). G1 may be of male or female gender, while G2 must necessarily be of female gender. The second addend concerns performance of the role, this too biological, of the functional gestator (who brings the pregnancy to term: F for Function). The third factor, N, denotes the offspring resulting from the addition of G+F. 30 Note, however, that clones produced by embryo splitting (unlike natural homozygote twins) may be transferred to the uterus simultaneously. 31 However, a post-natal spatial difference may arise if the twins (homozygote or produced by embryo splitting) are separated at birth and assigned to different families resident in different places; for example, when the parents separate and each receives custody of one of the twins. 32 Environmental difference does not necessarily exist in this case, because the clones may come into existence simultaneously (same time) and in the same sociocultural context (same place), although the cytoplasmic biological difference still obtains. This latter difference is an invariable feature of nuclear clones (given that they are produced individually, one for each transnucleated oocyte), except in the (extreme) case where two nuclei of the same genome are implanted in denucleated oocytes taken from the same female, who is thereafter the gestant. 33 The case of the clone and its sub-clone (so-called ‘sub-cloning’) is similar to that of the genitor and its clone, given that, strictly speaking, the clone is the genitor of the sub-clone.

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Addenda G and F both make a biological contribution to N. Specifically, whilst G’s contribution is genetic, that of F is organic-functional (biophysiological). The above components can be used to write the general scheme of reproductive addition: G+F=N

Diversifying the genetic contributions yields: G1, G2 + F = N

The number of subjects involved is variable, and the concrete possibilities are numerous. Application of the technique, in fact, may involve (in biological/ functional terms) up to a maximum of three subjects simultaneously (but drawing on a set of five different hypothetical subjects), viz: – ‘a’, the customer male, the possible donor of the nucleus (male genitor); – ‘b’, the customer female, the possible donor of the oocyte (female genitor) and/or oocyte donor and/or gestant (the female may perform all these roles: see sub 1BA below); – ‘g’, the third-party female, donor of the oocyte, and possible gestator; – ‘z’, the third-party (male or female) donor of the nucleus; – ‘d’, the third-party male or female donor of the nucleus.34

While the factor N, the offspring, is essentially simple, the addend G is naturally complex because it may involve a twofold genetic contribution35 (one decisive, G1 donor of the oocyte, the other almost negligible, G2 donor of the oocyte), and it may be variable because these subjects do not have fixed roles but may exchange them (a, b, g, d). However, although addend F is simple, it too is variable, because the gestational role may be performed by the future social mother (b) or by a surrogate one (g, z). Hence, distinguishing according to genetic contribution (given that also addend G, although simple, is variable), the concept of human nuclear somatic reproductive cloning comprises the practicability of six different hypotheses. Moreover, distinguishing further according to biophysiological contribution (because also addend F is simple yet variable), a distinction must be drawn in each of the hypotheses made as to whether the gestator is the same b customerd may also coincide with g or z. The genetic input is twofold because it derives from two distinct sources: the nucleus (G1) and the cytoplasm of the oocyte (G2). However, it may happen that a twofold contribution is made by the same subject (see sub1BA and 1BB below). 34 35

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mother or g the third-party non-donor of the oocyte. This yields a total of fifteen hypotheses with regard to human reproductive somatic nuclear cloning: – hypothesis sub 1A: a,b + F = N (Omi) – hypothesis sub 1AA (F = b): a,b + b = N (Omi) – hypothesis sub 1AB (F = z): a,b + z = N (Omi) – hypothesis sub 1B: b,b + F = N (Omp) – hypothesis sub 1BA (F = b): b,b + b = N (Omp) – hypothesis sub 1BB (F = z): b,b + z = N (Omp) – hypothesis sub 2A: a,g + F = N (EPd) – hypothesis sub 2AA (F = g): a,g + g = N (EPd) – hypothesis sub 2AB (F = z): a,g + z = N (EPd) – hypothesis sub 2AC (F = b ): a,g + b = N (EPd) – hypothesis sub 2B: b,g + F = N (EPd) – hypothesis sub 2BA (F = g): b,g + g = N (EPd) – hypothesis sub 2BB (F = z): b,g + z = N (EPd) – hypothesis sub 2BC (F = b): b,g + b = N (EPd) – hypothesis sub 2C: d,b + F = N (EPf) – hypothesis sub 2CA (F = b): d,b + b = N (EPf) – hypothesis sub 2CB (F = z): d,b + z = N (EPf) – hypothesis sub 3: d,g + F = N (ET) – hypothesis sub 3A (F = g): d,g + g = N (ET) – hypothesis sub 3B (F = z): d,g + z = N (ET) – hypothesis sub 3C (F = b ): d,g + b = N (ET)

The final abbreviations (in brackets) are for classificatory purposes. They denote: ‘Omi’, impure monogenetic homologous (because a minimum of maternal mitochondrial DNA remains); ‘Omp’, pure monogenetic homologous (because the genetic endowment is entirely furnished by the mother – this is the only case of cloning as the exact reproduction of the genitor’s genetic endowment); ‘EPd’, partly heterologous in the weak sense (given the mitochondrial DNA of the third-party donor of the oocyte); ‘EPf’, partly heterologous in the strong sense; ‘ET’, total heterologous. From this it follows that the objections brought against the heterologous form also apply to human reproductive nuclear somatic cloning. But let us examine the matter case by case. In the hypotheses sub 1AA and sub 1BB, because F is a third-party female (i. e. z coincides with F), we have homologous cloning via surrogate maternity with the gestational mother bringing to term.

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Consequently, the objections brought against surrogate maternity with the gestational mother bringing to term can be extended by analogy to these types of human cloning. In the hypotheses sub 2AA and sub 2BA, because F is the donor g of the oocyte (i. e. g coincides with F), we have partly heterologous cloning via surrogate maternity with the gestational mother bringing to term. Consequently, the objections brought against surrogate maternity with the gestational mother bringing to term can be extended by analogy to these types of human cloning. In the hypotheses sub 2AB and sub 2BB, because F is a third-party woman non-donor of the oocyte (i. e. z coincides with F), we have partly heterologous cloning via surrogate maternity with the gestational mother bringing to term. Consequently, extendable by analogy to these types of human cloning are both the objections against surrogate maternity with the gestational mother bringing to term, and the objections against heterologous fertilization. Finally, in the hypothesis sub 2CB, it is necessary to distinguish the case in which d coincides with z from the one in which d differs from z. In the former case, we have partially heterologous cloning via surrogate maternity with the gestational mother donating, and in the latter the gestational mother bringing to term. In these cases too, therefore, extendable by analogy to these types of human cloning are both the objections against surrogate maternity and those brought against heterologous fertilization. This raises numerous bioethical questions. I agree with Rodolfo Vázquez36 that certain of these issues (for example, determination of family structures different from the traditional one) do not exclusively pertain to cloning, because they concern other techniques of artificial reproduction, and that they should be addressed “independently of cloning”. But I do not agree with Vázquez when he implies that ethical-legal debate on cloning may ignore these issues, for although they concern a wider context, they are intrinsically bound up with cloning technique. They are indubitably independent of cloning, but cloning cannot be independent of them, so that any discussion cannot ignore them. When it is claimed that ‘human cloning is right’ or ‘human cloning is wrong’, and reasons are adduced, one may ask whether those advancing the claim are certain (apart from the fact that they should specify that the reference is to reproductive nuclear somatic human cloning) that those reasons are relevant to all possible applications of cloning technique to humans. Are they certain that they apply to the cloning technique under discussion? 36

Vázquez, 2000, 717, note 11.

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Conclusion: The foregoing discussion prompts two considerations. First, cloning is not a technique in and of itself; rather, it interrelates significantly with other artificial reproduction techniques (e. g. surrogate motherhood). Second, aside from general objections regarding the concept itself of human cloning as the replication of the already existent (if the genitor is still alive when the clone is born), it seems ill-advised for ethical and/or legal debate to deal with cloning alone; rather, it should consider the various possible applications of cloning technique in their distinctive features, so that different situations are evaluated (and if necessary regulated) in different ways. Or if it is intended to argue that objectively different situations are ethically-legally equivalent, the relative proof should be adduced. There may, in fact, exist a sort of presumption (susceptible to proof to the contrary) that an objective difference corresponds to an ethical difference. The ethical irrelevance of the objective difference instead needs to be proved. 4. ‘Reproductive Cloning’ versus ‘Therapeutic Cloning’ – How can the Notion of Therapy be Extended? I now examine a number of expressions commonly employed in the bioethical debate on human cloning. In general, from a purposive point of view, a distinction is usually drawn between ‘reproductive’ human cloning (RHC) and ‘therapeutic’ human cloning (THC), where by the former is meant a technique used to generate a human being, and by the latter an application designed to remedy specific pathologies in an already-existing human being (using stem cells). Consequently, reproductive cloning is not therapeutic cloning, or vice versa, in that therapy and reproduction are two distinct situations. A number of reservations have been expressed with regard to the notion of ‘therapeutic’ cloning’.37 These, however, concern ethical aspects, whereas my intention here is to restrict discussion to factual considerations relative to the coherence of the language used (and therefore preliminary to evaluative analysis). 37 See in particular Università Cattolica del Sacro Cuore, 1999, 9–15, which raises two objections against the humanistic and healing purpose of cloning: – the discrepancy between the therapeutic end pursued and the anti-human means of exploiting and destroying another human being in the early stages of development (the embryo) for experimental purposes; – the depersonalization of the procreative act, given that therapeutic cloning gives a ‘degenerate’ meaning to human reproduction, which is engendered for medical-experimental-commercial purposes that reduce the parental figure to the mere donor of biological material. See Pessina (1999, 140), who claims that “human cloning for therapeutic purposes is morally worse than human cloning to produce children”.

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In particular, I do not intend to defend the adjective ‘therapeutic’ in reference to reproduced38 (which would require evaluation of the embryo’s ethical-legal status). Instead, I shall relate the notion of therapeuticity to the reproducer alone and verify whether this extension of the notion enables it to encompass the reproductive event as well. That said, I believe that there are grounds for arguing that the distinction between reproductive and therapeutic cloning is less antithetical than is commonly believed – as if the distinction involved an ‘either/or’ relation between two opposing concepts.39 In effect, the concepts of reproductive and therapeutic cloning are not necessarily antithetical; nor, therefore, are they necessarily alternatives to each other, nor are they in conflict. If by ‘health’ is meant the psycho-physical well-being of the human person, which is – in Italy – by now the usual, though not standard,40 interpretation given by case law, then reproduction may be beneficial to the health of the woman concerned (not necessarily the expectant mother – see surrogate maternity) and/or of the couple that reproduces. This notion of health is frequently adduced by those who invoke article 32 of the Constitution41 to assert the legitimacy of artificial reproduction techniques. Moreover, this ‘extended’ notion of well-being intended to incorporate the concept of health into the complexity of the human organism (without restricting it to sterile reductionisms) is also widely embraced at the international level.42

38 Some authors (cf. Balistreri, 2004, 35), although they do not dispute the factual circumstance of the destruction of the embryo, propose that the expression ‘therapeutic cloning’ be preserved, on the grounds that it would be paradoxical to attribute to the embryo in its early stages of development an importance greater than that commonly attributed to the germinal or somatic cells. Here, however, I shall not engage in evaluation of the ethical-legal status of the human embryo. 39 The contrastive use of the expressions ‘reproductive cloning’ and ‘therapeutic cloning’ is by now so widespread in the literature that each has acquired its own specific connotations (negative in the former case, positive in the latter). On the emotive force of the expressions see Castignone, 1998, 11 ff. 40 Consider in particular the civil-law institute – of case-law origin – termed “biological damage”, the compensability of which rests on the provisions of article 32 of the Costitution and art. 2043 of the Civil Code (as ruled by the Court of Cassation) or art. 2059 (following the recent threefold distinction of “non-pecuniary damage” by the Constitutional Court). 41 Article 1, clause 1 of the Constitution affirms: “The Republic protects health as a fundamental right of the individual and the interest of the collectivity”. 42 Consider, for example, the Constitution of the World Health Organization, which defines health as “a state of complete physical, mental and social well-being”, which is obviously an assertion that concerns not a real situation but an ideal one to be strived for.

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Precise definition is now required of the notion of ‘therapeuticity’ used in such contexts. By ‘therapy’ is meant action undertaken to produce concrete benefit for a person’s health – the latter broadly understood as psycho-physical well-being in the absence of his/her physical functionality. There are two possible ways in which this situation can be brought about: (1) achieving the outcome characteristic of a correctly functioning organism; (2) restoring functionality to the organism. Whether A constitutes therapy is a matter of debate, given the considerations usually put forward with regard to the claimed therapeuticity of artificial reproduction techniques, which do not restore functionality to the organism but instead artificially compensate for a permanent natural handicap. However, while there is dispute as to whether a process which substitutes rather than restores the organism’s functionality is therapy, there is general agreement on B. Hypothesis A we may call therapeutic ‘in a broad sense’ (and discussion continues on how broad that sense is), and B therapeutic ‘in a narrow sense’ (relative to the core meaning of ‘therapy’). It can be argued that a type-A solution cannot be defined therapeutic in cases where a type-B solution is technically feasible. However, in cases where a typeB solution is not technically feasible, then a type-A solution may be definable as therapeutic. This latter would therefore be a subordinate and residual notion of therapeuticity: because functionality cannot be restored to the organism, and an attempt is made at least to eliminate its unpleasant consequences, enabling the individual to obtain the same result that he or she would have with a correctly functioning organism. Consider, for example, the case of so-called ‘idiopathic sterility’,43 where because the causes of the woman’s and/or couple’s inability to reproduce are unknown, it is not possible to undertake therapy to restore functionality. In this case, therefore, the only option is to resort to artificial reproduction. From this point of view, the boundary line between therapy in the narrow and broad senses is constantly shifting, because it reflects the theoretical and applied progress of science. Hence, as we shall see, it may be legitimate (assuming both definition A and definition B) to define also cloning for reproductive purposes as ‘therapeutic’.

43 ‘Idiopathic sterility’ is sterility due to unknown causes (it accounts for circa 10% of cases of sterility).

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In effect, from the point of view of the reproducer: – According to definition A, given that a child has been obtained by means of the cloning technique, the woman and the sterile couple have achieved the outcome that they desire. – According to definition B, given that a child has been obtained by means of the cloning technique, the psychopathology caused by the sterility or infertility of the woman and couple can be considered cured. In this regard, what is to be stressed is that the relationship between sterility and psychology in the female organism is so intense that psychologicallycaused sterility (so-called ‘psychogenic sterility’44) can be identified, and also – vice versa – psychological suffering caused by sterility. The concept of therapy thus stands in contrast to that of illness. Under hypothesis A, it is assumed from the outset that sterility45 (or infertility46) is an illness47 (i. e. the inability to conceive a child). Under hypothesis B, it is assumed from the outset that the psychological suffering of the sterile individual and/or couple is an illness (i. e. the suffering caused by the inability to conceive a child). This latter aspect should be emphasised. Both physical and psychological suffering pertain to illness because they are its manifestations as well as its constitutive elements. Consequently, if the suffering disappears, the therapy can be considered efficacious. More in general, Italian case law has by now established the concept of ‘psychic damage’48 – as particularly intense distress caused to a person – and it is also in the process of incorporating the notion of ‘existential damage’,49 44

Cf. Fiumanò, 2000, 57 ff. By ‘sterility’ is meant the inability of a couple to conceive a child after a certain period (usually two years) of sexual relations of normal frequency and without the use of contraceptives: cf. Flamigni, 1998, 272 ff. Sterility may be ‘primitive’ if there have been no previous pregnancies, or ‘secondary’ if there has been at least one previous pregnancy. 46 By ‘infertility’ is meant the inability to bring a pregnancy to term: cf. Flamigni, 1998, 275. 47 Opinions differ as to whether sterility can be considered an illness. For examination of the arguments in favour of the equivalence between them see Flamigni, 1998, 280. For a critique, see Mori, 1995, 31 ff. 48 ‘Psychic damage’ is usually regarded as a sub-category of ‘biological damage’, given that its status has not yet been firmly established by jurisprudence. 49 On ‘existential damage’ see Corte di Cassazione, sez. I civ., 7 giugno 2000 no. 7713 (in Il foro italiano, Rome, CXXVI, 2001, I, coll. 187–204; in G. Cassano, 2002, 267–270) and Corte di Cassazione, sez. lav., 3 luglio 2001 no. 9009 (in Responsabilità civile e previdenza, Milan, LXVI, 2001, 1177 summary, 1192–1198 in full; in G. Cassano, 2002, 643–651). 45

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which relates to emotional and psychological alterations in a person’s mental state and to their repercussions on his/her everyday existence.50 These notions are not considered here in terms of legal liability; it is my intention instead to emphasise the importance now accorded by the law to a person’s psychological suffering, even when it is not directly correlated with contemporaneous physical suffering. Moreover, a diagnosis of idiopathic sterility may give rise to severe depressive illness such that damage is caused to a person’s psycho-physical wellbeing.51 On these grounds, therefore, the notion of therapy must necessarily take account of the psychopathological state that may arise in the sterile female organism as a result of an unfulfilled desire for maternity.52 Conclusion: Hence, should one wish to use an either/or antithesis with regard to the purposes of cloning, the distinction to be drawn is between ‘reproductive’ and ‘non-reproductive’ cloning in the more general sense, regardless of whether the technique (and its effects) is intended to be therapeutic. This also reflects the extent – as stated above – to which the notion of therapeuticity can be applied to reproductive cloning as well, given that the reproductive purpose may coexist with the therapeutic one, in that the denotative range of the term ‘therapy’ extends to include the reproductive event. 5. ‘Reproductive’ versus ‘Non-reproductive’ Cloning – What is the Biological/Temporal Point (of no Return) that Determines the Reproductivity of the Human Nuclear Cloning Process? I shall now consider whether this new antithesis (‘reproductive cloning’ versus ‘non-reproductive cloning’), although unproblematic from a purposive point of view, does not give rise to difficulties from the factual one. The notion’s legitimacy has been recently recognized by Sezioni Unite della Corte di Cassazione (21 febbraio 2002 no. 2515, in Giurisprudenza italiana, Turin, CLIII, 2002, pp. 1270–1273) and the Corte Costituzionale (11 luglio 2003 no. 233, in Il foro Italiano, Rome, CXXVIII, 2003, I, coll. 2201–2207), albeit on different grounds. 50 Moreover, whereas ‘psychic damage’ must be medically ascertained and its symptoms evaluated by clinical diagnosis, ‘existential damage’ is more closely bound up with the sufferer’s quality of life, and therefore with changes of a sentimental and affective nature in his/her everyday lifestyle and aspirations. 51 Cf. Flamigni, 1998, 277: “for a woman it may be the beginning of a drama: for her (and for many other women) the very purpose of her life may consist in pregnancy and childbirth . . . the woman will never be the same: her relationships will change with her husband, family and others . . . and she will therefore have a life marked by suffering”. 52 Cf. Vegetti Finzi, 1997, 133: “in certain respects, the influence of the emotions brings the domain of biotechnology close to that of psychotherapy”.

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Whilst in abstract the intention to engender reproduction obviously cannot coexist with the intention not to do so (they are mutually exclusive), in concrete terms it should be verified whether cloning for non-reproductive purposes may not engender reproduction and thus be at odds with the intention. The theme of cloning (‘therapeutic’, which here is termed ‘non-reproductive’53 for the reasons given above) is closely bound up with that of stem cells,54 which in 2000 was the subject of heated debate in Italy following a document issued by the Pontificia Accademia per la Vita.55 Talk has begun, in fact, of a “new Italian way” to cloning which uses only stem cells taken from the adult organism, rather than from the embryo or the foetus.56 A preliminary distinction must be drawn between: – ‘embryo’ stem cells (abbreviated to E.S.C.), which can be extracted from human tissue in the embryogenetic stage until the blastocysts are forming; – ‘adult’ stem cells (abbreviated to A.S.C.), which can be extracted after birth from human tissues such as bone marrow (HSCs), the brain (NSCs), blood from the umbilical cord (P/CB, placental/Cord Blood). The taking of adult stem cells does not entail the destruction of embryos and therefore eludes the issue of the ethical-legal status of the embryo. However, it does not seem possible to talk of a “new way”, given that research on stem cells in the adult organism has been under way for some time; nor of an “Italian way”, given that such research is conducted in various countries of the world and that Italy is not among the leader countries in the sector.57 The best prospects are held out by embryo stem cells of autologous type, from which it is possible to derive in vitro immunologically compatible cell cultures used to repair tissue lesions in the patient. Adult stem cells, in fact, raise a number of significant quantitative and qualitative problems58 concerning 53 Some authors have proposed that the term ‘cloning’ be used only in reference to reproduction and suggested, in the absence of reproduction, “simple ‘nucleus transfer’, a neutral term without emotive connotations” (cf. Satolli, 2000, 486). 54 For a brief survey of current scientific developments with regard to stem cells see Leone-Mancuso, 2001, 91–109. 55 Pontificia Accademia per la Vita, Dichiarazione sulla produzione e sull’uso scientifico e terapeutico delle cellule staminali embrionali umane, 24 August 2000 (also published in Bioetica, Milan, VIII-3, 2000, 489–495). For a critique see Neri, 2000, 479–484. 56 This position has been reiterated by Università Cattolica del Sacro Cuore [2000, 1221–1223]. 57 Cf. Garattini, 2000, 477. 58 For that matter, even those who support research on adult stem cells on ethical grounds acknowledge that “it is not yet possible to compare the therapeutic results obtained and obtainable using embryo stem cells and adult stem cells” (cf. Pontifica

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their supply (they are difficult to identify and anyway present in very small quantities) and potential (they have low reproductive capacity and are not pluripotent).59 Reference to embryo stem cells entails the difficulty of defining the extension of the concept of ‘reproductivity’, since the reproductivity or otherwise of human nuclear cloning necessarily requires prior specification of the human embryo’s ethical-legal status (given that this particular cloning technique involves irreparable damage to the embryo). Inspection of the literature seems to show that when the expression ‘therapeutic cloning’ is used, two different meanings are given to the adjective ‘therapeutic’. In some cases it denotes the purpose of the technical application in the concrete case, and this is the purposive value discussed earlier (section 4), showing that – in reality – this purpose cannot be deemed necessarily in conflict with the reproductive purpose. In other cases, by contrast, it seems that the adjective ‘therapeutic’ is applied to all cloning that does not involve implanting a transnucleated oocyte in a uterus, this being the discriminatory element at factual level,60 regardless of the purpose of their cloning. In this case, ‘therapeutic’ is equivalent to ‘non-reproductive’, which is the hypothesis that we are now examining. However, the technique of human nuclear non-reproductive cloning is the same as human nuclear reproductive cloning, the only difference being the interruption of embryogenesis at the blastocyst stage61 in order to extract the cells of the inner cell mass (the ‘embryoblast’). It is then possible to obtain from the embryoblast in vitro cultures of autologous embryo stem cells62 to be specialized in the direction desired by processes of induced differentiation.63 Accademia per la Vita, Dichiarazione sulla produzione e sull’uso scientifico e terapeutico delle cellule staminali, cit.), although a more recent document states: “the choice of this line of research therefore seems both more technically valid and scientifically valid . . . than the use of embryo stem cells” (cf. Pontificia Accademia per la Vita, 2001, 137–145). 59 On the differing capacities of embryo and adult stem cells see Neri, 2001, 47 ff.; Sabato, 2002, 42 ff.; Neri, 2000, 481 ff. 60 Cf. Serra (2001, 557), who contests the alleged therapeuticity of the cloning technique and affirms: “therefore introduced was the expression ‘therapeutic cloning’ to denote this process and to distinguish it from ‘reproductive cloning’, which requires implanting of the transnucleated oocyte in the uterus for its development to proceed”. 61 Cf. Sabato, 2002, 132. 62 Stem cells are ‘autologous’ if the embryoblast has been extracted from the development in the blastocyst of a transnucleated oocyte with the nucleus taken from a cell obtained from the same subject on which subsequent therapeutic intervention is to be performed. Stem cells are ‘heterologous’ if the embryoblast has been extracted from the development in the blastocyst of a transnucleated oocyte with the nucleus taken

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This, however, signifies that in factual terms (i. e. if we do not consider the purposive aspect: the intention of the action) there is a phase – from the transnucleation of the oocyte to the formation of the blastocyst – during which there is no distinction between ‘reproductive’ and ‘non-reproductive’ cloning (that is, when the techniques and procedures are identical). In actual fact, there is a difference between non-reproductive human nuclear cloning and reproductive human nuclear cloning only when the embryo produced is implanted in the uterus. Hence it follows that: (1) For those who argue for the uniqueness of the embryogenesis process, and who therefore use the term ‘embryo’ exclusively to denote the phase of development preceding formation of the foetus,64 any form of cloning can only be reproductive (if not in intention, at least in fact) when it involver the formation of an embryo.65 (2) Vice versa, for those who accept the notion of ‘pre-embryo’ (the changepoint is usually the fourteenth day from formation of the zygote,66, 67 but there are other opinions), it is possible to differentiate between a reproductive cloning process, where development continues beyond the fourteenth day, and a non-reproductive cloning process, where development is interrupted before the fourteenth day. On the latter hypothesis, no embryo in the strict sense is produced, for only a ‘pre-embryo’ has been developed and then destroyed. This distinction consequently serves to mark out within the embryogenesis a zone of anthropological latency which enables a distinction to be made between reproductive and non-reproductive outcomes. Consequently, according to position A there is no (and there could not be) nuclear cloning that is not reproductive. Thus, for the proponents of A, it is irrelevant whether the embryo has an original or derived genetic endowment: what matters is that this is nevertheless from a cell obtained from a subject different from the one on which subsequent therapeutic intervention is to be performed. 63 Cf. Serra, 2001, 562; Colombo-Neri, 2001, 63. 64 In Italy, the Catholic Church has taken up a particularly forceful position on the issue. Cf.. Congregazione per la dottrina della fede [1987]. 65 According to Pontificia Accademia per la Vita, Dichiarazione sulla produzione e sull’uso scientifico e terapeutico delle cellule staminali embrionali umane, Rome, cit. 66 Cf. Department of Health and Social Security [1984]. 67 In the case of nuclear cloning, if one does not wish to call the transnucleated oocyte a ‘zygote’, the change-point between pre-embryo and embryo is (and could not be otherwise) the date on which the oocyte is transnucleated.

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human genetic material, regardless of what its composition may be. Nor does it matter that the embryo is located in cell cultures rather than being implanted in the womb, given that this objection (made against all in vitro fertilization) is countered by pointing out that the technique and form of reproduction do not influence the nature of the reproduced entity.68 There is still a question to be settled: the nature (non-zygotic?) of the transnucleated oocyte. There are those who have argued that the totipotent human material produced by nuclear cloning is something new, something never produced in nature, a sort of extension of the nucleus donor’s body,69 because it is not a zygotic embryo that results from the fertilization. In fact, “an oocyte reconstituted with the nucleus of a somatic cell cannot be considered a zygote in the standard sense, because it does not derive from the union of two gametes”.70 This proposal by the ‘Dulbecco Commissione’ is therefore not a new scientific departure (it pertains, in fact, to the already-discussed technique of nuclear cloning); it is rather a new interpretation. Now, whilst it is indubitably true that this is not a zygote in the ‘standard sense’,71 it is equally true that it is an embryo (and it is defined as such in the bioethical literature72) – as demonstrated by the fact that if it is placed in normal environmental conditions, it begins the embryogenesis process (in exactly the same way as the zygote).

68 Cf. Di Pietro-Sgreccia, 1999, 118: “the fact that it has been obtained by cloning does not change its ontological status, even less the moral obligations . . . of the individual and society towards it”. 69 Cf. Satolli, 2000, 487; Sabato, 2002, 134. 70 Commissione di studio per l’uso di cellule staminali per finalità terapeutiche [2000]. On the work of the Commissione see Bompiani, 2001a, 101–25; Bompiani, 2001b, 299–340; Galimberti, 2000, 3–6. 71 The fertilization and nuclear transfer procedures cannot be likened each to the other, because they are substantially different. The ‘zygote’ is formed following fusion of the pronuclei of the oocyte and the spermatozoon, each of which (being haploid) delivers 23 chromosomes which give rise to a new single-cell entity. Instead, the ‘transnucleated oocyte’ is formed by transfer of the somatic cell nucleus to a denucleated oocyte, whose nucleus (being diploid) brings all 46 chromosomes with it (cf. Brovedani, 1997, 35; Satolli, 2000, 487; Sabato, 2002, 15). However, despite the diversity of the procedures, in both cases a diploid single-cell embryo is produced. If the notion of ‘zygote’ is not tied to gametic fertilization, then the transnucleated oocyte may be considered a zygote, not in the ‘standard sense’ but latu sensu. If instead, as appears to be the case, the notion of ‘zygote’ is inextricably bound up with fertilization, then the transnucleated oocyte cannot be considered a zygote. Yet it is indubitably an embryo, simply because it engenders the embryonal process. It would be absurd to argue that it is not an embryo that gives rise to embryogenesis. Therefore, the notions of ‘zygote’ and ‘transnucleated oocyte’ are species of the genus ‘embryo’. 72 Cf. Kolata, 1998, 253; Flamigni, 1998, 459; Galli, 2000, 473; Neri, 2001, 61; Sabato, 2002, 14; Balistreri, 2004, 104.

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Consequently, it is no longer scientifically correct to assert that conception marks the beginning of human life,73 because a human life may have agamic origin without being conceived. But precisely because the beginning of a human life may ensue from a transnucleated oocyte, rather than from a zygote, the said transnucleated oocyte can only be considered an embryo.74 In the view of those who argue for the personal nature of the embryo, obviously, what matters is the intrinsic capacity of the embryo to develop into a complete human being if placed in the conditions in which every human being is placed to be born. This potential is also possessed by the reconstituted oocyte (first denucleated, then transnucleated), which has the same capacity for development as the zygotic embryo75 (although the transnucleated oocyte requires, in the absence of the natural process of embryogenesis by the spermatozoon, to be activated by Sr2+ ions or electrical pulses76). In contrast to this is the proposal (also put forward by the ‘Dulbecco Commissione’) of “nucleus transfer for the production of autologous stem cells” (TNSA) without operating through the embryo at any stage of its development, but immediately directing the transnucleated oocyte towards the production of embryo spheres.77 This would be a new scientific departure and not merely a new interpretation. The proposal has aroused the interest of the Pontificia Accademia per la Vita78, which, although acknowledging that at present “the TNSA hypothesis does not appear sufficiently corroborated by experimental evidence”, has concluded “it cannot be ruled out . . . that this innovative way to produce autologous stem cells may prove viable”. Conclusion: When reasoning in terms of ‘non-reproductive’ (or, more frequently, ‘therapeutic’) cloning from embryo stem cells, one assumes – given that it is automatically presupposed – a specific point of view on the ethicallegal status of the human embryo. When instead reasoning in terms of ‘reproductive’ cloning, one does not necessarily assume a specific point of view on the status of the human embryo (one could refer, for example, to an embryo in 73

Cf. Silver, 1998, 45. It could perhaps be said (on the basis of their different genesis) that whereas the zygote is a ‘gametic’ diploid single-cell embryo, because it is produced with the contribution of two gametes, the transnucleated oocyte is an ‘agamic’ diploid single-cell embryo because it is produced without the contribution of gametes. 75 Cf. Balistreri, 2004, 106. 76 Cf. Colombo/Neri, 2001, 63. 77 Commissione di studio per l’uso di cellule staminali per finalità terapeutiche [2000]: “the reconstituted oocyte may . . . be induced to proliferate and channelled towards the formation of embryonic spheres (not blastocysts) whose differentiation can be directed towards specific stipe-cells”. 78 Pontificia Accademia per la Vita, 2001. 74

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the eighth week of development,79 when there is broad consensus that human life has begun), unless one refers specifically to the initial stage of embryogenesis (e. g. the first fourteen days of the embryo’s formation). Hence the use of the former expression is indicative of a specific intellectual position, whilst the use of the latter expression is not necessarily so (it depends on the phase of embryo development being referred to). References AAVV, Harrison’s Principles of Internal Medicine (1998), it. trans.: Principi di medicina interna, Milano: McGraw-Hill, vol. 2, 1999. AAVV, Molecular Biology of the Cell (1994), it. trans.: Biologia molecolare della cellula, Bologna: Zanichelli, 1995. Balistreri, M. (2004), Etica e clonazione umana, Milano: Guerini. Bellieni, C. V. (2000), Sensorialità feto-natale, Educare per, 1/2. Bompiani, A. (2001a), I lavori della Commissione ministeriale per lo studio della utilizzazione delle cellule staminali – I, Medicina e Morale, Roma, LI-1. – (2001b), I lavori della Commissione ministeriale per lo studio della utilizzazione delle cellule staminali – II, Medicina e Morale, Roma, LI-2. Brovedani, E. (1997), Aspetti etici della clonazione, in AAVV, Clonazione: problemi etici e prospettive scientifiche, Milano: Le Scienze. Capella, V. B. (2000), ¿Clonar? Ética y derecho ante la clonación humana, it. trans.: Clonare? Etica e diritto di fronte alla clonazione umana, Torino: Giappichelli, 2002. Cassano, G. (ed.) (2002), La giurisprudenza del danno esistenziale, Piacenza: La Tribuna. Castignone, S. (1998), Introduzione alla filosofia del diritto, Roma/Bari: Laterza. Colombo, R./Neri, G. (2001), La questione dell’embrione umano: aspetti biologici e antropologici, in Zaninelli, S. (ed.), Scienza, tecnica e rispetto dell’uomo, Milano: Vita e Pensiero. Commissione di studio per l’uso di cellule staminali per finalità terapeutiche (cd. “Commissione Dulbecco”) (2000), Relazione conclusiva sull’uso di cellule staminali per finalità terapeutiche, Roma: Ministero della Sanità. Congregazione per la dottrina della fede (1987), Istruzione sul rispetto della vita umana nascente e la dignità della procreazione, Roma (oggi: San Paolo, Roma, 1998).

79 In the eighth week the embryonal period ceases and the foetal period begins. The embryo is approximately 3 cm long and has formed all its essential structures, both internal and external.

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Department of Health and Social Security (1984), Report of the Commitee on Inquiry into Human Fertilization and Embryology, London: Her Majesty’s Stationery Office. Di Pietro, M. L./Sgreccia, E. (1999), Procreazione assistita e fecondazione artificiale, Brescia: La Scuola. Fiumanò, M. (2000), A ognuna il suo bambino, Milano: Il Saggiatore. Flamigni, C. (1998), Il libro della procreazione, Milano: Mondadori. Fracassi, A. (1999), Aspetti e problemi fondamentali dello sviluppo psicopedagogico del bambino in fase prenatale, Educare per, 1. Galimberti, U. (2000), Clonazione, i dialoghi dei Saggi, Notizie di Politeia, Milano, XVI-60. Galli, C. (2000), Perché come scienziato sono favorevole alla clonazione, Bioetica, Milano, VIII-3. Garattini, S. (2000), Invito a una discussone pacata, Bioetica, Milano, VIII-3. Kolata, G. (1998), Clone, it. trans.: Cloni. Da Dolly all’uomo?, Milano/Cortina, 1998. Leone, G./Mancuso, S. (2001), Le cellule staminali: stato delle conoscenze e applicazioni terapeutiche, in Zaninelli, S. (ed.), Scienza, tecnica e rispetto dell’uomo, Milano: Vita & Pensiero. Mori, M. (1995), La fecondazione artificiale, Roma/Bari: Laterza. Neri, D. (2000), La ricerca sulle cellule staminali: una terza via? Quale terza via?, Bioetica, VIII-3. – (2001), La bioetica in laboratorio, Roma/Bari: Laterza. Pessina, A. (1999), Bioetica. L’uomo sperimentale, Milano: Bruno Mondadori. Pontificia Accademia per la Vita (2000), Dichiarazione sulla produzione e sull’uso scientifico e terapeutico delle cellule staminali embrionali umane, 24 agosto, Bioetica, Milano, VIII-3. – (2001), Cellule staminali umane autologhe e trasferimento di nucleo, 5 gennaio, Medicina e Morale, Roma, LI-1. Sabato, G. (2002), L’officina della vita, Milano: Garzanti. Satolli, R. (2000), Quando comincia la vita di un clone?, Bioetica, VIII-3. Satolli, R./Terragni, F. (ed.) (1998), La clonazione e il suo doppio, Milano: Garzanti. Serra, A. (2001), L’embrione umano: prezioso strumento tecnologico?, La civiltà cattolica, Roma, CLII-3636. Sgaramella, V. (1998), La scienza prima e dopo Dolly, in Satolli R./Terragni, F. (ed.), La clonazione e il suo doppio, Milano: Garzanti. Silver, L. M. (1997), Remaking Eden, it. trans.: Il paradiso clonato, Milano: Sperling & Kupfer, 1998. Università Cattolica del Sacro Cuore (1999), Clonazione umana “terapeutica”?, Medicina e Morale, Roma, XLIX-1.

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– (2000), Sviluppo scientifico e rispetto dell’uomo. A proposito dell’utilizzo degli embrioni umani nella ricerca sulle cellule staminali, Medicina e Morale, Roma, L-6. Vázquez, R. (2000), Si può giustificare eticamente la clonazione umana?, Bioetica, Milano, VIII-4. Vegetti Finzi, S. (1997), Volere un figlio, Milano: Mondadori.

Some Comments on the Law of Biomedical Research1 Pascal Lokiec Biomedical research deserves particular attention as far as legal theory is concerned. At the borderline between law and science, it challenges the frontiers of the legal order, as well as its pretensions. Indeed, both law and science are legitimate to determine the validity of biomedical research. Science will give primacy to criteria such as the scientific scope and potential uses of the research whereas the law will focus on considerations such as fundamental rights, notably the respect for the dignity of the person. The need to co-ordinate law and science, and the complexity of the issues involved, may explain the originality of the law applicable to biomedical research with regard to classical private law regulation. Indeed, if biomedical research is not left, and cannot be left, to freedom of contract, it is not governed by state interventionism. It is built around the idea of self-regulation, the final decision to carry out the research being left to a committee essentially composed of experts, who make their judgement according to broad criteria defined either by the State or, in some countries such as the United Kingdom, by scientific authorities. Self-regulation, although other forms of regulation govern the law applicable to biomedical research, thus explains its overall logic and offers a good example of what is commonly called ‘soft law’ (1.). It also explains the difficulties that comparative law encounters in this domain. The regulation of biomedical research is indeed an interesting example of the difficulties that ‘soft law’ causes to comparative law. How can a comparison be carried out, where the law states indeterminate standards or contents itself with delegating decision-making power to local committees? (2.). 1. Biomedical Research Law as Self-Regulation Biomedical research departs from the classical private law construction that governs countries with a strong statute law tradition, such as France. Such 1 The following text reproduces the oral presentation made at the conference; it is based on the conclusions of a collective study on ‘biomedical research and the proceduralisation of law’; Vacarie, I./Ginon, A.-S./Lokiec, P. ‘Recherche biomédicale et procéduralisation du droit’, Juillet 2000, research financed by the GIP ‘mission de recherche Droit et Justice’ and the Ministry of employment and solidarity.

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countries are accustomed to a two-tiered construction of the law based on the articulation between contract on the one hand, statute law on the other. The agreement of the parties is thus limited by rules laid down by the legislator, notably in the name of public policy. Labour law and consumer law have been strongly influenced by this model of contract and status. Due to the inequality of bargaining power, freedom of contract has been limited in the name of public policy, notably weaker party protection. This vision of the law in terms of contract and status should not, however, elude the development of intermediate forms of regulation. Labour law has, thus, a strong tradition of collective bargaining through trade unions. The works councils, which have gained recognition at European Community level,2 also depart from the classical paradigm. Consumer law, in France at least, offers another example of these intermediate forms of regulation, considering the terms of consumer contract may be assessed by a consultative committee, the commission for unfair contract terms.3 These non-classical forms of regulation are particularly developed in the field of biomedical research. The distance of biomedical research law from classical private law regulation has sometimes led to the denial of its legal character. ‘Soft law’ is not law, we sometimes hear. The evolution that legal sources have encountered, notably the increase of self-regulation, makes it necessary to include it within the law. In this respect, the usual reference to bioethics should not mean that biomedical research is a subject for ethics only. It is also a legal issue and, in this respect, the increasing legal control of research can be analysed as a move from bioethics to biomedical law. A brief analysis of the legal regime of biomedical research (1.1.) is sufficient to demonstrate the importance of self-regulation in this domain (1.2.). 1.1. The Legal Regime The following developments will take as a starting point French law. A brief comparison will be carried out with the law in the United Kingdom and in the United States. 1.1.1. French Law Biomedical research has been legally regulated, starting from a statute law of 20 December 1988. The purpose here is not to lay down in detail the rules that apply to biomedical research (all the more so as a revision of the law is very 2 3

European works council, Directive 94-45 of 22 September 1994. ‘Commission des clauses abusives’.

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likely in the months to come) in order to transpose and implement the European Directive 2001/20/CE of 4 April 2001. The main purpose of the following developments is to point out the overall logic of the law applicable to biomedical research: a delegation of power by the State to local committees, limited by criteria that these committees are bound to respect. The law applicable to biomedical research is based on the following logic: – First, statute law lays down broad criteria An important aspect of the regulation of biomedical research is that it is not governed by formal and general prohibitions. Rather, it is based on general and flexible criteria that enable the appraisal of the research with regard to its various implications. The criteria laid down by French law are mainly the following:4 – the research has to be based on the latest scientific knowledge, – the research must aim at developing scientific knowledge, – there has to be proportionality between the risks encountered by the person and the benefits expected from the research for science, – the persons who carry out the research must have appropriate expertise, – the consent of the person is necessary to carry out the research; it can be removed at any time. – Second, the appraisal of these criteria is left to a local committee The legislator, probably aware that the appraisal of such criteria cannot easily be left solely to the judge, who has no specific expertise on the issue of biomedical research, has instituted committees. These are called ‘consultative committees for the protection of persons in biomedical research’.5 The terminology is not neutral. These committees could probably have been called ‘ethics committees’. Yet, insisting on the idea of protection of the person is more appropriate to integrate considerations such as the fundamental rights of the person. The move from ethics or morals to fundamental rights, which is not limited to the law of biomedical research, is not insignificant; it legitimates a more intense control of the law. The role of the committees for the protection of the person is essential, considering its approval is a requirement for the research to be carried out. The composition of these committees is thus strictly ruled. They are composed of twelve persons whose function and expertise are delimited by the law: these 4

Articles L 1121-2, L 1121-3, L 1122-1 Code de la santé publique. Comités consultatifs de protection des personnes dans la recherche biomédicale (CCPPRB), Article L 1123-1 Code de la santé publique. 5

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should be doctors with appropriate experience in the field of the research; a general practitioner; and persons from the legal, social, and psychological or ethics domains. 1.1.2. The Law in the United Kingdom6 and in the United States Although differences can be isolated, the regulation of biomedical research obeys the same logic in the United Kingdom and in the United States as in France. The law of biomedical research is also based on general criteria that integrate the implications of the research for science as well as the necessity to protect the person, notably through his or her consent. The appraisal of these criteria is also devoted to local committees, and the judge, even in legal systems that grant him a central role, plays a limited role. The United Kingdom is specific, considering the criteria are not laid down at State level, but by the Royal College of Physicians. The level of self-regulation is even higher. In this respect, the source of biomedical law is based on guidelines rather than statute law, which is particularly significant in a field that cannot be totally governed by the State. A comparison with the law of the United States would also show similarities. Decision-making power on the research is devoted to ethics committees, under the name of Institutional Review Boards (IRB), that must be composed of five members or more. The plural representation within the committee is guaranteed through requirements concerning expertise, race, gender, and social background, among others. It must be asserted that the approval of the IRB is only necessary for the project to be financed. The specificity of the law applicable to biomedical research with regard to classical private law regulation deserves some comment. 1.2. Understanding the Originality The issues involved in biomedical research, notably with regard to the dignity of the person, explain the inadequacy of the model of freedom of contract. The code of Nuremberg adopted in 1947 is in itself a justification for legal intervention in this field. Yet, State interventionism does not appear as an appropriate alternative to freedom of contract. Several reasons may be given for this.

6 The law of the United Kingdom should also be revised to implement the EC directive of 4 April 2001.

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First, scientific progress requires a regulation that should be flexible, ‘soft’. Formal prohibitions, except in some areas that affect to an excessive extent fundamental rights such as the respect for dignity (the debate is open as far as cloning is concerned), do not appear fully appropriate. Second, the complexity of the issues involved requires an important role be left to the actors in the context. Committees of experts may appear more accurate than the judge in this respect. Yet, they should be considered as complementary. It is not the purpose of this paper to discuss the appropriateness or the dangers of such a conception of legal regulation. Yet, an essential issue here is the control of these bodies by the judge in order to maintain state control of biomedical research. This is an issue that will have to be raised in the near future, notably in the name of fundamental rights, whose respect must be protected and controlled by the State and its authorities. Indeed, even though the devolution to specific committees appears necessary in this field, it is important that the judge should be able to control the approval or refusal of the research by the committee. Even though the plural composition of committees is a guarantee, it is not sufficient. Self-regulation is, and should be even more, controlled and limited. 2. The Challenge to Comparative Law Legal comparison, in its simplest form, is limited to the comparative study of norms. Such a comparison, in the field of biomedical research, can only be of limited heuristic value. Can the provisions of French law, those of the law of the United Kingdom, and those of the law of the United States be compared, whereas the norms laid down by the legislator or by the Royal College of Physicians, are broadly the same? If we draw a parallel with labour law, the issues are the same. Can one compare French dismissal law and that of the United Kingdom by opposing the French provisions that require a real and serious cause for dismissal7 and those of the law of the United Kingdom that are based on the notion of ‘reasonable dismissal’? The mere analysis of the provisions of dismissal law as to the requirement of justification does not help to compare French dismissal law and that of the United Kingdom. These difficulties are caused by the indeterminacy of norms, which is a challenge for comparative law. Two directions can be followed to go beyond a mere comparison of the norms laid down in the texts relative to biomedical research.

7

‘Cause réelle et sérieuse’, Art. L 122-14-3 Code du travail.

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2.1. The Comparison of Models The comparison of models is a globalizing approach that consists of inserting the legal rules within a model. Although the concept of model does not constitute a category of the legal discourse, the idea that underlines the concept strongly impregnates legal thinking and, even more, social thinking. The model can be defined as a cognitive tool that enables the analysis of an object through a process of generalization. Used for comparison, the model has the advantage of going beyond legal norms: models include the tradition of the country in which the legal system occurs, the importance of the different actors involved in the legal system (judge, legislator, etc.). Models are very common tools for the comparatist, especially when they compare ‘civil law’ countries, such as France, with ‘common law’ countries. Several classifications of models may be used in the field of biomedical research. The first classification would oppose a model based on the autonomy of the individual and one based on the protection of the integrity of the person. Indeed, biomedical research may encounter a conflict between the consent of the individual to the research and the protection of that person, notably with regard to dignity. Consent cannot, indeed, justify anything, notably the violation of the dignity of the person.8 Even though the autonomy of the individual is of particular importance in common law countries such as the United Kingdom and the United States, it would be caricatured and inadequate to analyse the laws of these countries with regard to biomedical research, and numerous areas indeed, in terms of individual autonomy. The dangers of models is indeed, through generalization, that of excessive simplification. A second classification would lead to the opposition between judge-made law and legislation. It is well known that the judge plays an essential part in the elaboration, not only the application, of the law in the United Kingdom and in the United States. Yet, the law of biomedical research does not fit appropriately into this framework, considering the limited role of the judge, even in these common law countries. To sum up, it seems that the law of biomedical research is reluctant towards models, as if it could pretend to some universality.

8 Yet, the concept of dignity should be used with caution, considering it can bear different meanings. It is sometimes associated, in the common law countries, with the autonomy of the individual, whereas it is, in other countries such as France, associated with the protection of the integrity of the person.

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2.2. The Context of Application of the Norm The second tool of analysis is radically distinct from the idea of models. Rather than globalizing the analysis, it consists of taking account of the context of implementation of the rule. The limits of the comparison of models can indeed, before all, be explained by the fact that the differences between legal systems concern to a greater extent the implementation of rules rather than their enactment. This can be particularly useful as a way to compare national laws that will result from the implementation of the European Community law Directive 2001/20/CE. It is essential, indeed, in order to detect the differences between legal systems, to analyse the way the legal norm is used by those who are entitled to apply it, that is to say, the local committees. An interesting issue could be the study of the discussions within the committees in order to understand the weight obtained by the different categories of persons within the committee. How does pluralism work in practice? What kind of values do the members of the committees integrate? Do they integrate financial considerations, although they ought not according to the law? In this respect, do actors integrate considerations that are not taken into account by the law? We may have to acknowledge that ‘soft law’, such as the law relative to biomedical research, does not require abstention from the jurist. On the contrary, it requires more from him – that is to say, the elaboration of theories and tools of analysis that enable to discover what may lie behind soft and flexible norms. The challenge for the jurist is certain, considering his usual tools of analysis are not sufficient (codes, case law, etc.). But the task is important, if not essential, considering the essential role that the law has to play in domains that involve the dignity of the person, such as biomedical research. The development of methods of comparison is thus required, in this field, as well as in others. The only purpose of this paper was, in this respect, to encourage those interested in legal theory to embrace the law of biomedical research, which probably requires different tools and methods of analysis than those required for classical private law regulation. References Vacarie, I./Ginon, A.-S./Lokiec, P. (2000), Recherche biomédicale et procéduralisation du droit, July, research financed by the GIP ‘mission de recherche Droit et Justice’ and the Ministry of employment and solidarity.

Paternalism and Bioethics Macario Alemany As is widely believed, paternalism is a frequent form of behaviour in the sphere of medicine and psychiatry. Some of the following acts could be considered examples of medical paternalism: the prescribing of a placebo, the healing of a patient without his consent, the enforced hospitalization of a psychiatric patient in order to prevent him from harming himself, the withholding of information from a patient about the gravity of his illness to avoid his suffering from depression, or the concealment of less effective therapeutic alternatives which might nevertheless be preferred by the patient. In this article, I will consider the problem of the justification of medical paternalism. To do so, I will first use work by Bernard Gert and Charles M. Culver,1 which, in my opinion, constitutes a profound, systematic, and useful contribution to bioethics in general and, in particular, to the problem of paternalism. These authors start from the premises that (1) paternalistic behaviour is omnipresent in medical practice and (2) that sometimes it is justified and other times it is not, which leads them to the conclusion that establishing a procedure for justifying paternalism is one of the main problems inherent in bioethics. As a result, in their opinion, the justification of paternalism is philosophically important, as it enables us to assess the plausibility of the two traditional general ethical conceptions, consequentialism and deontology, as well as the most relevant conceptions of morality in bioethics: casuistry, the theory of virtue, situation ethics, and what they call “principlism.” According to them, none of these conceptions of moral reasoning enables one to distinguish between cases of justified and unjustified paternalism and they are, as a result, defective. Secondly, I will concentrate on the criticism which, together with K. Danner Clouser,2 these authors have directed at the use of principles in bioethics. The authors are critical with respect to the principles approach as an authentic method in the solution of bioethical problems. In their view, it is this absence of method which “specificationism,” the idea that practical reasoning must consist partly in making a norm (or an end) more specific, is rightly attempting to 1

See Gert/Culver, 1976, 1979 and 1982; Gert/Culver/Clouser, 1997. See Gert/Culver/Clouser, 1997, chapter 4; Clouser/Gert, 1990 and 1994; Clouser, 1995. 2

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remedy. Thirdly, basing myself on an idea put forward by Manuel Atienza,3 I will maintain that the principles approach in bioethics could find solid support in the work carried out on principles in the sphere of legal philosophy in the last few years and that, in particular, “specificationism” would find a theoretically developed model in the method used to settle hard judicial cases on the grounds of principles. Finally, I will return to the problem of the justification of paternalism from the principles approach. 1. The concept of paternalism is extraordinarily complex. It was probably Hart who first used it, in the sphere of contemporary legal philosophy, to refer to a collection of criminal norms whose aim is “to protect individuals against themselves.”4 However, it was especially after a very well-known article by Gerald Dworkin, entitled “Paternalism,” that the question of the concept of “paternalism” gave rise to an interesting and prolonged philosophical discussion.5 Dworkin defined paternalism as “the interference in a person’s liberty of action justified by reasons referring exclusively to the welfare, good, happiness, needs, interests, or values of the person being coerced.”6 The difficulty inherent in the concept of paternalism has, to my mind, two fundamental causes: one, the pejorative nature of the term, and the other, the difficulty which arises when trying to give a definition which includes all the cases which are usually qualified as paternalistic. In this way, the countless definitions put forward can be classified, on the one hand, as normative or neutral and, on the other hand, as narrow or broad. Gert and Culver’s proposal, the one which interests us now, is clearly normative and broad. It is normative because, in their opinion, paternalistic behaviour is a kind of behaviour which always requires justification. This implies, in Gert’s moral theory, that to act paternalistically towards a person is to violate a moral rule with respect to that person, because only those acts which violate moral rules require justification. It is broad because any of those acts which violate moral rules – chiefly killing, causing pain, causing a disability, the de3

See Atienza, 1999. Hart, 1963, 31. 5 This article was first published in 1971, in Wasserstrom, R. A. (ed.): Morality and the Law, Ed. Wadsworth Publishing Co., Belmont, 1971, pp. 107–126. The following reprints of the latter exist: in The Monist 56, no. 1 (1972), pp. 64–84; in Sartorius, Rolf: Paternalism, Ed. University of Minnesota Press, Minneapolis, 1987, pp. 19–34; and in Feinberg, Joel, and Jules Coleman: Philosophy of Law, Ed. Wadsworth, Belmont, 2000, pp. 271–280. A translation of the latter into Spanish, by Jorge M. Seña, exists and has been included in the collection of essays: Derecho y Moral. Ensayos analíticos, edited by Jerónimo Betegón and Juan Ramón de Páramo, published in 1990. 6 Dworkin, 1987, 20. 4

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privation of freedom or pleasure7 – can (when other conditions are met) constitute paternalistic behaviour. Consequently, paternalism is defined as follows: P is acting paternalistically towards S if and only if: (1) P intends his action to benefit S; (2) P recognizes (or should recognize) that his action towards S is a kind of action that needs moral justification; (3) P does not believe that his action has S’s past, present, or immediately forthcoming consent; and (4) P regards S as believing he can make his own decision on this matter.8 In accordance with this definition, Gert and Culver put forward the following examples of paternalism: Case (1): An adult, Mr. K, at his wife’s insistence, has been taken by the police to the emergency room of a hospital. Moments before, the wife had confessed to her husband that she had been unfaithful to him. Mr. K had then become greatly agitated, saying that he was going to kill himself with the pistol that he kept at home. In the emergency room, Mr. K looks extremely tense and agitated and simply watches those present. The physician advises him to be admitted into hospital, but Mr. K refuses. Finally, the physician commits Mr. K for a 72-hour emergency detention. Case (2): Mrs. R, a 29-year-old mother, is admitted into hospital with abdominal pain. The medical examination shows that she is suffering from an incurable cancer with only a few months to live and with great suffering before her. Despite the fact that the woman has specifically asked to be told exactly what she is facing, the physician informs her that the results of the examination are not conclusive and that he will see her weekly as an outpatient. Mrs. R feels better after the appointment. The physician hopes to prolong Mrs. R and her family’s happiness before having to tell her the harsh truth. Case (3): Mrs. B is about to have a life-or-death operation as a result of a car accident, in which one of her children has died. Mrs. B asks the physician about her children and he lies to her, saying that the children are worried about her. The physician decides to hide this information from her because he thinks that, in her condition, knowing the truth could kill her. Case (4): A patient in rehabilitation loses interest in the exercises that she must do daily with the help of a physical therapist in order to recuperate the strength and mobility in her right arm and leg. The therapist tries to persuade her of the importance of completing the exercise programme. When this is not effective, he becomes rather stern, and scolds and chastises her for two days. The patient then relents and begins exercising again, but it is necessary for her therapist to chastise her sternly almost daily to obtain her continued participation.

7 8

On Gert’s moral theory, see: Gert, 1975, 1989 and 1998. Gert/Culver/Closer, 1997, 196.

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According to our authors, paternalistic behaviour is sometimes justified and sometimes not. In their opinion, the procedure for justifying paternalism, which is an application of Gert’s moral theory, consists of two main steps: (1) Using the morally relevant features to determine the kind of violation of moral rules which has taken place (2) Estimating the foreseeable consequences of that kind of violation being publicly allowed The first step involves answering each of the questions which refer to the list of moral characteristics relevant to the type of violation in question: (1) What moral rules would be violated? (2) What harms would be (a) avoided (not caused), (b) prevented, and (c) caused? (This means foreseeable harms and includes probabilities as well as kind and extent.) (3) What are the relevant beliefs and desires of the people towards whom the rule is being violated? (This explains why physicians must provide adequate information about treatment and obtain their patients’ consent before treating.) (4) Does one have a relationship with the person(s) towards whom the rule is being violated such that one has a duty to violate moral rules with regard to the person(s) without his consent? (This explains why a parent or guardian may be morally allowed to make a decision about treatment that the health care team is not morally allowed to make.) (5) What benefits are being caused? (This means foreseeable benefits and includes probabilities as well as kind and extent.) (6) Is an unjustified or weakly justified violation of a moral rule being prevented? (7) Is an unjustified or weakly justified violation of a moral rule being punished? (8) Are there any alternative actions that would be preferable? (9) Is the violation being done intentionally or only knowingly?9 (10) Is it an emergency situation that no person is likely to plan to be in?10 9 In order to explain this difference the authors give the following example: “many people would publicly allow nurses to give terminal patients enough morphine to relieve their pain although everybody knows that this could accelerate some patients’ death. Nevertheless, even when no other characteristic morally relevant to the situation changes, they would not allow the nurses to give morphine with the intention of accelerating their patients’ death.” They go on to add that this distinction explains what seems to be correct in the well-known “double effect” doctrine. See: Gert/Culver/ Closer, 1997, 49.

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The second step involves answering the decisive moral question, that is to say, “would the foreseeable consequences of that kind of violation being publicly allowed, that is, of everyone knowing that they are allowed to violate the moral rule in these circumstances, be better or worse than the foreseeable consequences of that kind of violation not being publicly allowed?”11 The combination of these two steps leads, in Gert and Culver’s opinion, to the assertion that in most if not all cases, in order to justify paternalistic behaviour it is necessary, but not sufficient, that the harm prevented for S by the moral rule violation be so much greater than the harm, if any, caused to S by it, that it would be irrational for S not to choose having the rule violated with regard to himself. When this is not the case, then the behavior cannot be justified on paternalistic grounds. If it is not irrational for S to choose suffering the harm rather than having the moral rule violated with regard to himself, then no rational person can publicly allow the violation of the rule in the same circumstances. For that is the same as publicly allowing someone to force their own rational ranking of harms on someone else who has a different rational ranking: No rational person wants this kind of violation to be publicly allowed.12

In our authors’ opinion, in the first case of paternalism mentioned before, the physician could claim that the harms Mr. K was prevented from suffering, those of death or serious injury, are far greater than the harm inflicted by the deprivation of liberty for 72 hours. In this case, Mr. K’s desire to kill himself is irrational because he does not appear to have “an adequate reason” to do so. An adequate reason would be the belief that his death would avoid serious evils, or produce great good, for himself or for others. In addition, there is proof that situations like that of Mr. K are transient. In such circumstances any rational person would accept that this type of violation of moral rules be publicly allowed and, therefore, the paternalistic intervention is strongly justified.

10 Gert/Culver/Closer, 1997, 38 and 229. In the context of medical paternalism, some of these questions are more important than others: in this way, the answer to question 7 is always “no.” The answer to question 6 can occasionally be affirmative when the conduct is in part paternalistic and in part is not: for example, the enforced hospitalization of an individual to avoid his harming others or himself. The answer to question 9 is that the act is nearly always intentional. The answer to question 10 is nearly always “no,” because, by definition, paternalistic behaviour usually takes place in non-emergency situations, since in emergency situations, where there has been no time to ask for consent, the expectation of being able to count on the immediately forthcoming consent usually avoids the consideration of the act as paternalistic. The authors point out that the answer to question 4 distinguishes their proposals from others. In their opinion, physicians have no such obligation except in emergency situations. The rest of the questions – 1, 2, 3, 5, and 8 – help one to know that facts are relevant when determining if a paternalistic act is justified, explain the authors. 11 Gert/Culver/Clouser, 1997, 231. 12 Gert/Culver/Clouser, 1997, 233.

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In case 2, the physician could maintain that the harm avoided, psychological suffering, is far greater than the harm produced by the deception. However, in our authors’ opinion, this is in no way true, given that with his deception he is depriving the patient and her family of the opportunity to make plans and to confront her death in an adequate way. Moreover, there are no irrational desires on the patient’s part. In this case, there are two rational rankings of harms, that of the physician and that of the patient. “Would any rational person hold that such deception be publicly allowed, that everyone knows that they are allowed to deceive in these circumstances [our authors wonder]? Since publicly allowing this [they answer] amounts to allowing deception in order to impose one’s own ranking of harms on others who have an alternative rational ranking, we think no rational person would publicly allow such a violation.”13 Therefore, we are dealing with a case of unjustified paternalism. In case 3, the deception is, on the contrary, indeed justified, insofar as one agrees that to tell the truth would significantly increase the risk of death and that, given the transient nature of the deception, the patient is not deprived of the opportunity to make plans or take decisions. To publicly allow this type of deception would, no doubt, mean a slight loss of trust in physicians’ opinions, but this would be made up for by the human lives saved. The justification of paternalism which involves deceiving shows the importance of the second step of justification and the differences between this method and the simple negative utilitarianism (whose aim is to minimize harms). In case 4, an alternative to the therapists’ action, and equally paternalistic, would have been to deceive the patient by exaggerating the negative consequences of not following the therapy properly. From a utilitarian point of view, this alternative is even less harmful than constantly scolding the patient and the effects, in terms of minimization of harms, would be the same, which would lead to it being the preferred course in a utilitarian assessment. However, as our authors point out, the opposite conclusion is drawn when considering the foreseeable consequences of publicly allowing this behaviour in a context, that of medical practice, in which trust is so important.14 13

Gert/Culver/Clouser, 1997, 235. One question raised by this procedure of justification is that of the role played, if any, by the notion of “competence” within it. Gert and Culver have not maintained the same criteria on this point. In Philosophy in Medicine, published in 1982, they held that irrationality, and not competence, is the key normative concept which should be used in order to determine when it is morally justified to annul some cases of refusals of treatment. In this work, they defined incompetence in the following way: “a person is incompetent to do x if it is reasonable to expect anybody in his position, or any normal adult human being, to be able to do x, and this person cannot (and his inability to do x is not due to a physical disability)” (p. 54). In the context of medical paternalism, the “x” in this definition is equivalent to “consenting to or refusing treatment” and the ability required for this would be that of understanding and appreciating 14

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2. Thus, we get to the criticism of the conception of moral reasoning prevailing in bioethics, which our authors call “principlism,”15 which is characterized by its calling on of four basic principles in bioethics: (1) nonmaleficence: one must not cause harm to another person: (2) justice: a person cannot be treated in a different way from another except when there exists a relevant difference between them; (3) autonomy: peoples’ right to have their own point of view, to choose and to carry out actions based on values and personal beliefs must be recognized; and (4) beneficence, which implies actions of a positive type: to prevent or to eliminate harm and to do good.16 Our authors address a variety of critical comments to the principles approach in bioethics. An important number of these refer to the fact that the principles in bioethics do not provide true action guides and that, in addition, they blur the distinction between norms and moral ideals. Nevertheless, I would here like to focus on their more general criticism on principlism, that is, the absence of a method explaining how to rank principles or how to resolve the conflicts between them, which in their opinion would subsist even if these principles were interpreted as action guides. Let us now see some of their assertions: (1) “Even if the individual principles are interpreted as action guides, they often conflict with each other.”17

the relevant information. Contrary to most conceptions, our authors held that in some cases it was justified to undermine a competent patient, who understands and appreciates the information, but who takes irrational decisions. However, in Bioethics: A Return to Fundamentals, published in 1997, the authors recognize that their theory seriously diverges from juridical tradition and they reconsider their position on competence. So, now they define “the competence to take medical decisions” as “the capacity to make a rational decision,” (p. 137) introducing, in this way, the idea of rationality within that of competence. When a patient takes a seriously irrational decision he is most probably incompetent. When the irrational decisions are serious and persistent they show that the person is incompetent to take such decisions. 15 See Gert/Culver/Clouser, 1997, 71–92. 16 The version of this theory, taken by the authors as a reference, is that put forward by Beauchamp/Childress, 2001, in its first editions 1979, 1983, and 1989. The last editions, 1994 (4th edition) and 2001 (5th edition), already incorporate an important revision of their initial approaches, which causes it to diverge from the paradigmatic version of “principlism” (which, nevertheless, still has great prestige in the sphere of bioethics). These principles have a fundamental precedent in the “Belmont Report,” a result of the work carried out by The National Commission for the Protection of Human Subjects of Biomedical and Behavioural Research, created by the U. S. Congress in 1974 (of which Tom L. Beauchamp was a member). The report pointed out that, with respect to research on human beings, the three fundamental bioethical principles are the following: the principle of respect for persons, the principle of beneficence, and the principle of justice. For a brief description of the contents of Beauchamp and Childress’s principles I have based myself on Atienza, 1999, 70. 17 Gert/Culver/Clouser, 1997, 87.

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(2) “Principlism simply says to weigh or balance the principles against each other without providing any instructions on how to do that weighing or balancing.”18 (3) “The use of principles seems to be an unwitting effort to allow the use of whatever ethical theory seems best suited to the particular problem one is considering. It is simply a sophisticated technique for dealing with problems ad hoc.”19 (4) “Principlism does not recognize that for a moral decision to be correct it must be one that can be publicly allowed. It not only does not recognize the unified and systematic nature of morality, it does not recognize that the moral system, or morality, must be public.”20 In our authors’ opinion, this criticism has led to some theoretical developments whose aim is the conversion of the principles of bioethics into real action guides which would point in the right direction.21 Among them they highlight the method they call “specification,” mainly devised by Henry S. Richardson in his article “Specifying Norms as a Way to Resolve Concrete Ethical Problems.”22 The “specification” method takes as a starting point the belief that when resolving concrete ethical problems with norms apparently only two alternatives exist: (1) the solution of the problem by means of the application of a norm, which implies proceeding in a deductive way, or (2) balancing the norms against each other, which implies proceeding in an intuitive way.23 The application method results in unsolvable contradictions when two norms contain different solutions to an ethical problem. The balancing method avoids these contradictions, but, as Richardson underlines, “to the extent that balancing is genuinely distinct from application it affords no claim to rationality, for to that extent its weightings are purely intuitive, and therefore lack discursively expres-

18

Gert/Culver/Clouser, 1997, 86. Ibidem. 20 Gert/Culver/Clouser, 1997, 88. 21 “Although the addition of ‘specification’ [the authors say] to principlism might be indicative of its demise (no longer being the atheoretical principlism we have known and criticized), there is no doubt that specification is a move in the right direction . . . Richardson’s attempt to make principlism more systematic is certainly a move in the right direction, but it is just a beginning . . . We applaud the embracing of specification by principlism, for it shows that those supporting principlism recognize the need for a theory to explain and support it. However, as far as we know, neither Richardson nor those who embrace his modification of principlism provide any theory,” (Gert/Culver/Clouser, 1997, 88–89). 22 See: Richardson 1990, 1991 and 2000; Gert/Culver/Clouser, 2000. 23 Richardson, 1990, 279. 19

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sible justification.”24 The alternative, proposes this author, is specification, which is defined in the following way: Norm p is a specification of norm q (or: p specifies q) if and only if (a) norms p and q are of the same normative type; (b) every possible instance of the absolute counterpart of p would count as an instance of the absolute counterpart of q (in other words, any act that satisfies p’s absolute counterpart also satisfies q’s absolute counterpart);25 (c) p qualifies q by substantive means (and not just by converting universal quantifiers to existential ones) by adding clauses indicating what, where, when, why, how, by what means, by whom or to whom the action is to be, is not to be, or may be done or the action is to be described, or the end is to be pursued or conceived; and (d) none of these added clauses in p is irrelevant to q.26

Richardson adds that his method of specification requires, of course, rational limits which allow one to judge when a proposed specification is better than another. In this way, he proposes a “coherence standard for the rationality of specification,” which, in his opinion, “carries the Rawlsian idea of ‘wide reflective equilibrium’ down to the level of concrete cases.”27 3. The fact that the theory of principles of bioethics is moving towards specification cannot but give philosophers of law the sensation that communication between bioethics and legal philosophy could be fruitful. This is the idea developed by Manuel Atienza in an article which bears the significant title of “Juridificar la bioética.”28 In this paper, when assessing some of the criticism directed at the principles approach in the sphere of bioethics, the author points out that “there is a type of juridical conflict whose solution is precisely that of ‘weighing up’ contrasting principles and that, to deal with these cases, a certain

24

Richardson, 1990, 283. On this condition, the author adds the following explanation: “by referring to the absolute counterpart of the specified norm, clause (b) enables specification to be defined in terms of the ordinary notion of containment without requiring that specification proceed from absolute norms. It can therefore rule out making an exception by disjunction. That is, if the original norm says “when you have received great benefits from someone that were not simply your due, you should generally express your gratitude to him or her,” this cannot be specified to read “when you have received great benefits from someone that were not simply your due, you should generally either express your gratitude to him or her or surreptitiously aid his or her child.” An act that satisfied the second norm by aiding the child could fail to satisfy the first norm’s absolute counterpart” (p. 296). In conclusion, the specification always implies an operation of extensional narrowing. 26 Richardson, 1990, 296. 27 Richardson, 1990, 300. 28 Atienza, 1999. 25

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methodology has been developed which could also be useful when applying the principles of bioethics to concrete cases.”29 Atienza underlines two features of the principles in the application of law which could answer some of Gert, Culver, and Clouser’s criticism mentioned before: (1) “in the application of Law (even when what must be applied is essentially principles), there is more than simple stereotypes or maxims which lack any internal order;”30 and (2) although principles are not apparently organizable into hierarchies “this does not mean that some type of organization in the process of their application cannot – or rather, must not – be established: the point is that this organization does not take place exactly on the level of principles, but on that of rules.”31 Atienza illustrates this “juridical method” of applying principles with three cases from the Spanish constitutional case law, which in various ways resolve a conflict between the principles of, on the one hand, the right to honour, to privacy, and to freedom from injury to reputation (Spanish Constitution, section 18), and, on the other hand, freedom of speech and information (section 20). In one of these, the Friedman case (Constitutional Court Sentence 214/1991, 11 November), the Constitutional Court decided an application for a declaration of fundamental rights brought by Violeta Friedman on the grounds of infringement of her right to honour, supposedly caused by the statements made to a magazine by a well-known Belgian Nazi, León Degrelle. Degrelle maintained in an interview that the Holocaust had never existed, that Dr. Mengele was a normal physician and other similar comments. Mrs. Friedman, whose family had been gassed in Auschwitz on Mengele’s orders, considered these public statements to be a violation of her right to honour. The Constitutional Court, explains Atienza, began by making reference to two criteria which characterize its own doctrine in this respect. First, freedom of speech (expression of views and opinions) has a bigger scope than freedom of information (statement of facts), since “veracity” can only be required in relation to the transmission of information. Second, the right to honour is of a personal nature, which is why its protection is more intense when one deals with natural persons than when one deals with juristic persons or a group of persons. In accordance with these criteria, and given that the Court judged that León Degrelle’s statements were protected by freedom of speech and referred to a group of persons, it appeared that the decision had to be that of dismissing the appeal. However, the Court put forward a new criterion on which the declaration of fundamental rights was based: freedom of speech does not include “the right to make statements, expressions or campaigns of a racist or xenophobic nature.” 29 30 31

Atienza, 1999, 73. Atienza, 1999, 75. Ibidem.

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In Atienza’s opinion, this and other judicial cases show a conception of rationality which could be characterized in the following way: There is a considerable degree of coherence between the decisions; they are based upon criteria whose aim is to become universal; they produce socially acceptable consequences; and (of course) they do not contradict any constitutional clause . . . insofar as they do not simply constitute solutions to a case, but they aim to serve as patterns for the future, they also constitute an ‘imperfect’ precautionary mechanism. Finally, since there are grounds for these decisions, that is to say, they are decisions in favour of which reasons are put forward, which aim to be intersubjectively valid (at least, for anybody who accepts the previous requirements of coherence, universality, acceptability of the consequences and that of respect for Constitutions), they can also be criticized (rationally) and, if it comes to it, modified.32

4. Here, finally, I would like to return to the problem of the justification of paternalistic behaviour. In accordance with the above, the principles approach in bioethics could find an interesting model in the method used to settle difficult judicial cases on the grounds of principles. Therefore, perhaps the best way to illustrate the possibilities of using principles in discussions on bioethics, and how to establish the justification or unjustification of paternalistic acts with them, would be to resort to an analysis of a judicial case. In order to do this, I have used a European Court of Human Rights Judgment (ECHR 2002/9, 26 February), Ms. H. M. v. Switzerland. In this case, the applicant, who was placed in an old persons’ and foster home on account of neglect, complains that this measure constitutes an unlawful deprivation of liberty. The facts of the case are, briefly, as follows: the competent Swiss authorities, at the request of the social services, placed an old woman in a foster home against her will on account of serious neglect. When she was placed in the foster home, Ms. H suffered from leg sores, deteriorated eyesight, a serious lack of personal hygiene, and significant weight loss resulting from bad nourishment. The conditions in her home were similarly bad. The son with whom she lived, who is disabled, obstructed the social services’ visits. The old woman did not wish to be placed in the foster home and argued that she could look after herself with her son’s help. Later, in the application stage, the authorities judged that Ms. H had a mental weakness and added that this alone would be sufficient for her placement in the foster home. The Court considers firstly if Ms. H’s placement in a foster home constitutes a deprivation of liberty (envisaged in article 5 of the Convention) or only a restriction upon liberty (envisaged in Article 2 of Protocol No. 4).33 The dis32

Atienza, 1999, 82. Deprivations of liberty are envisaged in Article 5.1 of the European Convention of Human Rights and Fundamental Freedoms, which establishes a general prohibition of deprivation of liberty and a list of exceptions to that prohibition. Among them, in subparagraph e), the following exception is established: “if the case is that of place33

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tinction between a deprivation of liberty and a restriction upon liberty, notes the Court, is a matter of degree and is not qualitative. As is commonly thought, in order to determine if Ms. H’s placement in a foster home constituted a deprivation of liberty, the elements to be taken into account are the referred individual’s specific situation and the following factors: the type of measure, its length, effects, and the way in which it is carried out. In their opinion, the measure imposed on the applicant is similar to that questioned in a previous case, Nielsen v. Denmark (ECHR 1988/24). In this case, a twelve-year-old child had been placed for five months in a psychiatric ward at his mother’s request. The Court stated that the placement in the ward should be qualified as a restriction upon liberty because the restrictions suffered by the child were not very different from those which are imposed upon any child in an ordinary hospital; the living conditions in the ward were “the most similar possible to his real home;” the treatment lasted five and a half months; and, at the end, the restrictions became more relaxed as the treatment advanced. With respect to the applicant’s situation, the Court notes the following: (1) Ms. H was offered the possibility of staying in her home and receiving care from the social services; (2) her living conditions deteriorated seriously when she refused to collaborate with these services; (3) the placement order was due to the serious state of neglect in which she found herself; (4) “both the hygiene and living conditions in the applicant’s home, and the medical care which she was receiving were insufficient;” and (5) “that particular foster home, which was located in an area that the applicant knew, could provide her with the necessary care.” With respect to the circumstances of the placement in the foster home, the court points out that (6) the applicant was not placed in a closed ward, (7) she enjoyed freedom of movement, and (8) was able to maintain social contact with the outside world. Finally, the Court points out that (9) the applicant was hardly affected by her stay in the foster home (as opposed to the son, who did not want to lose his mother) and that, on various occasions, she showed indecision about which solution she preferred. Taking all of this into account, the Court concludes that “in the circumstances of this case, the placement of the applicant in a foster home did not constitute the deprivation of her ment, according to the law, of a person who is capable of spreading a contagious disease, of a person of unsound mind, or of an alcoholic, a drug addict, or of a vagrant.” In this case, the Swiss government’s contention was that the placement of Ms. H could be included in the exception of “the placement of a vagrant,” with a broad interpretation of “vagrant,” or, alternatively, in that of “a person of unsound mind.” Restrictions upon liberty are envisaged in Article 2 of Protocol No. 4, which, in subparagraph 3, establishes that freedom of movement and residence “cannot be subject to more restrictions than those which, envisaged by the law, constitute, in a democratic society, necessary measures in order to maintain the national security, public safety and public order, crime prevention, protection of health or morality, or the protection of rights and liberties of third parties.”

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liberty in the way envisaged in Article 5.1, rather, it constituted a responsible measure adopted by the competent authorities in the applicant’s interest:” therefore, the Court holds that a violation of the above mentioned Article 5.1 has not taken place. In the judgment we also find two dissenting opinions: one concurring vote and one dissenting vote. The judge who casts the concurring vote believes that the applicant’s placement in a foster home does constitute a deprivation of liberty. In his opinion, the relevant elements for this conclusion are the following: (1) the Swiss authorities themselves considered this situation as a case of deprivation of liberty; the judge notes that in the national legislation a distinction is made between welfare measures which imply deprivation of liberty and measures which do not imply that (for example, outpatient care agreements); (2) the applicant had not accepted her placement in a foster home; (3) the police had been resorted to in order to enforce the measure; (4) this action was subject to no time limit; and (5) although it is true that the applicant was not held “under lock and key,” she would not have been able to leave the foster home and return to her home had she wanted to. Consequently, he concludes that this case is not similar to Nielsen v. Denmark, in which, in addition, a non-emancipated minor was involved. However, this judge holds that the applicant should be considered of “unsound mind” and that, therefore, her placement in a foster home could be justified by the exception stated in Article 5. 1. e), which leads him to the same conclusion as the majority, but for different reasons, that a violation of Article 5.1 had not taken place. The judge who casts the dissenting vote accepts the grounds put forward by the judge who casts the concurring vote on whether the measure constituted a deprivation of liberty or not. Moreover, he brings into question two former judgments adopted by the Court which, in his opinion, would give support to a solution contrary to the one adopted by the majority. In one of them, De Wilde, Ooms and Versyp v. Belgium (ECHR 1971/1), the Court had held that “the fact that a person voluntarily undergoes a specific kind of detention” does not prevent the measure from being considered a deprivation of liberty; the mandatory nature of these measures, the Court added, is not annulled by the applicant’s wishes. Finally, the dissenting judge finds that, in order to determine if the measure in itself constitutes a deprivation of liberty, the fact of whether or not such a measure is in the interests of the person affected should not be taken into account either. This, he adds, is understood because some of the exceptions envisaged in Article 5.1 of the convention, which refer to the prohibition of deprivation of liberty, would also be of a paternalistic nature (for example, in cases of unsound mind, in order to avoid harms to the person of unsound mind himself). Furthermore, this judge finds that a legal declaration of “unsound

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mind” had not been made and that, consequently, this exception to the general prohibition of the deprivation of liberty34 was not applicable. In conclusion, the judge maintains, against the criteria held by the rest of the Tribunal, that a violation of Article 5.1 had indeed taken place. In my view, this last analysis could be used as an example to illustrate some ideas outlined in the present article: (1) The judges’ reasoning, in many cases, would be closer to the general practical reasoning than the ethical thinkers usually believe. As a result, the way in which the reasoning in some judicial decisions uses principles could give rise to a method in bioethics. In this judgment, in particular, this can be seen in the fact that the majority in the Court does not only limit itself to the consideration that Ms. H’s placement in a foster home is just a restriction upon liberty (which would be sufficient to not grant the appeal filed by the applicant on the grounds of unlawful deprivation of liberty), it also tries to demonstrate that it was a case of justified restriction. Consequently, the majority in the Court incorporates into its reasoning the circumstances in which Ms. H found herself and other considerations relevant to the suitability of the measure and to the harm which would probably be avoided. In the justification of the measure we can see that the principles in question are, on the one hand, the principle of autonomy, which lays down that “every individual has the right to decide on what affects him”35 and, on the other hand, a principle that we could call the principle of welfare, that would authorize interference in individuals’ decisions regarding themselves, which could seriously damage their welfare interests.36 Among them would figure the interest in enjoying a good enough state of health to look after oneself. (2) The judges’ reasoning consists of two steps: firstly, the classification of Ms. H’s placement in a foster home as a restriction upon liberty and secondly, the adoption of a rule which resolves the case. This second step does not consist in the mere inclusion of the facts in one of the system’s valid rules, but in the making of a rule taking the system’s plausible principles as a starting point. The “specification” carried out by the majority in the Court in order to resolve the case could be put in the following way: (I) If a paternalistic placement in a foster home takes place in circumstances 6 to 9, then it constitutes a case of restriction upon liberty. 34 Finally, in his opinion, one cannot make a broad interpretation of the term vagrant, which was the intention of the Swiss government, since the exceptions envisaged in Article 5.1 should be interpreted in a restrictive way. 35 Atienza, 1999, 84. 36 A feature of these welfare interests is, firstly, that when they are negatively affected, the person is seriously harmed, since his ultimate aspirations are also negatively affected; and, secondly, that they form a chain no stronger that its weakest links. On the notion of “welfare interest,” see: Feinberg, 1984, 40 ff.

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(II) If the following conditions exist together, then a paternalistic restriction upon his liberty is justified: (A) a person is not sufficiently capable of looking after himself, (B) this person is going through a serious deterioration in his health, and (C) the measure is the least restrictive efficient alternative.

(3) The judges’ discrepancies arise within a framework of agreement and they follow a rational method of reasoning, which helps to make progress with the constant aim of finding the best possible solution to the case. Judges who cast dissenting votes would disagree with classification one but not with rule two. The discussion regarding this classification focuses on two elements: one, whether the person’s circumstances (1 to 5, in the reasoning of the majority) should be taken into account and, the other, how does it affect the question when, during the detention, the applicant shows no opposition whatsoever to the continuation of this situation. In my view, with respect to the first element, the majority introduces these considerations more to show the measure as justified than to determine if it is a case of restriction or deprivation. I believe that the dissenting judge puts forward a good argument when he notes that the fact that a measure is or is not justified, or is or is not paternalistic, should not be an influence when considering whether it is a restriction upon liberty or a deprivation of liberty. With regard to the second element, the majority could adduce in its favour that, as the two judges who cast a particular vote rightly point out, it is true that a measure does not cease to be mandatory just because its addressees observe it willingly, but that probably, the enforcement of the measure ceases to be coercive. When the judges who cast their own opinions point out the fact that the police implemented the detention, in my view, their intention is precisely to indicate the existence of this coercion in the enforcement of the measure; the point is that all the other circumstances of the detention, the applicant’s statements and, even, her subsequent consent, point in the opposite direction.37 I think it is important to emphasize that the judges’ discussion itself can be seen as part of a continuous process in which solutions are refined and the understanding of principles is improved. In cases similar to that of Ms. H, the European Court could, for example, use the distinction between a mandatory measure and a measure enforced coercively, which appears to be adequate when answering the observations made by the dissenting judge. 5. I would like to finish by briefly listing the conclusions reached in this article: (1) I have tried to show that, in the context of bioethics, the problem raised by the concept and justification of paternalism is fundamental. The work carried out by Gert and Culver on paternalism constitutes a fertile contribution 37 Approximately one year after being placed in the foster home, Ms. H agreed to live in the old people’s home of her own free will, and the authorities lifted the placement order.

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to the issue of when paternalistic behaviour is justified. Furthermore, I completely agree with their thesis about considering the justification of paternalism as a key problem to test different moral theories. (2) Much of Gert, Culver, and Clouser’s criticism of principlism and, even, specification is correct regarding the context of bioethics. Nevertheless, I think some of this criticism could be rejected using insights from legal theory that show a more interesting and fruitful theory of principles. (3) Consequently, the theory of principles in law could be used to improve some of the most controversial aspects of the approach of principles in bioethics: particularly, that of the method for resolving difficult cases using principles. References Atienza, M. (1999), Juridificar la bioética, in Vázquez, R. (ed.), Bioética y Derecho (Fundamentos y problemas actuales), México, D.F.: Itam-FCE. Beauchamp, T. L./Childress, J. F. (2001), Principles of Biomedical Ethics, New York/ Oxford: Oxford University Press. Clouser, K. D. (1995), Common Morality as an Alternative to Principlism, Kennedy Institute of Ethics Journal 5. Clouser, K. D./Gert, B. (1990), A Critique of Principlism, The Journal of Medicine and Philosophy 15. – (1994), Morality vs. Principlism, in Gillon, R. Principles of Health Care Ethics, New York: John Wiley & Sons. Culver, Ch. M./Gert, B. (1982), Philosophy in Medicine (Conceptual and Ethical Issues in Medicine and Psychiatry), New York/Oxford: Oxford University Press. Dworkin, G. (1987), Paternalism, in Sartorius, R. Paternalism, Minneapolis: University of Minnesota Press. Feinberg, J. (1984), Harm to Others (The Moral Limits of the Criminal Law), New York/Oxford: Oxford University Press. Gert, B. (1975), The Moral Rules, New York: Harper Torchbooks. – (1989), Morality (A New Justification of the Moral Rules), New York/Oxford: Oxford University Press. – (1998), Morality: its Nature and Justification, New York/Oxford: Oxford University Press. Gert, B./Culver, Ch. M. (1976), Paternalistic Behaviour, Philosophy & Public Affairs 6, vol. 1. – (1979), The Justification of Paternalism, Ethics 89. Gert, B./Culver, Ch. M./Clouser, K. D. (1997), Bioethics: A Return to Fundamentals, New York/Oxford: Oxford University Press.

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– (2000), Common Morality versus Specified Principlism: Reply to Richardson, The Journal of Medicine and Philosophy, 25. Hart, H. L. A. (1963), Law, Liberty and Morality, Oxford: Oxford University Press. Richardson, H. S. (1990), Specifying Norms as a Way to Resolve Concrete Ethical Problems, Philosophy and Public Affairs, 19. – (1991), Practical Reasoning about Final Ends, Cambridge: Cambridge University Press. – (2000), Specifying, Balancing, and Interpreting Bioethical Principles, The Journal of Medicine and Philosophy, 25.

Medical Care and Patients’ Decision Making: The Building of the Options in a Situation of Dependency Silvina Alvarez Patient and physician have a special and difficult relationship: the former expects to receive reliable and accurate information, personal care and scientific accountability; the latter has to perform her job on a scientific and humanitarian basis without losing the perspective of a responsible but detached professional worker. The scientific knowledge, experience, and personal background situates the physician in a dominant position which very often results in a paternalistic attitude towards the patient: the physician makes a diagnosis, decides a treatment and prescribes it to the patient. In order to avoid paternalistic performances, the doctrine of informed consent has been developed. Physicians cannot make any decision about which treatment to undertake unless the patient has previously consented to it on the basis of adequate information. To be informed about different options and to be able to effectively undertake them is a condition of personal autonomy, and this is the aim of informed consent: giving the patient the information necessary to establish her options and to act on the basis of self-determination. But which is the kind of information physicians can transmit to their patients? Is medical information about diagnosis and possible treatments enough for the non-physician, non-experienced patient to make a decision about which is the best treatment for her? Can the perspective of the patient be as informed and complete as to achieve the decision she would achieve in an ideally informed situation? Of course the information the patient receives will always be partial in some way, since physicians can only inform about a limited amount of scientific facts. But which are the relevant facts for the patient to be able to act as an autonomous agent? Does autonomy require full access to information? These are questions we can pose about the objective conditions the person needs in order to exercise autonomy. But what about the subjective disposition of the agent? Is a patient, i. e. an ill person who may suffer a serious illness, able to make the kind of independent-rational thinking personal autonomy requires? If so, is a patient able to make decisions of the sort informed consent requires? Is a terminal patient able to do so?

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In the following pages I want to examine the elements involved in the patient-physician relationship. First, personal autonomy, its meaning, ways of enhancing it and limits to its exercise. Second, the notion of informed consent, its extension and exceptions. Third, waiver of informed consent: Does it imply waiving autonomy? Is it an expression of weakness of the will? Or is it maybe an indication of trust in the physicians? 1. Patients’ Decision Making: A Subjective Capacity on Existing Conditions The Kantian concept of personal autonomy defines it on the basis of two conditions: rationality and independence. An autonomous agent acts according to rational decisions – those for Kant are based on universal moral rules – free from external impositions.1 The notion of independence refers to the absence of external determinants or obstacles which could decisively influence the agent’s will. The will of the autonomous person must be expressed freely through personal choices based on non-externally-constrained decisions. We can hardly think about a decision which is fully non-constrained, since normally people are influenced by so many different factors and circumstances. However, independence as a condition for personal autonomy does not mean to ignore the existence of such factors or circumstances, but implies that the agent has to be capable of evaluating them and being herself the ultimate instance of a conscious-mind decision. About the first condition, rationality, this is very much linked to the second condition, since for making independence possible the person has to act rationally, i. e. the person has to settle her own reasons for action. Through these reasons – which are the result of connecting ideas by applying the rules of logic – we can explain our attitudes and actions. Rationality confers internal coherence to the various actions of an individual and endows her with critical capacity for deducing or inferring ideas, working out conflicts, discerning and evaluating possible ways of action (see Young, 1986, 10–12). 1 Joseph Raz points out the distinction between Kantian moral autonomy and personal autonomy. The first is a consequence of the Kantian principle that moral rules are those ones the person can rationally come up with. There is no other valid set of rules or way of coming up with them. Morality, as understood by Kant, is not only a set of universally valid rules the agent accepts, but the rules are those enacted by the agent herself. Personal autonomy, instead, refers to the capacity of the agent to make her own decisions. Raz adds that, while moral autonomy is an aspect of morality – about the way moral rules are conceived – personal autonomy is an element of morality, or at least of some moral theories (1986, 370 footnote 2). This distinction, however, allows a very important link between moral and personal autonomy, since moral rules can only be enacted by a rational will. According to the Kantian conception, the autonomous person – who acts rationally and independently – is the only one able to conceive the rules of an autonomous morality.

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These two requirements, rationality and independence, which seem to provide a clear picture about what autonomy amounts to, are nonetheless insufficient: they don’t fully explain the complex process the rational and independent agent has to go through in order to come up with an autonomous decision.2 In order to complete the concept and explain this process better, the list of conditions for autonomy has been enlarged. Different authors have pointed out new elements for the comprehension of autonomy, such as self-government, reflection, mental aptitudes, psychological or intellectual maturity, critical attitude, and other capacities and dispositions of the individual. The accent has been placed on one element or the other in order to highlight various aspects of autonomy linked to a range of different themes, like obedience to authority, political obligation, neutrality, moral responsibility, personal identity and the capacity to make life plans, or the possibility to avoid paternalism in situations of dependency – as is the case for an ill person. Among the contributions of the last decades on the study of the conditions for personal autonomy, I want to focus on two of them because of their special relevance in explaining the process of decision making a person follows in the pursuit of an autonomous choice: Harry Frankfurt’s ‘order of preferences’, on the one hand, and Joseph Raz’s ‘relevant range of options’, on the other hand. According to Frankfurt, the capacity of individuals to reflect about themselves, about their possible decisions and actions, takes them through a process of critical evaluation which is characteristic of human beings’ way of reasoning, in order to establish “second order desires”, (1971:6–7). Second order desires help to question our immediate preferences or first order desires. Thus, supposing I have a spontaneous desire – a first order desire – which pushes me to spend my savings for renewing the decoration of my flat, it will be postponed if I favour another desire I place on a superior level – a second order desire – and which questions my first order attitude by advancing a different motivation – for example, one which privileges spending my savings for going on holidays to the seaside. In this sense, ordering means “giving a hierarchical position to our attitudes” or “stratifying preferences”3 (Bayón, 1991, 58–94). The fact that an individual “wants something” or “desires something” very often is not a simple fact but a complex phenomena, since the motivations underpinning such a desire or preference may provoke in the agent all sorts of conflicts. Even if, according to a simple definition second order desires are those the agent has “when he wants to have or not to have a certain desire of the first order” (Frankfurt 1971, 7), the relationship between desires is more 2

About the problems of practical reason in Kant, see Colomer, 1995, 49–72. Even if in this paper I will focus only on Frankfurt, other authors have also studied this topic from different perspectives. For an analysis about preferences – and about desires, interests and values as reasons for action – see Bayón, 1991, part I. 3

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complex. Frankfurt distinguishes second order desires composed only of the very desire of wanting something, from second order desires which comprise the intention that the wanted desire transforms into will (1971, 10). The distinction between simple second order desires and “effective” desires is important since for Frankfurt the fact individuals have effective desires is what constitutes them as persons; only those who have effective desires can be considered as persons: “the essence of being a person lies not in reason but in will” (1971, 11). But Frankfurt specifies this is not to mean that whenever the reason is not present we can still refer to individuals as persons: it is only in virtue of his rational capacities that a person is capable of becoming critically aware of his own will and of forming volitions of the second order. The structure of a person’s will presupposes, accordingly, that he is a rational being. (1971, 11–12)

Once rationality has been established as a necessary premise, Frankfurt focuses on the question of determining when an individual has carried out her will. According to the author, it is only when effective desires can be executed – i. e. when the will can make second order desires become concrete facts – that we can affirm a person is free, not only for desiring what she desires, but also for executing her will (1971, 15). The dominion of the person over her will advances an important element for the formation of autonomy. Now we can present it as a specific way of acting which requires (1) an agent capable of evaluating the importance she confers to her desires in order to form an order of preferences, and (2) exercising selfdominion sufficient to execute her preferred desires. It would be objected, however, that both (1) and (2) can be included under the premise of rationality as stated in the Kantian definition of autonomy. Preferences stratification is a specific form of practical reason: the agent who evaluates the importance she confers to different desires and chooses according to their relative importance acts as a rational agent, as an agent capable of thinking logically. Dominion over the will is also a condition of Kantian practical reason. Notwithstanding rationality – as the capacity to think logically – could include the premises of Frankfurt analysis, it seems very helpful to introduce more specific elements about the extent of the concept of autonomy, since it is a central notion of moral theory which requires the most clear definition. The second essential element for a complete characterization of the concept of autonomy is Raz’s conception about the quality of the options a person should have in order to exercise her autonomy. Among the conditions for the exercise of autonomy Raz includes the existence of “an adequate range of options” – the author adds two other conditions: mental capacity and independence (1986, 372). At first sight, this condition may seem excessive or disproportionate since almost nobody has real access to all the options one would

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want to have, at least not as effective or immediate possibilities to be fulfilled. However, this is not a condition to be satisfied at every single moment according to the capricious perspective of the agent, but a condition for avoiding trivializing personal autonomy as a capacity for choosing. In other words, the agent has to be enabled for effectively making relevant decisions. Furthermore, we shouldn’t forget that the options take form in specific cultural frameworks and are strongly determined by them. According to Raz, the value of the options depends also on the context in which they come into consideration and on the value such a context confers to personal autonomy (1986, 390–395). Consequently, the options will be adequate depending on the context in which the agent exercises her autonomy. Such a context, says Raz, changes depending on the society and the historic time we are considering, demanding a new definition about what it means to be autonomous in each case. This case-dependent definition, however, seems to affect the content of the choices made by the agent but not the formal conditions for acting autonomously. According to Raz’s conception, adequate options have to be neither trivial options only – like eating at one time or the other, using red or green clothes, having short or long hair – nor options that situate the agent in the position of having to choose between life or death – as is the case in the well-known Raz example, when “the hounded woman” can only choose between escaping all the time or letting the carnivorous beast kill her. Obviously, there are moments in the life of a person when the range of options diminishes, and in such cases the person will have no choice but to choose among the existing alternatives, even if they are not really satisfactory. But if the life of a person is always constrained by the election among options which compromise survival, then it is not possible to say that person has an autonomous life. In the words of Raz: a choice between survival and death is no choice . . . An adequate range of options must therefore meet an additional separate condition. For most of the time the choice should not be dominated by the need to protect the life one has. A choice is dominated by that need if all options except one will make the continuation of the life one has rather unlikely. (1986, 376)

The condition of the relevant options as an essential element for personal autonomy may pose objections on at least two aspects. First, to establish which the relevant options are could be a difficult task, considering that being “relevant” or “adequate” is very often connected to the moral evaluation of the options. Thus, if in each case the existence of certain options is going to be required while the absence of others ignored, we could, in this way, be supporting a perfectionist conception of personal autonomy. Sustaining the existence of a value-pluralist range of options – as Raz seems to do – does not solve the problem entirely, if it is the case of adopting a non-relativist moral position according to which some options are of no value and, consequently, its existence as an option would be neither necessary nor desirable. This discussion

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about the quality of the options takes us far from our initial definition of personal autonomy as a formal capacity of the rational agent. According to this definition, Carlos Nino affirms that autonomy has a prima facie moral value which transcends, in a way, the actions performed as a consequence of that capacity. The latter could be evaluated as morally mistaken, or wrong, or just abhorrent, while autonomy preserves its value (Nino 1991, 130–148). Therefore, the value conferred to the autonomous decision comes apart from the value of the actions such a decision may lead to. To illustrate this separation, Nino quotes the paradigmatic case of the autonomous decisions of an “authentic Nazi”. According to the definition of autonomy as a capacity, it has an intrinsic moral value independent of the outcomes of its exercise – which sometimes may be ethically deplored. The question to be posed in this respect is about the value of the autonomous decision: Does it preserve its value even when the content of the autonomous action is ethically blameworthy? Or does the value of the action determine the value of the capacity itself? The condition about the relevance of the options establishes a difficult and very often morally committed evaluation; nonetheless, such an evaluation still seems necessary. Think about another aspect of the relevance condition that, as stated by Raz, arises when we pose the following question: Can we say a person is autonomous if he or she only has the possibility of making trivial decisions? Imagine a citizen from a modern political society who can only choose between two qualitatively similar options; let’s say she can only choose between reading newspaper A or newspaper B, both of them run by the same editorial board. In this case, the person doesn’t seem to have access to substantially different journalistic options and the choice, therefore, will not be a genuine one; talking about choosing in a case like this seems merely a rhetoric assertion. In the same way, the person who can only choose between reading newspaper C which only informs about weather conditions and newspaper D which only informs about the traffic conditions doesn’t seem to meet a relevant range of options in the context where the choice is made – a modern political society. These examples draw attention to the fact that the notion of autonomy cannot be a purely formal one. We see now that the condition of the adequate options takes us to the domain of a concept of autonomy not necessarily defined by the substantive outcomes of its exercise, but positively defined by the substantive conditions of that exercise. Second, it would be objected that the notion of relevant options is dependent on the idea of independence, i. e. it is only a specification of the necessary independence for the agent to make an autonomous decision. In other words, the person will probably act on a more independent basis – without coercion or manipulation by other people or by the context – if she has numerically suffi-

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cient and qualitatively adequate options. Only if these options are real ones, i. e. if the individual has the possibility of effectively choosing among them, will she is in the position of making a non-dependent choice. However, if the condition of independence is evaluated considering the options the agent has, another aspect of autonomy comes to our attention. We have defined autonomy as a capacity and have said the way the agent exercises it varies according to the context; then, even if there are universal conditions in the definition, these have to be integrated with the particular elements of the sphere of exercise. Rationality and independence are the universal conditions which denote the way of exercising autonomy as a human capacity, and they could be attributed to any person in any context. In this sense autonomy is strictly subjective. But as it has been pointed out by Raz, we can say that a person is more or less autonomous only after the evaluation of the position of that person considering the possibilities her society and time offer. This new approach to autonomy stresses its objective dimension, which can be stated only after meeting the sphere of decision making the person lives in. We can conclude, therefore, that the condition of the relevant options enriches and guarantees autonomy in plural and complex contexts of rational decision making. Summarizing, the conditions about ordering our preferences according to their first or second order status, and having an adequate range of options, make a better description of personal autonomy. The former reinforces the internal or subjective aspect of autonomy as a decision-making capacity; the latter focuses on the context as an external or objective aspect necessary for the effective exercise of autonomy. 2. Informed Consent Relying on the definition of autonomy here proposed, we have to grasp now which is the best way to promote self-determination for ill persons. As we have already said, in order to empower autonomy it is crucial that the patient has the information necessary to choose among the available options which would determine her life. It is the case that normally the patient depends entirely on the information the physician supplies to her. Physicians are in a hierarchically dominant position in relation to their patients, and in such a situation guarantees have to be provided in order to protect the patient. It is in this context that the doctrine of informed consent has emerged. 2.1. Definition Informed consent has been ethically justified on the basis of different ethical theories, mainly deontologists and consequentialists, depending on the emphasis put on the intrinsic importance of certain values and the respect of individual

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rights, or in the benefits of positive consequences for patients, physicians or society as a whole (see Beauchamp/Childress, 1983, 19–58, 67–69; Appelbaum et al., 1987, 17–25, 26–28). For the most part, however, both the doctrine and the legislation have adopted a conception of informed consent centred on the defence and promotion of personal autonomy, which is the central value on the basis of Kantian deontologist theories and constitutes the foundations of individual rights (see Alvarez, 2002, 167–172). Buchanan and Brock place the foundation of informed consent on both self-determination and the patient’s well-being: First, self-determination is, generally speaking, of considerable instrumental value for a competent individual – the assumption being that a competent person’s own choices, at least under conditions of informed consent, are more likely to promote whatever particular interests that person has than are choices made by others. Second, self-determination is said to be of considerable value, independently of whether it does in fact enable an individual to promote other interests. Recognizing the right of the competent person to accept or refuse medical care or treatment is simply a concrete way of showing respect for self-determination as such and as a contributor to well-being in one important area of decision making. (1989, 91)

The first important question to be clarified about informed consent is about the notion of information: How much information does the patient need? Which is the information she will be able to fully understand? In any case, will the patient really understand the information she receives and be able to decide according to it? This last question seems the first to be answered, since the plausibility of informed consent depends on the patient’s comprehension, i. e. on her capacity or competence. Informed consent presupposes competence: only those patients who are competent – who have mental and psychological faculties for exercising autonomy – will be in the position of establishing with the physicians the sort of relationship that enables them to get information and consent to or reject a treatment. To decide whether a patient is a competent person is not an easy task. Many studies have been developed about a patient’s capacity of decision making, and standard tests have been designed for determining the level of competence of a patient.4 Diverse capacities of the patient determine her competence: cognitive 4 The success of the tests to determine a patient’s competence is far from absolute, and tests can hardly offer a precise result. The methods to measure mental competence have to be evaluated in each case. Since competence and incompetence are very much related to psychological and contextual elements, measuring competence sometimes means to inquire into the causes of the possible incompetence. As S. P. K. Welie suggests, the idea that tests can be used as instruments which provide a precise and unquestionable outcome should be abandoned. Instead, the tests should be used like procedures useful for discovering the strategy to be followed in each case, in order to promote the preferences of the patient (2001, 147). In addition to the tests, there are other ways of evaluation of the patient’s situation through non-standardized evaluations or diagnostic sessions with psychologists, psychiatrists or specialized medical staff (Buchanan/Brock, 1989, 70–75).

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capacity to retain and understand the information, capacity to manipulate such information, freedom to choose among different options, capacity to express one’s own choices (Welie, J. V. M./Welie, S. P. K., 2001, 133–135; Welie, S. P. K., 2001, 141; see also Beauchamp/Childress, 1983, 70–74, and Buchanan/ Brock, 1989). Even when measuring the degree of these capacities in a patient becomes an empirical fact – with the inherent problems of such measuring – determining the criteria for competence and deciding whether a person is competent or not in hard or dubious cases is not only an empirical task. In cases of illness, determining the degree of mental or psychological competence necessary for making autonomous decisions is an evaluative task, consisting in weighing different aspects of the agent’s actions and conferring value to them (see Beauchamp/Childress, 1983, 73–74; Buchanan/Brock, 1989, 41–47; Dekkers, 2001, 186–187). This amounts to re-examining personal autonomy on its subjective or formal aspect, since rationality, and also independence, are conditions to be measured according to the level of mental ability a person may show. Once more, autonomy reveals itself as a gradual capacity and its value is to be determined comparatively; this way, illness confronts us with the necessity of re-examining what we may consider normal levels of competence. Once competence has been evaluated, we have to face the question about the quality and quantity of information the patient should receive. First of all, we have to keep in mind that an ill person, who has to carry the difficulties and constraints imposed by illness – which could be more or less severe depending on the seriousness of the patient’s situation – is always in a relative position of fewer opportunities. In so far as illness limits the agent’s possibilities for action, it reduces the options of the ill person. Accordingly, the aspect we have defined as the objective dimension of autonomy – about the variety of options the agent should enjoy – will be reduced. As long as the options are reduced autonomy as a capacity is reduced as well: the agent loses autonomy, becomes more dependent, and has a diminished decision-making power. This situation becomes critical in the cases of terminal patients or patients whose lives depend on a peremptory medical intervention or treatment. These kinds of patients will find the options they have involve survival: to accept or reject a treatment may imply to choose between life or death. As we have seen analysing Raz’s definition of relevant options, such a set of options would prevent a full accomplishment of autonomy. In these cases, the quality of the options compels to gradually losing autonomy. The doctrine about informed consent has been developed precisely because of the conviction that more and better information about the illness and its consequences, and an adequate provision of medical care, can contribute to improving the exercise of the patient’s autonomy – which is in itself diminished. A related topic is posed by Onora O’Neill (2002) about the fact that increasing the autonomy of the patient may imply decreasing her trust in the physi-

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cian. The obligation of more and accurate information to be given to the patient has caused in many cases physicians to reproduce standard amounts of medical knowledge, in a repetitive, mechanical, and far-from-personalized way. The patient often perceives this kind of standardized information the physician transmits regularly and impersonally as a clear burden for the doctor, who seems to be willing just to fulfil her obligation of obtaining the informed consent. As O’Neill says, a “context of trust” seems to be missing: “He or she [the patient] faces not a known and trusted face, but teams of professionals who are neither names nor faces, but as the title of one book aptly put it, strangers at the bedside [Rothman, Strangers at the Bedside]” (O’Neill, 2002, 20). Sometimes, with this kind of approach the patient may not perceive the information as an efficient source for autonomous decision making, but may feel puzzled and insecure. In order to prevent this kind of situation and help the patient to settle her mind, not only information itself, but also the way it is transmitted becomes crucial. Considering these premises, we can now focus on the conditions stated in the different definitions on informed consent. In the relationship between patient and physician, the autonomy of the former is confronted with the duty of the latter of re-establishing health conditions or prolonging the life of the patient. Informed consent wants to solve the confrontation guaranteeing the patient the right to be assisted on the basis of the conditions she decides. Thus, T. L. Beauchamp and J. F. Childress propose a notion of informed consent mainly centred on the protection of personal autonomy: In recent years virtually all medical and research codes of ethics have held that physicians must obtain the informed consent of patients before undertaking significant therapeutic research procedures. These consent measures have been designed largely to protect the autonomy of patients and subjects, but they serve other functions as well. Alexander Capron has helpfully identified several important functions. 1. The promotion of individual autonomy 2. The protection of patients and subjects 3. The avoidance of fraud and duress 4. The encouragement of self-scrutiny by medical professionals 5. The promotion of rational decisions 6. The involvement of the public (in promoting autonomy as a general social value and in controlling biomedical research) In this chapter we accept the view that the primary function of informed consent is the protection and promotion of individual autonomy. The communication between a health professional and a patient should prevent ignorance from constraining autonomous choice, whether ignorance is present from a lack of information or a

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lack of comprehension. Our theory therefore generates requirements of comprehension as well as disclosure. (1983, 67)

Others, like Appelbaum, propose informed consent to be understood as an agreement between patient and physician, as the result of interaction, dialogue and compromise; thus, a balance between the preservation of health and the patient’s dignity would be achieved. On this basis, Appelbaum et al. propose the following definition on informed consent: This idea is the core notion that decisions about the medical care a person will receive, if any, are to be made in a collaborative manner between patient and physician. The concept also implies that the physician must be prepared to engage in – indeed or initiate – a discussion with the patient about the available therapeutic options and to provide relevant information on them. (1987, 12) The legal requirements for informed consent generally specify what kind of information doctors must disclose to patients and sometimes how consent should be obtained. An example of these legal requirements is the generally accepted rule that physicians must inform patients of the nature, purpose, risks, and benefits of any treatment they propose to perform, as well as any alternative forms of treatment that may exist for the patients’ conditions. (1987, 14)

We can notice different nuances in these two definitions. The second one emphasizes that the patient-physician relation has to be one of open dialogue in order to produce the information each patient needs. Besides, the disposition of doctors for dialogue may be understood as a kind of care provision, a way for generating trust in the professionals and the information they transmit.5 2.2. Relevant Information and the Exceptions to Informed Consent Since it is not possible to disclose to the patient all the information the physician may have – as a consequence of her education, work in the field of medical care, professional experience on similar cases, etc. – “standards of disclosure” have to be established considering both the physician’s capability and the patient’s requirements. According to Jerry Menikoff: the patient’s right of self-decision shapes the boundaries of the duty to reveal. That right can be effectively exercised only if the patient possesses enough information to enable an intelligent choice. The scope of the physician’s communications to the patient, then, must be measured by the patient’s need, and that need is the information material to the decision. Thus the test for determining whether a particular peril must be divulged is its materiality to the patient’s decision: all risks potentially affecting the decision must be unmasked. And to safeguard the patient’s 5 About a conception of medical ethics based on “communicative ethics”, see Smith, 1996; about the concept of care, see Noddings, 1995; about the concept of care and its relevance in medicine, see Fry, 1992.

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However, which is the information the patient needs in order to make a decision is still difficult to determine, since the sphere of decision making is subjective and the extent of the need of information may vary from patient to patient. Some judicial decisions by courts in the USA “required the physicians disclose as much information as a patient would want to know” (Appelbaum/ Lidz/Meisel, 1987, 44).6 This statement suggests some ideas about the limits to the information given to the patient and about the limits to personal autonomy. It would be the case that when deciding the extent of the information to be given to the patient, the physician could observe an objective standard about what a patient wants or needs to know in order to take an informed decision.7 Following Appelbaum et al., the formulation of such a standard by the American courts during the Seventies was characterized as follows: This new formulation of the standard of care was variously referred to as a lay, legal, or patient-oriented standard – lay, because the adequacy of disclosure was applied by laypersons (jurors) unaided by expert witnesses; legal, because it was imposed by courts rather than by medical custom; and patient-oriented because its aim was that patients be provided with information that would enable them to make intelligent choices. (Appelbaum et al., 1987, 44)

The application of objective standards may be a useful tool for the provision of proper information – even if it may displace the promotion of the context of trust and care we mentioned before. But the limits to the information to be given to the patient would be fixed according to more subjective elements, that is, according to what each patient manifests she wants to know. In order to introduce the subjective dimension of the necessary information, it is useful to mention first some exceptions to the right of informed consent the doctrine has widely recognized. Terrance McConnell states five exceptions which he says “indicate that there are societal interests other than and in addition to self-determination” (McConnell, 2000, 66).8 The cases are as follows:

6 The authors point out this standard of disclosure was fixed by different courts in 1971 and 1972. Canterbury v. Spence is the leading case on the subject (1987, 44). 7 The Canterbury court stated that “respect for the patient’s right of self-determination on particular therapy demands a standard set by law for physicians rather than one which physicians may or may not impose upon themselves”, quoted in Appelbaum/Lizd/Meisel, 1987, 44. 8 See also Menikoff, 2001, 164–165, who mentions two main exceptions to the “general rule of disclosure”: one, “when the patient is unconscious or otherwise incapable of consenting” – mainly cases of emergency – and the other, when “risk-disclosure poses such a threat of detriment to the patient as to become unfeasible or contraindicated from a medical point of view” – such as the case in which the physician has the privilege to decide on therapeutic grounds.

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(1) emergency: “treatment is needed immediately, the patient lacks decisionmaking capacity and there is no surrogate available to act on the patient’s behalf” (2) incompetence: “ordinarily, however, when a patient is not competent, informed consent must be obtained from an authorized surrogate” (3) therapeutic privilege: “when this exception is invoked, the duty to disclose certain information is suspended if in the physician’s judgment disclosure of that information would be harmful to the patient. For example, if in the physician’s judgment the patient is apt to become so distraught upon hearing certain information as to lose the ability to make decisions, then the physician may withhold that information when soliciting consent, even if that information is otherwise pertinent. This exception is controversial because it seems to authorize health care providers to treat certain patients in a strongly paternalistic manner; and it was precisely a rejection of such paternalism that served as the basis of the seminal judicial decisions regarding informed consent.” (4) third parties: cases in which other persons would be affected unless certain medical actions are performed. Such is the case with contagious diseases like tuberculosis or others; in these cases, “the duty to disclose information is not what is suspended. But the duty to obtain consent – authorization from the patient – may be suspended if that is what is necessary to prevent the well-being of others from being put at risk; the freedom of patients is curtailed to the degree necessary to protect the public.” (5) waiver: “when the patient voluntary relinquishes the right of informed consent”. It was recognized in Cobbs v. Grant “when the court asserted that ‘a medical doctor need not make disclosure of risks when the patient requests that he not be so informed’.” There is little controversy about emergency, incompetence and cases with third parties involved. Out of these five exceptions, only two seem really controversial: waiver and therapeutic privilege. These two exceptions point out two different situations depending on who decides the delegation of decision making: the situations in which the patient explicitly states her desire not to be informed accurately about illness and possible treatments, but to delegate to the physician the capacity to decide about the course of action to be taken (waiver); and the cases in which the physician evaluates the patient’s psychological disposition in order to decide which kind of information she is prepared to hear (therapeutic privilege). Another situation in between waiver and therapeutic privilege is the case in which the delegation is not explicitly stated but implicitly expressed by the patient’s attitude and interpreted by the physician. This would be a sort of tacit waiver: the patient does not want to, or is not psychologically apt to, make an explicit waiver, but lets her attitudes reveal the intention to

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waive the right to be informed and decide on the basis of such information. Of course these latter cases may be very fuzzy and difficult to identify, considering they would rest entirely on the capacity of the physician to understand the patient’s preferences in the right way. This sort of waiver may very often entail a strong form of trust in the physician. Even if waiver is in many aspects a very different case from therapeutic privilege, in both situations the physician assumes the role of deciding for the patient, putting aside her capacity to autonomously decide about herself. Cases of waiver are always difficult to solve since it would be alleged that allowing waiver – even explicit waiver – entails a devaluation of the patient’s self-determination and enhances medical authority. In the next section, problems related to waiving autonomy will be analysed.

3. Waiving Autonomy: Rejection or Affirmation of Self-determination? Waiving informed consent could be understood not only as waiving a right but also as waiving autonomy itself. However, waiving the exercise of a right does not imply waiving autonomy as a general capacity. Thus, for example, when a person decides not to exercise her right to vote in a political poll, this very fact does not make her less autonomous; on the contrary, this kind of waiver may indicate an effective exercise of autonomy: she decides not to participate in her community’s political life. We may say that as a citizen such behaviour may import a decrease in her autonomy: since she doesn’t vote, she doesn’t participate – not even indirectly – in the collective decision-making process, and, consequently, she waives her political autonomy as a citizen. In any case, we have defined autonomy as a capacity to be expressed in different degrees, so that in the example stated above we may conclude the person enjoys more or less political autonomy, but not that she has no autonomy at all. In the situation of the ill person, whose future life depends on the decisions to be taken about her health conditions, the right of informed consent protects precisely that very capacity of the individual to decide independently about her own life, without being deceived because of ignorance about the facts and without coercion. In these circumstances, waiving informed consent may imply an important loss of autonomy, since crucial decisions about the life of the ill person would be taken by people other than herself. Whenever a situation in which the quality of life in its most basic sense, i. e. in a physical sense, or even survival, is at stake, waiving informed consent doesn’t mean to refuse taking a decision on one aspect of the individual’s life but about life itself. In these cases, from the perspective of ethical commands, may the exercise of autonomy consent to waiving?

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As a value, autonomy describes a sort of action whose subjective nature can only be evaluated extensively from the perspective of the agent who acts. In other words, saying a person is autonomous means she can take certain decisions, make certain choices, and order her preferences in a certain way. That specific way of taking decisions, choosing or ordering preferences refers to the fact the decisions or choices of an autonomous person are those respectful of the conditions already analysed, i. e. those achieved under rationality and independence, distinguishing among different desires the agent order according to her priorities, and in presence of an adequate range of options – to be evaluated according not only to its empirical variety but also according to its moral relevance as well.9 And only the agent who takes the decisions is able to recognize whether a decision has been taken under these conditions, even if an external observer could verify the presence or not of at least some of the elements of an autonomous decision. This aspect of personal autonomy as a subjective capacity rests on other capacities of the agent. David Richards mentions some constitutive capacities of autonomy like “language and self-consciousness, memory, logical relations, empirical reasoning about beliefs, and their validity (intelligence), and the capacity to use normative principles in terms of which plans of action can be assessed, including principles of rational choice in terms of which ends may be more effectively and coherently realized” (1989, 206). We could add other auxiliary capacities to these constitutive ones in order to render autonomy more detailed and complex. But even in this case – and considering the importance of the core constitutive capacities which, under the proper conditions, make the exercise of autonomy possible – we can still affirm autonomy is in itself a capacity for decision making. 3.1. Permanent Abdication of Autonomy As already stated, autonomy as a capacity indicates a formal aptitude, a decision-making procedure which says nothing about the content of the decisions. However, it would be objected that since autonomy is endowed with eminent moral value, we become positively inclined to confer on autonomy a special status which seems to advocate for additional restrictions to protect its exercise. The main restriction is the limit imposed on those acts which may diminish 9 Charles Taylor proposes to distinguish between two kinds of behaviour: that of the ‘simple weigher’ and the ‘strong evaluator’. The former simply chooses among different options without evaluating their moral relevance, while the latter takes true moral decisions, in the sense she evaluates the weight or importance of the available options, considering how they qualify morally (Taylor, 1985, 16). About the differences between Taylor’s distinction and Frankfurt’s classification between first and second order desires, see Alvarez (1999, 90, footnote 33).

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other persons’ autonomy – this is the well-known limit included in John Stuart Mill’s harm principle. But there is another kind of limit we use to endorse to autonomy. We are normally prone to think that an autonomous action or behaviour – under the conditions already analysed – can only be accomplished if it does not cancel those very conditions required for its exercise. This way, we could not consider a proper autonomous decision when a person subordinates herself entirely to someone else, i. e. when she loses the possibility of rationally and independently taking further decisions. An agreement of x declaring the decision to become y’s slave neglects the value of autonomy as long as it cancels its exercise – even if the agreement would be the result of x’s will and, consequently, formally valid. It would be objected, however, that the case is similar to the right to life, in the sense this right includes the right to death: in the same way, our moral right to be autonomous should include among the range of options the possibility of being non-autonomous, i. e. of choosing not to be autonomous. If we exclude as a valid option the possibility of rejecting autonomy as a whole for the future – in the sense we would not consider a person who takes such a decision as an autonomous one – we clearly exclude an alternative from the range of options. For a substantive – perfectionist – conception of autonomy like the one Raz defends, to exclude a morally non-valuable option – as in the case with the option of constraining oneself for the future to a non-autonomous life, and considering we have defined autonomy as a fundamental moral value – wouldn’t amount to a refusal of autonomy. On the contrary, and nonetheless depriving the agent of an option, such an exclusion would reinforce autonomy, since for Raz the presence of non-valuable options is not a condition for autonomy (1986, 378–381). For the perfectionist-substantive conception of autonomy, the catalogue of options that neglects its exercise would be as long as demanding such conception is. Rejecting the option of ‘tying oneself up’, not for promoting autonomy in the future – like Ulysses when he asked to be tied up, even against his will, to avoid being captured by the sirens and to save his life – but to become absolutely heteronomous, means to remove a substantive option that, however, affects autonomy as a formal capacity. Consequently, if we want to endorse a conception of autonomy as a formal capacity for decision making, but we consider such a capacity is to be exercised not only for making trivial decisions but also and mainly for choosing among different options which entail relevant moral compromises, then autonomy gains additional connotations as a capacity to opt among different morally relevant ways of life. Furthermore, if we support a theory of personal identity as developed by Derek Parfit (1984), we may conclude that there would be good reasons for limiting the moral autonomy of agent x, since depriving herself of autonomy for the future would affect the – formal – autonomy of the persons x1, x2, x3 . . . that x will become in future successive moments – this amounts to rejecting the possi-

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bility of depriving those future moral agents of their autonomy, since we would have negative duties towards them like the duty not to frustrate the exercise of their autonomy. It would be objected that if we accept the argument about duties towards future selves, then we should accept that the right to life does not entail the right to death, since we had the duty of preserving the life of the potential persons we would become in the future. In order to meet this objection we should analyse the comparative importance of life and autonomy as moral values. We cannot enter into this analysis now, but it would be useful to mention that recognizing the right to decide about one’s own life, even for opting for death, entails recognizing the supremacy of autonomy, and then the extension of these two rights would require a separate and different evaluation. Gerald Dworkin affirms it is a mistake to support a substantive conception of autonomy. Supporting that certain decisions are not to be considered fully autonomous as long as their content neglects the very condition of autonomy implies such a substantive conception and, at the same time, rejects a purely formal definition of autonomy. Only considering autonomy as non-substantive but “procedural independence”, it is possible to think about the autonomous agent as an agent capable of embracing compromises, creating loyalties, and guiding herself by sentiments like love or altruism (Dworkin 1988, 21), even if these attitudes entail limitations to her liberty and even if they predispose her to take the decision of fully abdicating her autonomy. According to G. Dworkin, we could oppose the agent’s decision of becoming a slave only for the sake of other values, of a certain good the agent would value more than the present exercise of her autonomy (1988, 128–129). All this considered, we can think maybe some of the problems posed by the abdication of autonomy go beyond the distinction between formal and substantive autonomy, and regard a misunderstanding about the distinction between liberty and autonomy (see Alvarez, 2002). The person who decides to become a slave rejects primarily her liberty – the capacity to act without interference and according to one’s own desires or preferences – more than her autonomy – the capacity of second order of conferring value and ordering the preferences for taking further qualified decisions. The agent who, as expression of an autonomous act, decides to limit her options to the extreme of rejecting any possible option, puts herself in a situation of heteronomy which implies the maximum interference or obstacle: the decision of another person over one’s own actions. This attitude obviously affects personal autonomy which in such a situation could only be stated as a merely subjective or “adscriptive” capacity (see Fallon, 1984) in the context of a very limited scenario for action – which, from the point of view of autonomy as it has been defined earlier in this paper, would enable only irrelevant or trivial actions – but it affects mainly the agent’s liberty for action. Then, the agent’s decision of becoming a slave may be opposed

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for the sake of liberty, i. e. a background value we may presume the agent would value more than her present exercise of autonomy. 3.2. Transitory Waiver of Autonomy In the case of waiver of informed consent, waiver may be revoked by the ill person at any moment, as she decides to claim the right to receive information about possible treatments in order to make a decision on the basis of such information. The reasons for the possibility of waiver are based mainly in the very nature of the right to informed consent – a right which does not compel to its exercise, and in the fact that waiver is a way of exercising autonomy (McConnell, 2000, 71). Against waiver, it has been argued that it may imply a violation of the self-respect principle; it has been said that if a society allows this kind of agreement on waiver, other forms of behaviour and abuses may take place as well, which would lead to serious social risks (McConnell, 2000, 73–74). This argument about the social reasons which support legal rules – and about general considerations about the role of the individual in society – is similar to the arguments underpinning some paternalistic rules like, for example, many labour law dispositions or even rules prohibiting the sort of contracts which would allow slavery. If a conception of autonomy as an exclusively formal capacity is supported and, consequently, abdication of autonomy doesn’t appear as the negation of autonomy, then, in order to maintain the inconvenience of the legal approval of the contract of abdication of autonomy or enslavement, other sorts of arguments should be found. It would be said, for example, that such legislation would be at odds with the values on the basis of social regulation, and would allow all kinds of abuses against people who are comparatively less autonomous, i. e. people who have fewer opportunities. However, waiver of informed consent doesn’t seem to be like the case of abdication of autonomy. First, waiver is an option for those patients who are fully competent and decide to exercise their right not to be informed or not to decide on the basis of that information, but on the knowledge they could do it – McConnell explains that waiver presupposes the patient could claim the right she has. Second, nobody could be constrained to take or not a certain treatment because there has been a waiver; that means the person who asked not to be informed or who refused to make a decision about which treatment should be undertaken does not reject the possibility of revoking the waiver in order to exercise her right10 (McConnell, 2000, 70;78). 10 In this paper I have presupposed the case of waiver on the basis of some basic information about the patient’s illness, that the physician should provide in any case. It is hard to think the latter would avoid giving any kind of information to the patient or even lie about it – even if the patient consents to this – mainly because of reasons of profes-

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It would be objected that waiver of informed consent and, therefore, the refusal to decide for one’s own, implies waiver of autonomy: the refusal to identify, classify, and choose among our preferences. Before taking the decision of waiving, however, the agent probably ordered her preferences and decided the option not to decide about her own illness was the dominant option. But maybe it would be the case that waiver is not the result of a real preference or option not to decide, but simply a consequence of weakness of the will – the ill person, who may want to know more about her illness and face the situation, abandons sional responsibility. Some extreme example would illustrate the scarce probability of such cases. Consider the following hypothetical example posed by Menikoff: Examining a Japanese patient for rectal bleeding, you have determined that he has a malignant colon cancer. Before you can discuss this with him, his wife takes you aside and tells you that she suspects that he has cancer, but that you must not tell him so. She points out that it is common in Japan to not tell patients about terminal cancers. Assuming that she is right about the practice in Japan, are you legally bound to tell him about the cancer, since you are in the U. S.? Apart from the law, is the right thing to tell him or not to tell him? Would it matter if there were statistics from Japan showing that 90 percent of patients would not want to be told? What if that number were 70 percent? 50 percent? 10 percent? How do the statistics change the issue of dealing with a particular patient whose views about being told you do not know? How different is this patient’s situation from that of the average patient who, even apart from ethnicity, might not want to know? Is there a way to individualize the informed consent process for each person? How might you deal with such situations ahead of time, before you diagnose a cancer? (2001, 169) This very simple example allows to confront the physician’s duty to inform the patient with personal autonomy and other possible values at stake. The first question is if the physician would invoke cultural reasons in order to decide which information should be given to the patient. Is the right to be informed, as a precondition to personal autonomy, a universally shared value which the physician has to assume? From the point of view of the physician, this question should be evaluated considering the responsibility for negligence a physician would have to afford in case of misinformation. Another important issue is about how to determine what the “average patient” would need – or want – to know in order to be able to make a decision. In other words, which information is the physician obliged to disclose? Is “full disclosure” necessary or does a sort of “good medical practice” exists about what a patient has to know and what a “reasonable practitioner” has to say? (Menikoff, 2001, 162). And finally, the question about the “individual informed consent process”. Since not all patients need or want the same sort or amount of information, it seems reasonable to say care givers should individuate the necessities of each patient and act according to them. If we accept that waiver is a way of exercising autonomy, so we have to accept besides the right to know there is a right not to know (see Chadwick et al., 1997). This right not to know is sometimes explicitly expressed by the patient, but this may not be the case in most circumstances when the patient begins to understand how serious her medical situation would be. In such a situation of half ignorance and dependence on the care provided by physicians, the patient would try to express her willingness in different ways. The extremely asymmetrical relation between patient and doctor may lead the former to rely on the capacity of the latter to interpret her preferences.

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herself to an immediate, first order desire: not to know, not to take a decision. Does it mean a waiver of autonomy as a whole? To answer this question we have to recall the distinction already discussed between first and second order desires as stated by Frankfurt. According to him, the faculty to evaluate the former and oppose them to the latter is a capacity not only of the autonomous person but also of the person herself. Who acts only on the impulses of first order desires, says Frankfurt, without taking into account motivations of various strength and, even more important, without enforcing effective desires or second order volitions, couldn’t be considered an autonomous person11 (1971, 11 and footnote 5). Also David Richards defines autonomy as the faculty of ordering preferences at the time we critically evaluate them, and he adds: Autonomy, as here described, is a capacity for second-order, rationally self-critical evaluations and wants and plans. This is, in part, a description of the human will and its force in our lives. But the exercise of autonomy is not the same thing as the consistent willing of something, no matter what it is. (1989, 210) (the italics are mine)

Besides, Raz holds – consequent with his conception of the relevant options – that not all choices – not even all rational and independent choices – can be considered as decided by an autonomous person: A person is autonomous only if he has a variety of acceptable options available to him to choose from, and his life became as it is through his choice of some of these options. A person who has never had any significant choice, or was not aware of it, or never exercised choice in significant matters but simply drifted through life is not an autonomous person. (1986, 204) (the italics are mine)

Such characterization of the autonomous person can be easily included in the tradition of liberal individualism. John Stuart Mill ([1859], 1971) had already advised about the risks inherent to the behaviour of those persons who only act on the basis of customs in a society, without critically evaluating them and originally deciding about their own life. In a nutshell, we can hold personal autonomy is possible only if the person is able to ponder the options before taking a decision: the acts which result from the impulse of non-pondered desires wouldn’t be considered autonomous ones. This apparently demanding definition of what being autonomous means would classify the patient who decides to waive informed consent as a nonautonomous person. However, we could hardly say the definition proposed re11 Frankfurt affirms an agent without second order volitions wouldn’t be a person if considering his analysis, but, he adds, maybe such an agent would positively be considered a person on other bases. In fact, the concept of a person would require a deeper analysis, and Frankfurt’s assertion, hence, should be interpreted in the sense he wants to point out that an agent without second order volitions wouldn’t be an ‘autonomous’ person.

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fers to single acts but, on the contrary, to the exercise of autonomy over time, that is, a person cannot be classified as autonomous or non-autonomous because of acting in a certain way in a specific situation, but for all her actions considered in a longer period of time. The case of waiver of informed consent is the case of a concrete action which should be evaluated as part of a larger set of decisions taken by the agent; this way, we could only assess the degree of selfdetermination of the agent considering it over time. In this sense, we can understand waiver to informed consent as a transitory waiver of autonomy and not as full abdication for the future. If we accept this understanding, then waiver alone would not neglect the condition of autonomous person of the patient. Both if the decision of waiver reveals an effective desire – the presence of dominion of the will – or if it is a case of weakness of the will – the patient can’t accomplish her second order desires – it is still an act with a transitory or partial effect and it doesn’t compromises the person’s autonomy as a whole – i. e. over her entire life; moreover, it is an expression of autonomy which produces a relative decrease of self-determination for the patient’s immediate future.

References Alvarez, Silvina (1999), “Los elementos de la autonomía personal y la perspectiva comunitarista” in Isegoría, 21, 69–99. – (2002a), La racionalidad de la moral. Un análisis crítico de los presupuestos morales del comunitarismo. Madrid: Centro de Estudios Políticos y Constitucionales. – (2002b), La autonomía personal, in Diaz, E., and Colomer, J. L., Estado, justicia, derecho. Madrid: Alianza. Appelbaum, Paul S./Lidz, Charles W./Meisel, Alan (1987), Informed Consent. Legal Theory and Clinical Practice. Oxford: Oxford University Press. Bayón, Juan Carlos (1991), La normatividad del derecho: deber jurídico y razones para la acción. Madrid: Centro de Estudios Constitucionales. Beauchamp, Tom L./Childress, James F. (1983), Principles of Biomedical Ethics. Oxford: Oxford University Press. Buchanan, Allen E./Brock, Dan W. (1989), Deciding for others. The ethics of surrogate decision making. Cambridge: Cambridge University Press. Chadwick, Ruth/Levitt, Mairi/Shickle, Darren (1997), The Right to Know and the Right not to Know, Avebury: Aldershot. Colomer Martín/Calero, José Luis (1995), La teoría de la justicia de Immanuel Kant. Madrid, Centro de Estudios Constitucionales. Dekkers, Wim J. M. (2001), Autonomy and dependence: Chronic physical illness and decision-making capacity, Medicine, Health Care and Philosophy, 4, pp. 185–192. Dworkin, Gerald (1988), The Theory and Practice of Autonomy, Cambridge: Cambridge University Press.

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Epstein, Richard A. (1997), Mortal Peril. Our Inalienable Right to Health Care? Cambridge, Mass.: Perseus Books. Fallon, Richard H. Jr. (1994), Two Senses of Autonomy, Stanford Law Review, 46, 4: 875–905. Frankfurt, Harry G. (1971), Freedom of the will and the concept of a person, The Journal of Philosophy, LXVIII, I: 5–20. Fry, Sara T. (1992), The Role of Caring in a Theory of Nursing Ethics, in H. B. Holmes/L. M. Purdy (eds.), Feminist Perspectives in Medical Ethics, Bloomington and Indianapolis: Indiana University Press. McConnell, Terrance (2000), Inalienable Rights. The Limits of Consent in Medicine and the Law. Oxford: Oxford University Press. Menikoff, Jerry (2001), Law and Bioethics. An introduction. Washington, D.C.: Georgetown University Press. Mill, John Stuart ([1859] 1971), On liberty, in R. A. Wasserstrom (ed.), Morality and the Law, Belomont, California: Wadsworth. Nino, Carlos S. (1991), The Ethics of Human Rights. Oxford: Clarendon Press. Noddings, Nel (1995), Caring, in V. Held (ed.), Justice and Care, Colorado/Oxford: Westview Press. O’Neill, Onora (2002), Autonomy and Trust in Bioethics. Cambridge: Cambridge University Press. Orentlicher, David (2001), Matters of Life and Death. Making moral theory work in medical ethics and the law. Princeton: Princeton University Press. Parfit, Derek (1987), Reasons and Persons. Oxford: Clarendon Press. Raz, Joseph (1986), The Morality of Freedom. Oxford: Clarendon Press. Richards, David A. J. (1989), Rights and Autonomy, in John Christman (ed.), The Inner Citadel. Essays on Individual Autonomy, Oxford: Oxford University Press. Smith, Janet F. (1996), Communicative Ethics in Medicine: The Physician-Patient Relationship, in S. M. Wolf (ed.), Feminism & Bioethics, Oxford: Oxford University Press. Taylor, Charles (1985), Human Agency and Language. Philosophical Papers 1. Cambridge: Cambridge University Press. Welie, Jos V. M./Welie, Sander P. K. (2001), Patient decision making competence: Outlines of a conceptual analysis, Medicine, Health Care and Philosophy, 4, pp. 127–138. Welie, Sander P. K. (2001), Criteria for patient decision making (in)competence: A review of and commentary on some empirical approaches, Medicine, Health Care and Philosophy, 4, pp. 139–151. Young, Robert (1986), Personal Autonomy. Beyond Negative and Positive Liberty. London: Croom Helm.

Is there a Right to Health Care?* Pablo de Lora 1. Introduction Onora O’Neill has stated that a right to health is a fantasy, an incoherence. The reason should be obvious: to the extent that “ought implies can,” nobody, neither the government nor our fellow human beings, has the duty to make everybody healthy.1 Ultimately, “right implies can.” Therefore, we are not dealing with a “right to health,” but at best with a right to “health care,” which has as its correlative duty the display of certain efforts aimed at the recovery of health, or the prevention of disease, but not the actual achievement of a desirable end such as those that I have just mentioned. Now, the problem is, of course, that beyond what is strictly considered “attention given by hospitals and doctors,” health can be taken care of by a vast array of means. If our aim is to extend peoples’ lives, for example, we should be aware that the expenditure of large sums of money in surgery, sophisticated and expensive screening tests, drugs, and medical fees is not a guarantee for achieving an acceptable level of healthy people. If we refer to life expectancy, Spanish citizens are placed well ahead in the ranking, whereas the percentage of the Spanish GNP assigned to health care puts us back in the 20th place of the OECD countries.2 Healthy ways of life (in terms of diet, exercising, etc.) and a healthy environment are as crucial as the development of sophisticated medical and surgical technology. It seems, therefore, that a right to health care should encompass all those actions that enable every one of us to enjoy a “state of complete physical, mental and social welfare, and not only the absence of disease.” According to such a definition, given in the preamble of the Constitution of the World Health Organization in 1946, a right to health care is nothing but a right to welfare. And this, of course, poses a huge problem, as we will later see.

* I owe special thanks to Ruth Zimmerling, whose remarks and corrections on the language and the style have made this a more understandable and dignified paper. This essay is part of a research project financed by the Spanish Department of Higher Education (number BJU2002-00467). 1 2002, 10. 2 For related data (comparing, for instance, health parameters in Costa Rica or the United States), see, Daniels, 2002, 11–12.

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Health may be impaired by the lack of resources, by means of certain omissions, but surely by actions as well. The European Court of Human Rights has embraced this thesis in the case D. v. The United Kingdom, decided in 1996.3 D, a citizen of St. Kitts, arrived at London airport as a visitor in 1993. He was found to be in possession of cocaine, and, after being arrested, he was prosecuted and sentenced to six years’ imprisonment. While serving his prison term he was diagnosed HIV-positive. On 20 January 1996, the British immigration authorities gave directions in order for D to be removed to his country of residence. D tried, unsuccessfully, to remain in Great Britain in order to continue his medical treatment, a therapy which was absolutely unavailable in St. Kitts. As a result, he argued, the authorities’ decision would imperil his life and condemn him to spend his remaining days in pain and suffering, therefore violating Articles 2 (“Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law”), 3 (“No one shall be subjected to torture or to inhuman or degrading treatment or punishment”), and 8 of the European Convention on Human Rights. The Court contends that, although it is true that D’s future conditions in St. Kitts would stem from factors beyond the British government’s control, his removal would amount to inhuman treatment in violation of Article 3 of the Convention. The Court’s rationale entails that the right to health care is nothing but an aspect of our right to life or our right to physical integrity: the right to health care would be a species of the genus “right to life and not to be tortured.” If so understood, a right to health care imposes a general duty which hinges on everyone to preserve everyone’s integrity and well-being. That duty would have a negative dimension, but also a positive one: the “duty to rescue” those who might suffer because of our indifference to his or her well-being. That is the duty which was being violated by the British immigration authorities in the case of the citizen from St. Kitts.4 2. A Right to Health Care: The Libertarian Objection There are various reasons why we can resist the conclusion embraced by the European Court of Human Rights. The main one has to do with the objections raised against the idea of “positive or welfare rights.” As is well known, there are sharp differences between negative and positive duties, differences that hinder our claiming that welfare rights are rights in the same sense as liberty 3

Case numbered 146/1996/767/964. Or the Taliban while in power in Afghanistan because of their restrictive measures towards women who were not eligible for health care in hospitals (Toebes, 2001, 180). 4

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rights.5 The insistence upon this fact has been one of the major tenets of the socalled libertarian position: (1) It is stated, in the first place, that a general duty to aid blurs the frontier between moral actions and supererogatory actions, a distinction which seems incorporated in the basic structure of our morality.6 (2) Negative duties are perfect because the holder of the right can compel anyone to fulfil his or her duty, as opposed to positive duties which are imperfect because not everyone might be in the position to comply.7 (3) Positive duties are “optional” in the sense that if someone refrains from acting in order to avoid some other’s harm, anyone else might cover his retreat. (4) As a result of breaking a negative duty, someone is harmed. As a result of breaking a positive duty, someone does not receive a benefit, which is something strikingly different. (5) The difference between actions and omissions is morally relevant. Abstentions do not cause effects as actions do. Some years ago, in a very well-known essay, Ernesto Garzón Valdés tried to surmount all those difficulties standing in the way of the cause of welfare rights:8 (1’) We can defend the existence of positive duties and still assume the basic structure of morality if we restrict the range of our due actions to those that do not require from us more than a trivial sacrifice. The sacrifice is not unbearable if there is enough time to recover between actions. (2’ and 3’) It is certainly true that the way in which we fulfil our negative duties is different from the way in which we comply with the duty to aid. But that, says Garzón, just points to the fact that, for reasons having to do with efficiency and fairness, we have to organize and coordinate our efforts. (4’) It is untrue that we simply bring a benefit when we help someone from a certain danger. If I save a drowning child I don’t add any benefit to his status quo, but simply help him to keep it. If I don’t aid him, being able to do so with no risk to any of my interests or goods, I thwart his recovery and, therefore, I also harm him. (5’) In certain contexts, omissions are as causally efficacious as actions. 5 6 7 8

Baumrin, 2002, 80, Epstein, 1999, 7. Fishkin, 1982, 153. Epstein, 1999, 40. 1986, 20–28.

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3. Positive and Negative Rights I will not discuss in detail all the objections that Garzón’s responses to the libertarian argument generated. However, there are three facts that I would like to concentrate on. Both were reminded by Francisco Laporta in his commentary to Garzón’s paper. First of all, the causal effectiveness of omissions which allow our attribution of responsibility is clear only when we can restrict to a minimum the catalogue of counterfactual possibilities which permit different alternatives as being the cause. It so happens only in contexts in which the victim and the eventual rescuer stand in close proximity, or when the rescuer is in charge of taking care of the victim.9 This, typically, is not the health care context. There are multiple factors and a multiplicity of omissions that come together to produce the undesirable result, and no one is clearly responsible. This is the reason why the positive duties demand a peculiar need to coordinate our actions. This is particularly so in the case of health care where, on the other hand, the sacrifice which is owed to the patient is often not trivial. The result is that, once the coordination has been arranged, positive duties become special rather than general in character.10 Linked to both facts is the claim that, in the case of welfare rights, there is a circumstance which makes them less urgent, less absolute, more dispensable, not even “rights” in the proper sense of the concept: the fact is the scarcity of the resources needed to make them more than mere rights on paper. Rights to health care, housing, education, etc., seem to depend, critically, on resources. Again, it is stated, “ought implies can,” so it is illusory to talk about positive rights (especially as finance-demanding as health care) in circumstances of deep scarcity. But the truth of the matter is that every right, negative or positive, has costs, so, the argument goes, scarcity does not only affect welfare rights. Freedom of contract, or freedom of expression, for instance, are true rights when the state allocates enough money to protect them if violated.11 Does that mean that, at the end of the day, all rights are ultimately positive? In a trivial sense, yes: to the extent that all rights, in order to “exist,” require their effective safeguarding, all of them are “positive.” However, the distinction between negative and positive duties is not useless. Some rights demand, as a necessary (but not sufficient) condition, every other’s abstention (plus the allocation of resources for their enforcement). These “immunity rights” are partly 9

Laporta, 1986, 57–58. Ibid., 61–62. 11 Hessler/Buchanan, 2002, 86–87; Holmes/Sunstein, 1999, 15; Smith, 2002, 311 n. 26 Abramovich/Courtis, 2002, 22–24 and Ruiz Miguel, 1994, 659–660. To mention just one example: in 1992 the United States spent $ 73 billion (73.000.000.000) on law enforcement (police and the penitentiary system), a figure that amounts to the GNP of more than half of the countries of the world. 10

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negative, and, in a moral sense, we attach them to everyone despite the fact that the legal system or the budget does not harbour them. Others are positive all along the line. The moral is that we should not mingle the right’s content with its cost. Anyway, the floor is still open to discuss whether there are interests or goods worth protecting through the instrument of rights, that is, spending money.12 Is health care among them? We should be reminded that, in our case, as Hessler and Buchanan have stated: “To assert the existence of a human right to health care is to make a very strong moral claim: that everyone in the world, regardless of nationality, culture, country of citizenship, or any other distinguishing feature, can claim a moral entitlement to certain medical services and public-health measures.”13 If you notice their statement, the idea is to enjoy a certain level of health care. This marks another relevant difference with negative rights. It seems that when we deal with positive rights, the fact of scarcity pervades in a very special manner how we might protect them. We usually don’t consider that the most we can do, in terms of freedom of expression, for example, is to ensure a certain level of expression, and that, once we have met that minimum, some will not have the opportunity to express themselves as much as others. And this is precisely what we affirm in the case of a positive right such as the right to health care. At first glance, freedom of expression, as a genuine right, can only be normatively limited (as any other right, it can conflict with others). Health care, on the other hand, faces the crude fact of a potentially unlimited demand for services and goods, coupled with scarce resources. Such combination necessarily implies sacrifices and losses to some of the needy. The question is: who ought we sacrifice? and: by which criteria? 4. Quality Adjusted Life Years If there is an end to which health care is oriented, it is the postponement of death. It seems, therefore, that those facing a more impending death ought to be given priority in treatment. This is the logical result of applying the criterion that, according to many, should reign in the sphere of health care: need. But there is more in health care than avoiding death. Death is, of course, inevitable, but sometimes it is also preferable. We tend to think that it is not worth spending resources on hopeless patients or people in persistent vegetative states, for instance, if that entails that others with a better prognosis will be left to their fate. Suppose we can measure the state of need (from 0 – death – to a state of complete health – 1). Assume now that there are patients with a need of 12 13

Gewirth, 2001, 323–324, 327, 330. Hessler/Buchanan, 2002, 88.

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0.1 who might reach 0.2 if treated. On the other hand, we have some other patients who, not being as needy as those in the first group, might recover from 0.2 to 1. Imagine that we can help them and spend less money than if we come to the rescue of the neediest. Shouldn’t we sacrifice the neediest if it is not possible to treat both groups? Not doing so, as many have argued, would amount to a squandering of resources.14 This sort of consideration is based on the importance of cost-effectiveness analysis when deciding how to allocate scarce resources for different alternatives. One of the most popular instruments for measuring the profitability of certain therapies against others are QALYs (Quality Adjusted Life Years). This criterion was first proposed by the British economist Alan Williams, who, focusing on the alternatives for people who suffered from kidney malfunctioning, showed how it was much more convenient to provide transplants than hemodialysis.15 QALYs allow us to combine the two main aims of health care: longer lifetime and quality of life. A Quality Adjusted Life Year is the result of multiplying the level of health gained by the number of years that are obtained.16 Every QALY has a cost, and so the comparison between different courses of action is feasible. A sophisticated heart transplant to a newborn is expensive, but it gives the baby a long life with an almost maximum quality of life. Treating a patient suffering from a cancer with a poor prognosis might be cheaper in monetary terms, but its QALYs might be much more expensive.17 QALYs, however, have their shortcomings. It should be evident that QALYs discriminate against old people (who have less lifetime ahead) and all those whose health status is precarious in the first place (because they have less opportunities to reach high levels of life quality).18 If our goal is QALY maximi14 See Brock, 2002, 371; Ubel, 2001, 34–35; Epstein, 1999, 116–119, and McKie et al., 1998, 89. 15 Häyry, 2002, 55. 16 Another metric that has been proposed, which pertains to the same family of cost-effectiveness analysis, is DALY (Disability Adjusted Life Year). Whereas QALYs measure the positive aspect of treatment, DALYs focus on the years or quality lost for non-treatment. Murray and Acharya, 1997, 705 n. 3. 17 This shows the difference between cost-benefit analysis (CBA) and cost-effectiveness analysis (CEA); see Dolan/Olsen, 2002, 98–99 and Ubel, 2001, 8. 18 Ubel, 2001, 76–77, 178 and Harris, 1998, 296. As regards the discrimination against people with disabilities, Ubel points out that a possible solution consists in placing full health on an equal footing with the disability condition. In that case, either one will gain an equal amount of QALYs if, for example, both need minor surgery. There are two difficulties with such an approach. First of all, the assumption that they both share the same quality of life. Secondly, when levelling up the health status of the paraplegic, we are forced to admit that his eventual healing does not improve his condition; Ubel, 2001, 162. In the case of elderly men, several authors have argued that fairness favors giving priority to the youngest. The argument is that

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zation, we might prefer to extend someone’s life for seven years at a cost of A 6,000 rather than extending the life of seven individuals for one year if the cost is A 7,000; or to pass over one hundred people with great need that could be treated to reach full health in order to attend one million that just need a sophisticated cream for a minor skin problem.19 In both cases it seems that there should be more than QALY maximization, which, you may have noticed, is a clear expression of the utilitarian moral framework.20 What is this “something else” which is needed when trying to allocate resources for health care? The answer is, usually, fairness.

Alternative A

Alternative B

Disability Level 1. No problems walking. 2. Can move about without difficulty anywhere, but has difficulty walking more than 1 km.





3. Can move about without difficulty at home, but has difficulty up and down stairs, and outdoors.



4. Moves about with difficulty at home. Needs assistance up and down stairs, and outdoors.



5. Can sit. Needs assistance to move about both at home and outdoors.



6. To some degree bedridden. Can sit in a chair part of the day if helped up by others.



7. Completely bedridden.

In the study conducted by Norwegian economist Erik Nord, a group of people were asked to decide whom to treat first: a group of one hundred patients (A) who might improve from disability level 7 to disability level 5, or another group (B) who might rise from 5 to 3. Either alternative yields the same number of QALYs. The polled were asked to indicate how many people should be held in group B for not treating group A, and in the majority of the cases they found it almost impossible to sacrifice the ones who suffered a greater disability.21 Similar surveys conducted by Peter Ubel have shown identical results.22 they have had “less life” and should be given an opportunity to reach the extension of life already enjoyed by the older person, especially if life has a diminishing marginal utility; Kamm, 1993, 236–238 and Kappel/Sandøe, 1992, 314–315. 19 Crisp, 2002, 138–139 and Brock, 2002, 357. 20 McKie/Richardson/Singer/Kuhse, 1998, 61.

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5. Fairness, Equality, and the Right to Health Care I don’t know how many of those who were asked read Rawls’s A Theory of Justice, but it seems that when answering they had in mind something close to the difference principle, a maximin rule for the allocation of resources. As you all know, the difference principle was proposed by Rawls in order to surmount two of the difficulties that utilitarianism traditionally faces: the so-called problem of interpersonal comparisons of well-being, and the complexity associated with the fixation of a cardinal measurement of welfare. The difference principle simplifies things by establishing an “objective” basis from which to compare the situation of individuals: the index of primary goods, “things which it is supposed a rational man wants whatever else he wants. Regardless of what an individual’s rational plans are in detail, it is assumed that there are various things which he would prefer more rather than less. With more of these goods men can generally be assured of greater success in carrying out their intentions and in advancing their ends, whatever these ends may be.”23 In A Theory of Justice Rawls himself included neither health nor health care among the index of primary goods, and this is something which casts a shadow of doubt over the comprehensiveness, reasonableness, and appeal of the index. But even if included, he would have had to take into account that medical needs are not uniform across individuals, and that, therefore, the index should be sensitive to these differences.24 Although Rawls did not consider health care in his original presentation of the theory, he did amend this seeming flaw in Political Liberalism. This notwithstanding, the amendment leaves us unsatisfied. The way in which he has accommodated the health care issue in his agenda is the following: if, as Rawls has persistently stated, the aim of a theory of justice is to “characterize the fair terms of cooperation,” and these terms are “expressed by principles that specify basic rights and duties within its main institutions and regulate the arrangements of background justice over time, so that the benefits produced by everyone’s efforts are fairly distributed,”25 health care appears on the scene as the remedy owed to those who, as a result of illness and accident, fail to meet the condition of being fully cooperating members of society over a complete life.26 21 As Ubel states: “Small improvements in severely ill patients were seen as being more important than larger improvements . . . for less severely disabled patients;” 2001, 71. 22 Ibid., 72. 23 1971, 92, 1993, 181. 24 Rawls has acknowledged the pertinence of this objection raised by Kenneth Arrow and Amartya Sen; see 1993, 183. 25 Rawls, 1993, 16. 26 Ibid., 184.

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Rawls, as is well known, has considered that what we owe to others in terms of health care is a problem having to do with the “extension of justice,”27 an issue that might be undertaken “at the legislative stage when the prevalence and kinds of these misfortunes are known and the costs of treating them can be ascertained and balanced along with total government expenditure.”28 But how should it be done? Are there any moral restrictions on how the legislators might organize health care? A more detailed and ambitious account of how to deal with the health care due under Rawls’s conception of justice is the enterprise that has been tackled by Norman Daniels. I will briefly discuss his proposal and also Dworkin’s, which has clear echoes of some of Rawls’s tenets. 5.1. Health Care and Equality of Opportunities Daniels’s main idea fits nicely with some of our intuitions when we think about health care and the relevance of his universal provision: health is one of the most decisive conditions for the development of each individual’s life plan or conception of the good. Every career or project pursued by citizens presupposes the concurrence of a “normal functioning of the human being species.” If people have a fundamental interest in preserving the opportunity to change their life plan throughout a lifetime, everybody will have an interest in providing health care to everyone. We have the moral duty to overcome the differences in talents and capacities which are due only to the natural lottery that is manifested in health impairments of various sorts.29 Under Daniels’s framework, a right to health care is a specification of the right to equality of opportunities,30 and the level of health care that ought to be provided corresponds to the restoring (or reaching) of the “normal” functioning of human beings. And that does not include the improvement of conditions that may affect the range of opportunities available to the individual: for example, his or her height. In Daniels’s opinion, if, for example, there is clear evidence of a shortcoming of the growth hormone in somebody’s organism, its inclusion in the amount of goods and health services to which everyone is entitled is justified. The striking aspect of Daniels’s claim is that it would be justified only in that case.31 There are multiple aspects of our physiology which are hardly uniform along the species. They vary across individuals due to several factors, which, in any case, are also the outcome of some natural lottery. It seems that Daniels’s 27 28 29 30 31

Id., 244–245. Id., 184. A similar point is made by Smith; see 2002, 308. Daniels, 1985, 27–28, 34, 39. Daniels, 2002, 6–8; 1998, 319–320. Daniels, 2002, 10.

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emphasis on an objective, biological, or functional understanding of health and illness obscures any true commitment to equalizing opportunities. If, in some case, a short height does not have anything to do with any hormonal deficit, and being taller enhances our range of opportunities, the system should include such amelioration among the services it provides to individuals. If we don’t consider that being tall is important enough, neither one should get the treatment. 5.2. Health Care and Equality of Resources I anticipate from the start that, in my understanding of Dworkin’s thesis, if there is a moral right to health care that right means everybody’s right to be a beneficiary of a certain distributive scheme of health care resources. This framework is nothing but the expression of his general conception of equality: equality as equality of resources. For Dworkin, all individual rights are the specification of a general principle that requires governments to treat everyone with equal concern and respect. The best way to understand such a requirement implies that, depending on what the economic structure allows, the political power should initially give everyone an equal amount of resources to be used at one’s discretion in order to pursue his or her life’s plan. In a Rawlsian vein, Dworkin envisions a scenario in which nobody envies what others have. For such a society to be accomplished, we have to presuppose individuals with characteristic tastes and preferences, dreams and expectations, which are not part of their circumstances, but of their personality. We also need some device similar to an original position: in Dworkin’s case a hypothetical auction in which everyone bids for an amount of physical resources that will enable them to satisfy their desires. If the auction is repeated until everyone is satisfied with their lot, the ideal of equality of resources complies with the so-called envy test that I mentioned before. At the end of the day, individuals would have been treated equally, but they will not be equally satiated because the satisfaction that their life’s plans bring are not the same. And, as opposed to the advocates of “welfare egalitarianism,” we should not try to level them because doing so would amount to subsidizing the eccentric or expensive tastes of some. Individuals ought to be responsible for their expenditures when they do not stem from factors beyond their control.32 But what happens if the situation is precisely that? Shouldn’t we try to devote resources to those who need more because of some disability? Dworkin’s answer is affirmative. Our tax system should be sensitive to the needs of those 32 Dworkin, 2000, 66–71, 81. This obstacle – the subsidy of expensive tastes – which hinges upon welfare egalitarianism, was noticed by Thomas Scanlon, 1975, 659.

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who face contingencies due to “brute luck.” Once again, in a very Rawlsian fashion, we are to suppose that during the initial auction of resources, the bidders might buy insurance for their future contingencies (which they, of course, ignore), knowing that all those misfortunes are equally distributed across the population. Some will buy more insurance, others less, and this, again, will reflect their personality. As before, everyone will be responsible for their either prudent or adventurous life. Their later differences will mirror their diverse conceptions of the value of different aspects of their well-being.33 This is the source of Dworkin’s model of a just health care system: if (1) there is an initial distribution of an equal amount of resources; (2) medical information (the consequences of various illnesses, the preventive measures for avoiding them, the value and effectiveness of different treatments) is symmetrically distributed between health care professionals and customers; (3) nobody (including insurance companies) knows more than anyone else about anyone’s probability of developing a particular illness; and (4) there is a free market of health care services, and therefore health care is allocated according to the willingness and ability to pay, two crucial conclusions result. Firstly, the amount of resources assigned to health care would be the just amount (and this expenditure would simply be the sum of individual expenditures). Secondly, the resultant distribution of health care would be the just distribution.34 Dworkin is mostly interested in pointing out that any society which launches out from a situation similar to the hypothetical auction will end up having a system of health care fairly similar to those currently prevailing in Europe. It is Dworkin’s contention that individuals would have joined their financial efforts in order to provide a universal coverage against basic contingencies for all of them, and also that some of them will assign, outside the system, more of their resources to reach a wider coverage. As with any other guesswork, Dworkin’s is subject to empirical demonstration. And finding such evidence is an exceedingly difficult task because his original position, as any other original position, be it an auction or any other political fantasy, is an heuristic device. Be that as it may, the criticism that I would like to tackle in the rest of this paper is the one which has a normative dimension. Even if Dworkin were correct in his conjecture, such a public system of health care, that way of coordinating our efforts in order to fulfil some positive duties regarding health care, is unjust. We should leave responsible individuals to buy their insurance and fully face their forecasts and lack of good luck. No one owes anything to others in terms of health care, and so there 33

Dworkin, 2000, 73–78. Dworkin, 1993, 888–889. Dworkin was not completely original in his approach to a just health care system. We can find a very similar model in Scanlon’s article (see 1975, 662–663). 34

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should not be a collective system of health care financed through taxation. Both theses give shape to the libertarian creed in the field of health care. 6. Taking Libertarianism Seriously What is so special about health care that it should not be provided by a free market?35 The reasons that are usually put forward are threefold: (1) health care is basic and its supply is complex; (2) markets are incapable of making interpersonal comparisons of utility; and (3) health care is a public good.36 (1) On mentioning the distribution of health care and the alleged universal right to health care, Epstein asks, “Why is this principle – allocation based on need and not on the consumer’s ability to pay – appropriate for health care when it has been rejected for vacation homes and fast cars?”37 An intuitive answer is that vacation homes and fast cars are not basic. Health care is special, affirms Peter Ubel, because “life is sacred, and health care is one of the few goods and services that can prevent premature death . . . Health care is also special because health is special. Good health is necessary before people can enjoy the most basic parts of life.”38 This notwithstanding, the libertarian retort is quite easy: food and shelter are basic too, and their allocation follows the criterion of the ability to pay. Egalitarians, for their part, might admit that this is so, but they could insist that it should not be so, that there is also a right to food and shelter, regardless of its actual enforcement, as well as a right to health care which, fortunately enough, is more properly and widely recognized. Alternatively, they could point to relevant differences in food or shelter and health care: the latter, as opposed to the former, is not constantly needed. The need appears occasionally, as our need for protection and security which justifies a collectively financed police or fire brigades.39 The problem with this answer is that it is not true that the public system of health care is displayed just for those who are eventually and desperately needy. Public systems of health care cover (and are requested to cover) preventive health care, minor surgery, and orthopaedic and many other therapies which are much more than “basic” or inconstant. We treat chronic illnesses, and people with persistent disabilities.

35

Epstein, 1999, 2. Ibid., 30. 37 Id., 112. 38 2001, 33–34. In a similar vein, Christine Korsgaard has stated that we necessarily value health because we have a physical life; see, 2003, 82. 39 Smith, 2002, 306. 36

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Occasionality is not what makes the difference between health care and other basic goods; its high cost might. Providing a minimum amount of calories or some place in which to lodge seems cheaper than treating fatal diseases. As a matter of fact, in welfare states people rarely die from starvation or lack of housing. As a last resort, either the social services of the state or charitable organizations come to the fulfilment of those needs.40 However, this is precisely where Epstein’s complaint lies: if we feel that we have a duty towards the people who face extreme health care needs, simply let charity do its job. In the third place, it is frequently stated that, as opposed to food, shelter, or other basic goods, health care is special because health services are complex goods. The literature is abundant in examples of the many failures that a market of health care exhibits. I will just point out one of them: the existence of information asymmetries. As customers of food, or clothing, our decisions are relatively easy to make in view of what is offered in the market. What we need in terms of health care is, on the contrary, a judgment which requires the command of difficult knowledge not symmetrically distributed between customers and providers. Far from being perfect, markets of health care would run in a very unfair and inefficient fashion if special restrictions to its operation are not imposed. When, for instance, health insurance companies are targeted, it is claimed that they should publicize their rationing criteria. To the extent that such is an operational asset of the company which brings a comparative advantage, the duty to make it public is a restriction which we will not find in other economic domains. But more important than this, and other restrictions which are advanced under the same assessment of health care services as “special,”41 is the impossibility which hinges upon the insurer to collect the information necessary for setting rates; particularly, genetic data regarding the purchaser’s risks. This is how we can avoid the practice of “cherry picking” customers by the insurance companies and therefore ensure that, in those countries where public health care is insufficient, everybody has the chance of being insured at least by private means.42 What do libertarians have to say to those argumentative strategies? As regards the imperfect nature of health care markets, Richard Epstein has reminded us that even when the government is in charge of providing health care, there still operates a market with the same asymmetries of information. Notwithstanding the existence of universal health care coverage, physicians must be educated and hired, technology acquired, etc. Regulation does not remove the alleged shortcomings of health care markets whatsoever.43 40

Ibid., 306–307. This is what Norman Daniels and James Sabin have proposed as regards the health insurance market; see 1997, 306, 308–313, 323–324, 348–349. 42 “Cherry picking” consists in the selection of the best risks only. 41

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On the other hand, risk information concealment transfers the asymmetry from companies to customers who are now protected and encouraged to cheat on their providers. If we truly, and not only rhetorically, favor perfect markets, the remedy is to force the disclosure of the risk profiles, whether genetic or coming from any other source. Otherwise, making insurance companies incapable of taking into account the preexisting conditions of the subject of insurance would amount to allowing the owner of a ship sunk at sea on 1 January 2004 to purchase insurance on 1 February 2004. The insurance game presupposes uncertainty on both parties. When the loss is certain we have moved from the insurance schema to a loaning scenario. If insurers are prevented from taking into account what the true damages and risks of the purchaser are, the outcome is the encouragement of risky activities on the part of the insured because everybody is subsidized and will be covered.44 From an egalitarian perspective, of course, all this reminding of the basic rules and mechanisms needed for the market to be genuinely free and efficient, has the effect of making us even more aware of its harshness. It also has the consequence for the egalitarian to insist on the state’s complementary role in providing a public health care system if we consider that every individual ought to have basic coverage against certain health contingencies regardless of his or her ability to pay. (2) The idea behind the appeal to the fact that markets are incapable of making interpersonal comparisons of utility is that, sometimes, those who cannot afford a health care service will, nevertheless, obtain more utility if they have it. This is why need, and not economic capacity, should guide the allocation of health care resources. Therefore, in order to maximize utility, we ought to transfer revenues from some to others through the instrument of taxation. Now, for a libertarian the further question is: what is so special about the state, that, by coercive means, it is mysteriously capable of allocating the resources where more utility is gained? The State is nothing but public servants who don’t have true incentives for attending the needy; the State is nothing but a bureaucratic apparatus that ultimately inflates the true costs of services by imposing administrative expenses in order to finance their own lumbering machinery. The State is in no better position to do the type of interpersonal comparisons of utility that a free market is prevented from doing, so: why not let the people aid others voluntarily? Why not simply rely on the charitable activity?45 Charity reflects the genuine capability of the wealthiest to verify that their well-being differs from that of others in need “and to resolve their internal conflicts against some narrow conception of their own economic self-interest. . . . When 43 44 45

Epstein, 1999, 46. Ibid., 122–130. Id., 37.

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persons make voluntary gifts to others from their own resources, they compare the value of what they transfer to the value of what they retain. When the State coerces the transaction, it must decide, without knowing quite how, that differences in utility justify the forced transfer of wealth.”46 So, with both counterarguments it seems that Epstein is putting forward the following dilemma: if what we are deeming by health care is something close to an emergency situation, charity might take care of it more fairly and efficiently (as a matter of fact, he would point out, this is what happens with other basic goods); if what we mean by health care is something wider, a public-like system of health care forces individuals to make unjust transfers of their revenues. (3) The last resort in the egalitarian’s hands is to point out that relying exclusively on charitable organizations is unwise for a reason which has to do with the “free-riding” problem. Lets assume that, as Epstein contends, some wealthy individuals are sensitive enough to be moved by others’ health care needs. How can anyone be sure enough that the rest will do his or her part? Such uncertainty will foster everyone’s unwillingness to give, so we will end up not having the good which all deem desirable in the first place. We face the same collective dilemma as when public goods are at stake. Epstein’s answer is twofold. Firstly, the free-rider problem does not apply to the charity domain, for a very simple reason: the true giver is, by definition, deontologically altruistic, neither strategic nor consequentialist. As a result, he or she lacks the slightest spark on others’ absence of commitment.47 Secondly, health care is, technically, not a public good. As opposed to genuine public goods it lacks the feature of non-excludability. We are perfectly capable of excluding those who do not contribute to its production from its beneficial effects. In Epstein’s terms: “Corralling the reluctant parties can be done, moreover, without enormous complication by allowing charitable deduction for charitable goods and services, a mechanism that has long been in place under the tax laws. The gist of the deduction is that the government provides a matching grant, paid in effect from all other citizens, to those individuals who are prepared to spend their own resources in charitable endeavors.”48 What might we say to this? Above all, it is striking, to say the least, that Epstein takes no heed of the empirical evidence shown by his own country of birth, where, in 1999, more than 42 million people (15 percent of the entire population) were uninsured.49 It seems, therefore, that, at least in the U. S., we 46 47 48 49

Id., 36, 48–49. Id., 38–39. Id., p. 39. Smith, 2002, 309.

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don’t find a critical mass of genuinely altruistic individuals capable of sustaining a minimum health care system. So voluntary exchange does not suffice, neither in the U. S. nor anywhere else. As everybody knows, charitable organizations weren’t capable to procure basic health care to the population in the nineteenth century, despite Epstein’s kind portrait of them.50 That might not annoy Epstein because, at the end of the day, he does not care if people are left to their own fate. “A legal regime of imperfect charitable obligations,” says Epstein, “is easy to catalogue: it does not require any public statement of who must contribute, how much must be contributed, or what conditions, if any, should be attached to any gifts. The donors decide those issues for themselves, without fear of legal sanction. Transforming social rights into legal ones now puts all issues of definition, implementation and enforcement on the front burner.”51 But if our worry is to assure that everyone will receive a certain level of medical attention, regardless of his or her economic standing, we need to finetune a machinery that requires stating the basic health care package to which everybody is entitled. This sort of coordination of efforts is, under Garzón’s approach, the logical consequence of embracing the ideal of positive duties on an equal footing with negative obligations. Patricia Smith has insisted on the same idea when defending the right to health care. In her opinion, when Epstein objects to the universalization of the alleged right he’s way off the mark because what is at stake is not a positive duty to be waived against each other. Rather, what we are defending is that a basic need be seen as the source of a collective responsibility of all those able to contribute to a common pool of resources to satisfy a minimum level of health care for all, which is not the same kind of claim.52 Far from displaying extenuating efforts to defend a right to health care, all we are required to do, says Smith, is deny that there is any fundamental right whatsoever to be exempt from such contributions. Those who, like Epstein, aim to defend such libertarian freedom from taxation have to bring forward a reason to exclude from the democratic debate, as a matter of justice, the building of a system of public health care financed by all according to their economic capability. But I’m afraid that this is not enough fuel for the cause of positive rights in general, and for health care in particular. It is also on us that the burden of proof hinges to exclude the state’s abstention (along the lines suggested by Epstein’s libertarianism) from democratic deliberation. If there is a moral right to health care, it also means that at the legislative stage there are certain decisions that, in the name of justice, cannot be made. 50 51 52

Epstein, 1999, 36. Ibid., 43 (his italics). Smith, 2002, 305.

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7. Some Tentative Conclusions and two Caveats A right to health care imposes the duty to configure a health care system under a certain distributive schema ruled by the criterion that there are certain thresholds of medical need which justify our prioritizing those who are placed above the threshold, regardless of how many others, placed below, will not be treated. We might consider that above the threshold there are illnesses which cause great suffering or impairment for a significant period of time, or lack of mobility, for instance, and that that justifies not counting “numbers.”53 As I have repeatedly said, a health care system built on these principles requires coordination, organization, and anticipation in the allocation of resources. Otherwise, the very idea of a health care budget is nonsense. But this means that, in the realm of health care, we are forced to decide not only who, among the patients, will get the resources but also how much of the goods we will be producing within the limits set by the scarcity of resources. This second decision is what Bobbit and Calabresi coined “first order tragic choices,”54 and I think it illustrates that the management and enforcement of the right to health care of individuals is necessarily consequentialist. As a result, the presence of first-order tragic choices might have tragic consequences for a certain understanding of what a right to health care should mean. I am thinking of those decisions not to rescue when there are available resources. These decisions are backed by Dworkin’s principles of a just health care system, and by any other design which is not ruled by assistance “in the here and now,” regardless of what others in the future will be entitled to demand. This means that, sometimes, when managing our resources we will be sacrificing patients either for the sake of statistical ones or out of respect for the individuals’ own insurance decisions made under Dworkin’s schema. Let me give you an example. In September 1990 Jaymee Bowen, then aged ten, was diagnosed that she was suffering from a non-Hodgkins lymphoma with common acute lymphoblastic leukaemia. After being treated with chemotherapy, in December 1993 Jaymee developed acute myeloid leukaemia. She underwent a course of total body irradiation, a treatment which no one can undergo more than once. In 1994 she underwent a bone marrow transplant which was not successful. Dr. Broadbent, the doctor that had treated Jaymee since the beginning of her illness, judged that she had a very short period of some six to eight weeks to live, and that no further treatment could usefully be administered. After consulting other doctors, Jaymee’s father sought a second transplant for his daughter, but the British health authority denied the release of

53 54

Crisp, 2002, 139–140. See 1978, 19.

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funds necessary for the requested treatment (£ 75,000) because the prospects of Jaymee’s recovery were no greater than 20 percent. The Cambridge Health Authority decision was first reviewed by Mr. McIntyre, who quashed the health authority’s order. Among other reasons, the judge stated that: “where the question is whether the life of a 10-year-old child might be saved by however slim a chance, the responsible authority . . . must do more than toll the bell of tight resources . . . They must explain the priorities that have led them to decline to fund the treatment.” For its part, the Court of Appeal which granted the appeal affirmed: “I have no doubt that in a perfect world any treatment which a patient, or a patient’s family, sought would be provided if doctors were willing to give it, no matter how much it cost . . . It would however . . . be shutting one’s eyes to the real world if the court were to proceed on the basis that we do live in such a world . . . Difficult and agonising judgments have to be made as to how a limited budget is best allocated to the maximum advantage of the maximum number of patients . . . Mr. McIntyre went so far as to say that if the authority has money in the bank which it has not spent, then they would be acting in plain breach of their statutory duty if they did not procure this treatment. I am bound to say that I regard that submission as manifestly incorrect. Unless the health authority had sufficient money to purchase everything which in the interests of patients it would wish to do, then that situation would never ever be reached. I venture to say that no real evidence is needed to satisfy the court that no health authority is in that position. I furthermore think . . . that it would be totally unrealistic to require the authority to come to the court with its accounts and seek to demonstrate that if this treatment were provided for B then there would be a patient, C, who would have to go without treatment. No major authority could run its financial affairs in a way which would permit such a demonstration.”55 My second warning has to do with the universal nature of moral rights. If the right to health care belongs to that genus, it implies that, as I mentioned before, every human being, regardless of nationality or country of citizenship, can claim a moral entitlement to certain medical services and public-health measures. This requires, of course, a step further in the building of the distributive schema of health care services to incorporate every human being’s efforts and needs, a scenario way beyond our current reality. But it would require, as well, redefining the thresholds of need above which numbers should not count, if a universal right to health care means anything sensible.

55

R v. Cambridge Health Authority, ex p B (Reported at [1997] 1 WLR 68).

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References Abramovich, Víctor/Courtis, Christian (2002), Los derechos sociales como derechos exigibles, Madrid: Trotta. Baumrin, Bernard H. (2002), Why There Is No Right to Health Care, in Medicine and Social Justice. Essays on the Distribution of Health Care, Rosamond Rhodes, Margaret P. Battin, Anita Silvers (eds.), Oxford/New York: Oxford University Press, pp. 78–83. Brock, Dan W. (2002), Priority to the Worse Off in Health-Care Resource Prioritization, in Medicine and Social Justice. Essays on the Distribution of Health Care, Rosamond Rhodes, Margaret P. Battin, Anita Silvers (eds.), Oxford/New York: Oxford University Press, pp. 362–372. Calabresi, Guido/Bobbitt, Philip (1978), Tragic choices, New York: W. W. Norton & Company. Crisp, Roger (2002), Treatment According to Need: Justice and the British National Health Service, in Medicine and Social Justice. Essays on the Distribution of Health Care, Rosamond Rhodes, Margaret P. Battin, Anita Silvers (eds.), Oxford/ New York: Oxford University Press, pp. 134–143. Daniels, Norman (1985), Just Health Care, Cambridge: Cambridge University Press. – (1998), Is there a right to health care and, if so, what does it encompass? in A Companion to Bioethics, Helga Kuhse/Peter Singer (eds.), Oxford: Blackwell, pp. 316–325. – (2002), Justice, Health, and Health Care, in Medicine and Social Justice. Essays on the Distribution of Health Care, Rosamond Rhodes/Margaret P. Battin/Anita Silvers (eds.), Oxford/New York: Oxford University Press, pp. 6–23. Daniels, Norman/Sabin, James (1997), Limits to Health Care: Fair Procedures, Democratic Deliberation, and the Legitimacy Problem for Insurers, Philosophy and Public Affairs, Vol. 26, nº 4, autumn, pp. 303–350. Dolan, Paul/Olsen, Jan Abel (2002), Distributing health care. Economic and ethical issues, Oxford: Oxford University Press. Dworkin, Ronald (1993), Justice in the Distribution of Health Care, McGill Law Journal, Vol. 38, nº 4, pp. 883–898. – (2000), Sovereign Virtue. The Theory and Practice of Equality, Cambridge (Mass.): Harvard University Press. Epstein, Richard A. (1999), Mortal Peril. Our Inalienable Right to Health Care? Cambridge (Mass.): Perseus Books. Fishkin, James (1982), The Limits of Obligation, New Haven (NJ): Princeton University Press. Garzón Valdés, Ernesto (1986), Los deberes positivos generales y su fundamentación, Doxa, 3, pp. 17–33. Gewirth, Alan (2001), Are All Rights Positive?, Philosophy and Public Affairs, Vol. 30, nº 3, summer, pp. 321–333.

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Harris, John (1998), Micro-allocation: deciding between patients, in A Companion to Bioethics, Helga Kuhse/Peter Singer (eds.), Oxford: Blackwell, pp. 293–305. Häyry, Matti (2002), Utilitarian Approaches to Health Care, in Medicine and Social Justice. Essays on the Distribution of Health Care, Rosamond Rhodes/Margaret P. Battin/Anita Silvers (eds.), Oxford/New York: Oxford University Press, pp. 53–64. Hessler, Kristen/Buchanan, Allen (2002), Specifying the Content of the Human Right to Health Care, in Medicine and Social Justice. Essays on the Distribution of Health Care, Rosamond Rhodes/Margaret P. Battin/Anita Silvers (eds.), Oxford/ New York: Oxford University Press, pp. 84–96. Holmes, Stephen/Sunstein, Cass R. (1999), The Cost of Rights. Why Liberty Depends on Taxes, New York/London: W. W. Norton & Company. Kamm, F. M. (1993), Morality, Mortality (Vol. I). Death and Whom to Save from It, New York/Oxford: Oxford University Press. Kappel, Klemens/Sandøe, Peter (1992), QALYs, Age, and Fairness, Bioethics, Vol. 6, nº 4, pp. 297–316. Korsgaard, Christine M. (2003), The Dependence of Value on Humanity, in Joseph Raz, The Practice of Value, Oxford: Clarendon Press, pp. 63–85. Laporta, Francisco (1986), Algunos problemas de los deberes positivos generales (Observaciones a un artículo de Ernesto Garzón Valdés), Doxa, 3, pp. 55–63. McKie, John/Richardson, Jeff/Singer, Peter/Kuhse, Helga (1998), The Allocation of Health Care Resources. An Ethical Evaluation of the ‘QALY’ Approach, Aldershot: Ashgate/Dartmouth. Murray, Christopher J. L./Acharya, Arnab K. (1997), Understanding DALYs, Journal of Health Economics, Vol. 16, pp. 703–730. O’Neill, Onora (2002), Autonomy and Trust in Bioethics, Cambridge: Cambridge University Press. Rawls, John (1971), A Theory of Justice, Cambridge (Mass.): Harvard University Press. Ruiz Miguel, Alfonso (1994), Derechos liberales y derechos sociales, Doxa, n. 15–16 (Vol. II), pp. 651–674. Scanlon, Thomas (1975), Preference and Urgency, The Journal of Philosophy, Vol. 72, nº 19, pp. 655–669. Smith, Patricia (2002), Justice, Health, and the Price of Poverty, in Medicine and Social Justice. Essays on the Distribution of Health Care, Rosamond Rhodes/Margaret P. Battin/Anita Silvers (eds.), Oxford/New York: Oxford University Press, pp. 301–312. Toebes, Brigit (2001), The Right to Health, in Economic, Social and Cultural Rights, Asbjørn Eide/Catarina Krause/Allan Rosas (eds.), The Hague: Kluwer, pp. 169– 190. Ubel, Peter (2001), Pricing Life. Why It’s Time for Health Care Rationing, Cambridge (Mass.)/London: The MIT Press.

II. Poverty, Fundamental Rights and Social Justice

Do the Poor have the Duty to Obey the Law?* Paula Gaido The question of the bindingness of the law is one that has been posed ever since the beginnings of philosophical thought with the purpose of elucidating the sense in which people can be said to use juridical norms to justify their actions. Throughout history it has been certain acts, aberrant from an ethical point of view, that have revived the theoretical interest in search of a satisfactory answer. Simply as examples, we may point to the cases of the Jews in Nazi Germany and of the black race under apartheid in South Africa, since the list could continue. At present, it is the situation of the extremely poor in supposedly democratic and abysmally fragmented societies as regards the distribution of wealth that refreshes the discussion (Rosenkrantz 2002). It might be fitting, initially, to make some distinctions with the purpose of circumscribing the problem, and differentiating this question from others that may be posed regarding the same factual suppositions. Let us take the case of the Jews under National Socialism in Germany. After the fall of the Third Reich, numerous jurists considered that the Nazi State had been possible largely due to the application of a positivist ideological conception that had taken to its ultimate consequences the idea that there always exists a moral obligation of obeying the law.1 Before this valuational position, and before those who continued maintaining that the law of Nazi domination had been law from a methodological perspective,2 Gustav Radbruch proposed his formula which stated * The original version of this work was presented under the title ‘Rights and Poverty. Some Legal Philosophical Remarks’. The version presented here basically respects the initial guidelines with the incorporation of certain additional specifications resulting from criticism received, from which I have benefitted in the attempt to adjust my proposal. 1 As Garzón Valdés points out (Garzón Valdés, 1971, 97). This form of positivism is commonly known, as from Bobbio, as ideological positivism (Bobbio, 1992, 37– 67). However, it is necessary to highlight that numerous authors have maintained that juridical positivism was not the dominant doctrine either in the years of the Republic of Weimar or in those of National Socialism. On this point Mertens can be consulted (Mertens, 2003). On the other hand, authors like Losano maintain that the criticism of the supposed positivism of the Nazis has served as a justification and theoretical extenuating circumstance for the many German jurists who, in fact, as from the Republic of Weimar, always combatted juridical positivism (the case of Carl Schmitt being emblematic), (Losano, 2002, 194–201). I owe the bibliographical references I cite to Giulio Itzcovich.

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that the extremely unjust could not be considered law.3 This clearly anti-positivist legal concept – which it is not pertinent to develop at this time4 – had a relevant practical significance in German jurisprudence after 1945.5 His idea does not lead to denying a duty of obedience to the law for moral reasons, but to conclude directly that any set of norms loses its lawfulness when it reaches an intolerable level of injustice; but only in these cases. The anti-positivist position that Radbruch outlines is extreme from a positivist point of view in the sense that, according to its conception, the law in certain circumstances loses its character; but minimal from an anti-positivist position insofar as this would only occur in cases in which the injustice becomes unbearable. While this theoretical approach, through its reference to extreme injustice institutionalised by law could serve to question the status of the law in South Africa under apartheid, it does not seem sufficiently illuminating at the moment in analysing the law of abysmally fragmented, though democratic and constitutional, societies. Could it be maintained that, in these societies, given the existence of extremely poor fringes of population, there is no law? Could it be claimed that, as from a theoretical proposal such as that of Radbruch, the normative systems of fragmented societies with constitutions that recognise basic rights lack juridical status? It would not seem so. In Latin American societies, extreme injustice is not institutionalised by law – that is to say, in its legal texts and constitutions at least – in the sense of expressly depriving fringes of the population of their rights. Therefore the problem dealt with here starts off from a negative response to these questions. This is so since the question posed here regarding the bindingness of the law presupposes the existence of such a normative system. In Latin America in the last decade two contradictory processes took place. On the one hand, numerous were the democratic countries that reformed their constitutions, including in them a robust list of rights. On the other hand, as regards the economy, a rapid increase in the concentration of wealth took place6 – as shown in the report which states that ‘the main group of magnates was able to amass a fortune that is equal to the income of 430 million poor 2

As was the case of Kelsen, cfr. Garzón Valdés, 1971, 98. The original formulation goes: ‘Extremes Unrecht ist kein Recht’, cfr. Alexy, 1999, 15–39. 4 Currently, Alexy takes up this idea principally in Begriff und Geltung des Rechts (1994). 5 After the fall of National Socialism, judges in West Germany were faced with the following question: Can something now be considered illegal that was previously considered legal? An analysis of the bases of some of these rulings can be seen in Alexy (1999). 6 As O’Donnell points out, Latin America ‘is a region which not only shares with others a generalized poverty, but one which also has the most unequal distribution of income’ (O’Donnell, 2002, 332). 3

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people over 63,000 years’ (Garzón Valdés, 2003, 24–32) – while simultaneously fringes of the population lived below the poverty line. You might object that it is not possible to speak of democracy in societies in which wealth can be said to exist – since otherwise fragmentation would not be possible – and in which wide fringes of the population are unable to satisfy their very basic necessities.7 But the complexity of the debate would exceed the boundaries of this work. Here the interest, as was pointed out, is to analyse the binding that these social fringes have to the law that seeks to regulate them. Or, in other words, in what sense can the law be said to give them reasons to justify their action. At the end of the 1990s a sharp institutional and economic crisis took place in Argentina, before which manifestations of political resistance arose which later became known as Movimiento Piquetero (the Picketer Movement).8 It is not necessary to enter into detail here on the course of this movement, but to point out the debates it has originated in the framework of legal theory. On the one hand, the argument centred on the extent to which the situation could be held to be described as a claim for rights, possibly in conflict with other rights, or whether it was simply breaking the law. On the other hand, it renewed the discussion on the obligation of obedience to the law, which is what concerns us here. Two Argentinean philosophers, Roberto Gargarella and Carlos Rosenkrantz, pondered the problem in an effort to offer theoretical tools with which to analyse the phenomenon, and more generally that of poverty. Both agreed in the existence of a situation that would justify the cancellation of duty of obedience to the law: the situation of alienation.9 Given that this could be considered at some point a situation of intolerable injustice, what distinguishes this posture from that of Radbruch, in principle, is that what is posed here is the cancellation from the duty of obedience to the law, not its loss of status. This is so because the arguments in question lead to the revelation of a fragmentation 7 Numerous authors currently debate this issue. O’Donnell distinguishes between democracy as a political regime and democracy as a systemic attribute. The first refers to a conception of democracy as a type of political regime, regardless of the features of the State and society. The second depends on the existence of a considerable degree of socio-economic equality or as a social and political order tending towards it (O’Donnell, 2002, 307). 8 As from approximately 1996 in Cutral Co., in the south of Argentina, numerous groups have begun to actualise their claims by cutting off highways and motorways, sometimes totally and for an extended period. As time passed, the different groups began organising themselves into groups with their own leadership, becoming effective in reaching immediate goals: a dialogue with the authorities and the assignment of social subsidies such as the Work Plans. With respect to this, cfr. Rosenkrantz (2002), Gargarella (2003a). 9 It is worth noting that although the authors coincided regarding the original idea, they would later differ with regard to the practical implications when analysing the Argentine situation, cfr. Rosenkrantz (2002); Gargarella (2003b).

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with regard to the duty of obedience, in the sense that only those excluded would be justified in their disobedience. What do the authors refer to when they speak of ‘alienation’?10 Rosenkrantz arrives via a negative reasoning. After covering the different reasons offered historically to account for when the law obliges, and discarding them as unsatisfactory,11 he proposes considering the idea of alienation with regard to the law as an extreme situation that justifies the cancellation of the duty of obedience. The idea of relevant alienation would not, for this author, be subjective (voluntary), where the individuals themselves have collaborated in its generation, but objective, operated by the law itself. In this line the author emphasises that ‘I am not “alienated” when due to our different economic power I am less influential in the political process than you are. I may be “overpowered” by you but not alienated. On the other hand, you are not “alienated” either merely because your political ruler is not governing you in good faith. If you have an open possibility to somehow make a difference [my italics] in the process of collective decision making, notwithstanding the intentions of the ruler, you will not become estranged enough from the political system to be alienated from it’ (Rosenkrantz, 2002). From this it may be concluded that alienated individuals would be those who have successfully been excluded by the law ‘as somehow undeserving sources or beneficiaries of political choices’. What is relevant for Rosenkrantz in characterising any subject as alienated would therefore be the juridical impossibility of his or her opinions and interests counting in the collective decision-making process. The alienation test that this author proposes would have, on the other hand, two dimensions: one juridical, the other factual. While juridical alienation would be that characterised above, factual alienation would come into force when the faulty operation of the institutions actually impedes their opinions and interests from counting in the collective decision-making process. The situation of alienation would be configured in either case with the same practical consequences; that is, the cancellation of the duty of obedience.

10 Both authors appear to be inspired – as Gargarella states elsewhere – in the characterization of Karl Marx’s labour alienation. In Marx’s characterization, voluntary work becomes compulsory; it is not the satisfaction of a need, but a means to satisfy foreign needs; thus, ‘the worker only feels near himself away from work, and feels out of himself at work’ (Marx, 1997, 107–123). 11 The author holds that the reasons for which the law is binding could boil down to four: (a) for being an institution which is functional to justice; (b) ‘for reasons of fair play’; (c) ‘because you have, either explicitly or implicitly, consented them’; and (d) ‘because it is a product of our collective making’ – understood as both equanimous participation in collective decision making, and the version which determines as a necessary condition that all count equally for those who make the decisions (Rosenkrantz, 2002).

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Gargarella also makes reference to the idea of alienation as legal alienation, and defines it as ‘a situation where the law does not represent a more or less faithful expression of our will as a community. Instead, it appears as a set of rules alien to our designs and control, which affects the most basic interests of the majority of a population that happens to be subjected to it’ (Gargarella, 2003b). In a situation of legal alienation, according to this author, the law is a central part of the obstacles that hinder the possibility of self-government, and not part of the conditions that make it possible. And he takes a step further stating that when the State begins to use its force in favour of maintaining a fundamentally unjust institutional situation, not only is there no duty of obedience to the law, but certain actions of ‘constitutional’ resistance may also be justified.12 Starting out from the same Marxist idea of alienation that, roughly speaking, seeks to describe the situation of individuals subjected by external causes, the authors differ in the way they outline the concept in the environment of the law, and in the practical relevance that its realization would have for the alienated individuals, albeit coinciding, it is worth reiterating, in the cancellation of the duty of obedience. Basically, while for Rosenkrantz what is relevant in determining whether there is alienation would be the existence of institutional obstacles that impede – formally or factually – the interests and opinions of the individuals from counting in the collective decision-making process (making a merely procedural characterization); for Gargarella it would be the fact that the law does not represent the collective will, thus affecting the most basic interests of the majority of the population (making a characterization committed to a certain procedure and minimum substantive contents). Bearing these definitions in mind, could one say that the interests of individuals that live below the poverty line are ignored by the law of democratic and constitutional Latin American societies? Or in the terms that Rosenkrantz proposes, could one say that in Latin American societies there is juridical alienation? And the answer, if we remit ourselves to constitutional and legal texts, would appear to be negative. The actualisation of the formally recognised rights is what would be in question.13 In this sense, I believe that the fruitful dimension to approach the prob12 By them, he understands actions that are distinguished by the presence of ‘violations of positive law, often taking on a violent character, which are destined to frustrate laws, policies or decisions taken by the government of the moment’ (Gargarella, 2003b). Let it be added that the author goes on to differentiate these from concepts such as civil disobedience or conscientious objection since both are fundamentally characterised by non-violence and an acceptance of the general validity of the law, and in the particular case of conscientious objection, by its implementation within the system. 13 O’Donnell marks a distinction to be made in Latin America between the bureaucratic State and the legal State, highlighting that ‘in Latin America, the scope of the legal State is limited’ (O’Donnell, 2002, 320). In this sense Pinheiro points out the

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lem in question is the factual one and, in that sense, I find the distinction proposed by Rosenkrantz useful. It is worth recalling that the factual dimension is actualised when on account of institutional deficiencies the interests and opinions of the individuals are actually neglected – in the case of Rosenkrantz; or, when the will of most of the population actually fails to be reflected in the law thus affecting their most basic interests – in the case of Gargarella.14 However, limiting the analysis to the configuration of the so-called ‘factual alienation’, both positions pose problems with regard to justifying the cancellation of the duty of obedience of the law for individuals or minorities whose basic necessities are not covered. In Rosenkrantz’s case because it would be sufficient that an individual’s interests and opinions have been considered, regardless of how this is actualised, to consider them integrated into the political community, the law thus binding him or her. Thus, the duty of obedience would not be cancelled in the case of an individual who has had the possibility of making a difference in the collective decisionmaking process, but who eventually is harmed by these decisions in his or her most basic interests in such a way that he or she lives below the poverty line. In Gargarella’s case, on the other hand, because in defining the situation of legal alienation, he makes reference only to the most basic necessities of a majority, but does not declare himself on the case of minorities or individuals whose basic interests could also be unprotected. Although Gargarella refers explicitly to the cancellation of the duty of obedience when a majority sees its most basic rights affected in collective decision-making processes, he says nothing about the case in which those affected are particular individuals or a minority. At this point, my proposal is to reflect once again on whether the function of the law should or should not be the general protection of certain minimum interests, in order to be able to consider that it provides reasons that justify the action. And for this, perhaps the best path is to take up again an extreme proposal, in view of its minimalism, as is that of Leviathan. As a preliminary conclusion, it could be agreed that in the discussion the authors presuppose the idea that there exists an obligation to obey the law, and that being or not being obliged will depend on whether the alienation tests they propose are passed. In this sense, belonging or not belonging to the political

gap existing in Latin America between the letter in the declaration of the law and the application and practice of the law (Pinheiro, 2002, 15–28). 14 It is worth noting that this factual problem is configured by Gargarella as a case of legal alienation (Gargarella, 2003b). However, following the distinction outlined by Rosenkrantz between juridical and factual alienation, Gargarella would not be making reference to formal obstacles that prevent the will of the majority from being reflected in the collective decisions, but to obstacles of a factual nature that would prevent it from being received. Therefore, though giving it the name of legal alienation, Gargarella would be attempting to report on a factual problem.

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community would be a relevant issue when determining whether the law generates the duty of obedience or not. What the authors propose revolves around the conditions under which an individual or group of individuals may be considered alienated or not; or what amounts to the same, excluded or included. It could be maintained that the law never even generates a prima facie duty of obedience, but we here accept the authors’ presuppositions and what will be questioned, therefore, are the conditions of their respective tests. It might be fitting, at this point, to reformulate the question: Can individuals who, not for lack of resources of the society in which they live, are in a situation of extreme poverty be considered as belonging to a political community? My proposal is, therefore, to ponder the problem from an extreme position such as Hobbes’s, since it is considered a strong one when searching for arguments that justify the duty of obligation to the law. Hobbes would agree with the authors in that there exists a duty to obey the law, and that this duty extends to all those belonging to the political community. He would differ, on the other hand, with regard to the test of alienation (or belonging) proposed. To make reference to Hobbes is to remit ourselves to one of the classic versions of the rational justification of the State. His argument, as Garzón Valdés points out, ‘sets out from the supposition that all rational beings, that is to say those who are in a position to appreciate their own interests, will accept that only the existence of a coercive order can guarantee a coexistence in which the “good” of social peace amply overcomes those “wrongs” that its maintenance may require’ (Garzón Valdés, 2000, 25). According to Hobbes’s proposal, the security obtained is a necessary and sufficient condition both to explain the emergence of the State and to justify it (2000, 25). The almighty Leviathan, which determines of its own what should and should not be done, may not lack, however, restrictions. In this line of thought, Dyzenhaus points out that to maintain that the sovereign is not subject to orders does not imply that he or she is not subject to other restrictions (Dyzenhaus 2001: 483).15 Mark Murphy, on the other hand, holds that the restrictions that Hobbes specifies are substantive. In this sense, he points out that Hobbes ‘clearly recognises that there are many cases in which subjects are under no obligation to obey the commands of their sovereigns. He allows that one has no obligation to obey commands (1) “to kill, wound, or mayme himself,” (2) “not to resist those that assault him,” (3) “to abstain from the use of food, ayre, medicine, or any other thing, without which he cannot alive,” [my italics] (4) to make any confession “concerning a crime done by himselfe,” or (5) “to serve as a soldier”’ (Murphy, 1995, 849; Hobbes, 1987, 268). Thus it is that behind the sovereign’s constitution is, as Hart recalls, ‘the tacit assumption that the proper end of human activity is survival; and this 15 Although it is worth noting that the author points out that these restrictions are not substantive but formal.

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rests on the simple contingent fact that most men most of the time wish to continue in existence’ (Hart 1994, 191–192).16 And, as Hobbes points out, if the sovereign cannot offer more protection the obligation of obedience declines,17 in the sense that any individual wishing to be rational would fail to have reasons that justify accepting the law as a practical reason. I find Hobbes’s proposal thought-provoking because it removes the discussion from the plane of which the individual rights are that would be at stake in a situation of extreme poverty, and carries it back to an even more basic fact, namely, the desire to survive, considering it as the measure of adjustment of all rational action. It is in its protection that the State and the law find the primary justification of their existence. In this sense, the protection of survival or lack of it, would be for Hobbes the measure of alienation. If one recaptures the function that Hobbes grants to the State and the law,18 and its underlying idea of alienation, we could agree that the deprived are outside the juridical framework, in the extreme sense of cancellation of the duty of obedience in the absence of the protection of survival. Because, as Dyzenhaus19 points out, the law 16 With the aim of relieving this idea from a metaphysical content – which underlies what would be a teleological approach to the nature of man – Hart points out that ‘we may hold it to be a mere contingent fact which could be otherwise, that in general men do desire to live, and that we may mean nothing more by calling survival a human goal or end than that men do desire it’ (Hart 1994, 191–192). In this sense, Hobbes does not subscribe to the anti-positivist principle which states that there is an independent moral good that must triumph in the case of a collision with positivist law, depriving law of its character – as was the case of Radbruch, cfr. Dyzenhaus (2001, 463). Also starting out from this idea but reaching different conclusions, cfr. Murphy (1995, 866–867). 17 As Dyzenhaus remarks (2001, 495). In this sense, as Murphy points out, ‘Hobbes’s justification for denying the existence of obligations to obey these commands is that one has laid down a right to that person; however, one’s right to protect him- or herself from serious harm is inalienable and one has no right to inflict such harm on him- or herself ’ (Murphy 1995, 850). 18 For Hobbes the laws of nature are binding only in foro interno. In order to become binding in foro externo, an agency is required that will centralise the coercive power and ensure a general binding to them. However, it is worth noting, as Murphy points out, that ‘commands of the sovereign that subjects are not obligated to obey are not civil laws, and that civil laws contrary to the laws of nature strip those laws of their in foro externo obligating power with the result that no conflict between civil law and natural law can arise . . . Hobbes’s first moves are to claim that some commands of the sovereign – those adherence to which would cause the subject great harm – are not civil law, but in all cases in which the sovereign’s commands do attain the status of civil law those commands determine which natural laws have in foro externo binding power’ (Murphy, 1995, 858–859). 19 As Dyzenhaus points out, ‘he gives an account of the rule of law in constituting civil society and it is the fact that one finds oneself in such society that provides one with the basis for obedience . . . And the rule of law . . . is the institutional expression of a relationship of reciprocity between ruler and ruled, or, as Hobbes himself put it, of the “mutual relation between Protection and Obedience”’ (Dyzenhaus, 2001, 496– 497).

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according to Hobbes is the institutional expression of a relationship of reciprocity, a mutual relationship of protection and obedience. This means that if one of the terms of the relationship fails, that is, if the protection disappears, any rational individual would lack reasons to obey the law. The general argument to justify an obligation of obedience to the law that is presupposed, is one based on the supposition that all rational beings who are in a position to appreciate their own interests will accept that only the existence of a coercive order can guarantee it. Yet this obligation would not be categorical but conditional.20 What would be in question, therefore, is whether individuals who live in a situation of extreme poverty actually belong to the political community. From Hobbes we could say that there is alienation when one is excluded from the political community, and this because the State fails to offer the protection that is the very reason that explains its existence, but also justifies it.21 If these individuals are excluded from the political community, the conditions needed to justify their obedience of the law are not met, or, in other words, the law cannot be considered in relation to them a reason justifying their actions. Consequently, for the alienated individuals the law would lack all bindingness.22 References Alexy, R. (1994), Begriff und Geltung des Rechts, Freiburg/Munich: Alber. – (1999), A Defence of Radbruch’s Formula, in David Dyzenhaus (ed.), Recrafting the Rule of Law: The Limits of Legal Order, Oxford: Hart Publishing, 15–39. Bobbio, N. (1992), El problema del positivismo jurídico, México, D.F.: Fontamara, trans. Ernesto Garzón Valdés. Dyzenhaus, D. (2001), Hobbes and the Legitimacy of Law, Law and Philosophy 20, 461–498. 20 Pursuing this line of interpretation, though reaching more radical conclusions, Murphy points out that in those cases in which the sovereign should issue a command that the subject is not obliged to obey, the order for that subject shall not be part of the law (Murphy, 1995, 850). 21 In this line, Ladenson points out that from a Hobbesian perspective, the Jews were not citizens of the Nazi regime but rather its captives (Ladenson, 1980, 144, footnote 15). 22 This, however, would not imply for the law the loss of its general status. In this sense, Ladenson points out: ‘Just as a person still has a right to self-defense even if he or she exceeds the degree of force allowed by that right in a given situation, so also a sovereign’s right to rule is not voided when abused. Although one might well emotionally resist conceding the Nazis right to rule, it must be reemphasized that according to the Hobbesian analysis here proposed the notion of having such a right is compatible with abusing it in particular circumstances and with that of a right to resist on the part of those individuals subject to the power of an oppressive sovereign’ (Ladenson, 1980, 143).

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Gargarella, R. (2003a), ¿Un camino sin salida? El derecho ante los “cortes de ruta” (manuscript, Universidad Torcuato di Tella). – (2003b), The Last Resort. The Right of Resistance in Situations of Legal Alienation, Yucay: SELA. Garzón Valdés, E. (1971), Derecho y “naturaleza de las cosas”. Análisis de una versión del derecho natural en el pensamiento jurídico alemán contemporáneo, Córdoba: Universidad Nacional de Córdoba. – (2000), Instituciones suicidas. Estudios de ética y política, México, D.F.: Paidós. – (2003), Optimismo y pesimismo en la democracia, Claves de razón práctica, nº 131, 24–32. Hart, H. L. (1994), The concept of law, Oxford: Clarendon Press. Hobbes, T. (1987), Leviathan or the Matter, Form and Power of a Commonwealth Ecclesiastical and Civil, London: Penguin. Ladenson, R. (1980), In Defense of a Hobbesian Conception of Law, Philosophy and Public Affairs, 9, 134–159. Losano, M. G. (2002), Sistema e struttura nel diritto, Il Novecento, Milano: Giuffrè. Marx, K. (1997), Manuscritos, Barcelona: Atalaya. Mertens, T. (2003), Nazism, Legal Positivism and Radbruch’s Thesis on Statutory Injustice, Law and Critique 14, 277–295. Murphy, M. (1995), Was Hobbes a Legal Positivist?, Ethics 105, 846–873. O’Donnell, G. (2002), Las poliarquías y la (in)efectividad de la ley en América Latina, in Juan E. Méndez/Guillermo O’Donnell/Paulo Sérgio Pinheiro (comps.), La (in)efectividad de la ley y la exclusión en América Latina, Buenos Aires: Paidós, 15–28. Pinheiro, P. S. (2002), La efectividad de la ley y los desfavorecidos en América Latina, in Juan E. Méndez/Guillermo O’Donnell/Paulo Sérgio Pinheiro (comps.), La (in)efectividad de la ley y la exclusión en América Latina, Buenos Aires: Paidós, 305–336. Rosenkrantz, C. (2002), The legal and constitutional demands of poverty, Punta del Este: SELA. Published as ‘La Pobreza, la Ley y la Constitución’, en El derecho como objeto e instrumento de transformación, Buenos Aires: Editores del Puerto.

Poverty and Protection of Constitutional Liberties: Two Irreconcilable Perspectives? Freedom from Poverty as a Fundamental Right1 Susanna Pozzolo I would offer a few reasons to support the setting of the right of freedom from poverty in the field of liberal theory.2 The aim of this paper is to extend the boundaries of a liberal tradition in which freedom from poverty as an individual right sits uneasily. A liberal tradition that dates back to Isaiah Berlin,3 but which has been reprised by, for example, Gerald C. MacCallum4 and John Rawls,5 and that expels freedom from want from liberal doctrine, consequently transforming it into a value of negative freedom and making of poverty a problem. 1. Liberal Freedoms, Poverty, and the Market The theoretical device of the social contract marked the advent of a political organization characterized by its voluntary nature: one, that is, represented by a This text represents a revised version of the paper presented at the 3rd PhD Euroconferences in Legal Philosophy, which the entire volume is dedicated to. I would like to thank Silvana Catignone, Mariangela Ripoli, and Mauro Barberis with whom I discussed some ideas for this work. I chose to retain the original title of the paper even though the text has been partly modified. 2 Universal Declaration of Human Rights: “Everyone . . . is entitled to realization . . . of the economic, social and cultural rights indispensable for his dignity . . . Everyone has the right to work . . . Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services . . . Everyone has the right to education” (Articles 22, 23, 25, and 26). Copenhagen Declaration: “We commit ourselves to . . . eradicating poverty . . . [W]e will . . . [f]ormulate . . . policies . . . geared to . . . eradicating absolute poverty by a target date . . . specified by each country[,] . . . address the root causes of poverty[,] . . . [and provide] food security, education, . . . livelihood, . . . health-care, . . . [and] shelter” (Commitment 2). 3 Berlin, 1969. The distinction between positive and negative liberty dates back to Kant, 1785, it. trans., sec. III, 148–149; 1797, it. trans., 14 ff. 4 MacCallum Jr., 1991, 100–122. 5 Cf. Rawls, 1971a. 1

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social order intended to counteract the social condition of the state of nature. The provision of liberty rights is one of the central elements of this political transformation. Through this premise, liberal theory takes up the challenge to harmonize the fundamental presupposition of individual autonomy with the establishment of a heteronomous social order which protects that autonomy.6 Although the contractual expedient has a long history, it became a political instrument only with the advent of jusnaturalism, which puts it at the core of political theory, where it remains even today.7 Obviously, the contractual procedure is a pure idea of the intellect8 notwithstanding social contract being thought of both as a regulative idea9 to state justification and as an historical fact10; in both cases its affirmation determines the centrality of the category of consent within the field of political philosophy. The different uses of the jusnatural contractual model demonstrate specifications regarding the characteristics of the state of nature, the nature of political power, and the form and the content of the contract.11 Among the different models reconstructable,12 the Lockean is paradigmatically liberal: in it authority is born limited in its power and oriented toward the protection of individual rights, which were conserved with the drawing up of the contract, with it having renounced only self-defence. However, it is certainly Kant who takes the individualism and moral universalism of rational jusnaturalism to the extreme consequences lying at the base of liberal thought. Also, the Kantian model respects the division between the state of nature – which corresponds to the sphere of free action – and the social contract – which gives life to political society and guarantees individual liberties, that is, civil society. The Kantian distinction between internal and external liberty is the basis of the liberal idea according to which political institutions must establish those conditions within which the will of each person can reconcile itself with the will of anyone else, on the basis of a universal law of liberty.13 Political organization, in fact, has the aim of guaranteeing only external liberty, that is, that innate or natural right which consists in freedom of action, that which we commonly call negative liberty, understood as the absence of impediments or constraints. Internal liberty, on the other hand, coincides with autonomy, understood as free will, which is not subject to external regulation. The liberty guaranteed by civil society, then, corresponds to a sphere of actions not 6

Garzón Valdés, 2003, 65. Noted the influence exercised by the hypothetical contract of Rawls’s A Theory of Justice. 8 Bobbio, 1989, 4. 9 For instance, Hobbes and Kant. 10 For instance, Rousseau, Locke, and Pufendorf. 11 One can reconstruct at least three principal models pertaining to content, on this see, for example, Ruiz Miguel, 2002; MacPherson, 1975. 12 Lockean, Hobbesian, Rousseauesque. 13 Kant, 1797, 34–35. 7

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impeded and not imposed, which must be guaranteed by political institutions, and which limit individual will with a view to the liberty of all. Human asociality, presumed by this formulation, which is a motive of uncertainty, finds resolution through the justification which establishes precisely the civil society.14 Although the contractual expedient is not generally considered to be an argument with any great persuasive force,15 it constitutes even today the core of the political proposal of liberalism. Its most important contemporary use is certainly found in A Theory of Justice by John Rawls where he proposed a hypothetical contract, a thought experiment which can be carried out at any time. The contract is, in fact, drawn up a particular state of nature, represented by the original position: a situation in which the contracting parties divest themselves of all of that information which could alter the choice of the principles of justice to lay at the foundation of a well-ordered society. Rawlsian contracting parties are individuals considered as pure ‘I’, completely isolated not only from other actual human beings, thus not able to make comparative evaluations between their own situation and that of other people, but they are also in the dark about themselves, since they know neither their social position, nor their own qualities and defects. With this shrewdness Rawls tries to remedy the scant attention which the contract theory has reserved to the existing natural differences among individuals, which should have rendered problematic the formulation of an equitable contract. In the Rawlsian formulation individuals are different from each other, and although they are aware of this they do not know how and to what extent they are different from each other; what they have in common and that in which they are actually equal is their moral right to the protection of their own personal sphere from the interference of other people. Even though the Rawlsian contract can be considered peculiar in the field of the liberal contract tradition, it marks a fundamental moment which is necessary to take into account, seeing that, as Kymlicka has maintained, from A Theory of Justice onward thought has developed according to its similarities and differences from Rawls’s positions. Rawlsian formulation permits highlighting the adherence of contemporary liberalism to an egalitarian ethic which calls for refining the theory in order to consider the fact of individual diversity. Equality among the contracting parties, which until that moment was a condition a priori of the state of nature, is no longer an objective or natural fact but represents an aim to be attained really through the contract and the social construction: equality has become part of the contractual content.16 It represents a regulative prin14

On the pre-liberal liberty cf. Barberis, 2000. Cf. Kymlicka, 1990, 58 ff. 16 This development can appear to be an element of a break with tradition; however, it accentuates the contrast between the contractual models and those alternatives, highlighting it: rationalism, the conception of the state as antithesis and not the com15

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ciple for justice and the central element for the formulation of the difference principle .17 The different consideration of equality permits emphasizing unequivocally the artificial and voluntary character of the liberal political organization and of the contract which gives it foundation. Political society is not born naturally. On the contrary, it rises in order to guarantee those goods which nature distributes in a very casual and unjustified way. Although one certainly cannot speak of a real injustice, since the natural distribution of goods and capacity is a state of fact, the consideration of equality as an aim of politics highlights the natural limit of the sphere of morality and shows sensitivity toward the differences and the causes which determine the inequality. Bruno Celano has aptly called this project the “denaturalization of justice”.18 It is based on the ethical principle that “natural inequalities are irrelevant from the moral point of view”,19 and the political organization seeks to achieve a redistribution which fulfils this principle.20 The inequalities that they want to make irrelevant are those which are impossible to remedy by means of conscious and deliberate human intervention: “they are conceived . . . as differences whose production or elimination are not within the power of human agency to bring about or impede”.21 The contractual device hides an ambitious project, seeing that political society is born and bases itself on a delicate balance of strengths and weaknesses. It is weak, because it is born limited in its power – individuals conserve their own subjective rights – but at the same time it is strong, because it is born “against nature”, and the idea of justice that it subsumes is also “against nature”: it is hostile to the random distribution of power and wealth and confident that it can be changed. The denial of equality as naturally given pre-politically and the accentuation of its character of results and aims of politics remark at one and the same time on the artificiality and the boldness of the liberal project. Positive consideration of the natural differences allows the category of equality to emerge and to occupy an independent place within the bounds of the theory.22 plement of man, the vision of the state of nature as the pre-political state, the criterion of legitimation through rational consent, the moral equality of individuals. 17 Cf. Rawls, 1971a, § 13 Democratic Equality and the Difference Principle. 18 Celano, 2000, 81. 19 Ibid., 81. 20 On this see Cohen, 1989. 21 Celano, 2000, 86. 22 In A Theory of Justice the denaturalization strategy exists in order to achieve the egalitarian ideal through identification of those principles of justice which permit the construction of a fair and free society in which individuals are able to exercise their moral qualities to the full. The Rawlsian theory, in fact, does not assume freedom as a value in and of itself; rather it considers freedom to be a mediated value with which to achieve a fair society. A Theory of Justice is a liberal theory which has probably

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Taking up the challenge to harmonize individual autonomy with political organization (to fulfil the above-stated principle of justice), liberalism traditionally maintains that political society must guarantee so-called ‘negative rights’.23 Political intervention is Kantian called upon to defend the external liberty, that is, the freedom of action. The rules are thought to alter the natural distribution of goods, in the end providing a free space in which people are left alone to make their own choices: it is in this that liberal freedom consists. For these reasons the most distinctive feature of liberalism is its endeavour to remove the obstacles that impede individual choices and the exchange of information and goods, but without increasing the power of the governors. Liberal rights consist in freedom from impediments: they compel others and above all the state not to impede upon that which they defend. 1.1. The Contract and the Market Although liberalism is a political theory and not an economic one, it almost naturally links with those theories which, by basing themselves on respect for individual choices, trust the invisible hand of the free market to allocate resources. Thus, for example, Hayek maintains that guaranteeing negative rights, and only those rights, is also functional to defence of the market, which in its turn is an essential means to reduce the threat of tyranny.24 From this perspective, the granting of individual rights is intended to free human beings from the economic constraints typical of the ancien régime: it is the non-servile who are free, those who have no constraints. And yet, although the capitalist system is profoundly individualistic, it has had the effect of rendering markets and persons closely interdependent, so that the freed slave is still strictly dependent on others but no longer occupies a formal subordinate position.25 The capitalistic system of production, though not able to allocate resources fairly, has had the merit of enormously multiplying the output of goods, to the extent that it has eliminated the problem of food shortages as one of the factors responsible for the hardships of poverty, and for hunger in particular, that seems to be connected with the difficulty of some

been the first to take due account of the problem of poverty. Kymlicka, 1990, 53. On the relationship between equality and freedom see also Dworkin, 2000. 23 Also, Rawls attributes prime value to the fundamental freedoms, ordering the various components of his theory of justice so that they are up most in the lexicographical hierarchy, as well as naturally pertaining to the constitutional domain. The recognition of equal opportunities and the equality of primary goods or resources stand lower in the hierarchy and are matters that can be dealt with by legislation. Rawls, 1971b, 266. 24 Cf., for example, Hayek, 1982. 25 Cf. Sen, 1981.

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individuals and groups in gaining access to the market.26 These shifts from the shortage of goods to the ethical and political issue of the ownership of those goods: the hungry do not possess sufficient resources, or resources suited to the market accessible to them (if there is one), in order to obtain the amount of food they need to survive. Nevertheless, it is today almost banal to point out that economic theory has not provided support for liberal political theory because of the inability of the market system to reduce inequalities in the allocation of resources; instead, it has helped increase them by allowing both the persistence and the growth of poverty, by letting exist or forcing a large part of the world’s population to suffer severe deprivation: in a word, poverty.27 1.2. Poverty I obviously use the term ‘poverty’ to refer to all those situations in which people do not have sufficient resources for their sustenance; but it does not refer to these alone. ‘Poverty’, in fact, is used here in a wider sense to denote all situations in which people do not enjoy a certain standard of living and/or do not have certain opportunities, such as access to education and health care, so that they are unable to select and develop their own life-projects. The notion of poverty that I use is similar to Sen’s notion when he treats poverty as incapability;28 that is, ‘poverty’ as lack for the individual of his substantive freedom to live the kind of life that he, with reasons, considers valuable.29 26 When reflecting on poverty and hunger, in fact, in a situation of a shortage or an absence of food, we may be forced to accept the idea that a part of the population has to suffer privation, for otherwise our efforts will give rise to general impoverishment without solving the problem (on this see Garzón Valdés, 1993). Fortunately, this is not the situation as it stands, cf. A. Sen, 1981. Among the different actions put into effect keeping these difficulties in mind I mention the micro-credit experiment in India; on this see Krishnamurthy/Ratnaparkhi, 2002. 27 Also, the World Bank admits that at least two thousand million people, for twenty years, did not have any benefit from the imposition of the free market and, on the contrary, they have seen an increase in their poverty. Cf. Chua, 2003, 269. 28 Cf. Sen, 1999. 29 I refer to complex situations like that recalled by Sen who, thinking over the distinction between negative and positive liberty, over economic freedom and poverty, writes: “Considered the case of Kader Mian . . . His death robbed him of the basic positive freedom to continue to live (as he would have chosen to do). That is bad enough, but what makes the tragedy much more terrible is the fact that this failure of positive freedom to continue to live was brought about by an offensive act of an assailant, not by natural forces of age or disease. . . . That dreadful aspect of this event takes us from the positive to negative conception. . . . Furthermore, had Kader Mian listened to his wife and . . . not taken up the gainful employment he was being offered, then that too would have been a loss of negative freedom: the loss of freedom to accept employment because of interference . . . by others. But there is a further feature of the interconnection of positive and negative freedoms. Kader Mian had to take the

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Since poverty is a severely incapacitating condition which impedes the exercise of any other right,30 to the extent that it is an undesired outcome or an unresolved problem of the market system,31 I believe it necessary to rethink the connection between liberal freedoms and the free market,32 and therefore to rethink the notion itself of liberal freedom – which is certainly not guaranteed to those whose stomachs are empty. Poverty subordinates individuals and makes them unequal in the exercise of their rights, although not, at least in abstract, in their entitlement to them. I maintain that a society cannot call itself really liberal if it does not enable its members to exercise the rights that it in abstract grants to all of them. The free market may have favoured the granting of the liberal freedoms but it has certainly not guaranteed their exercise. Nevertheless, as writes Sen, “the success of a society is to be evaluated . . . primarily by the substantive freedoms that the members of that society enjoy. . . . Having greater freedom to do the things one has reason to value is (i) significant in itself for the person’s overall freedom, and (ii) important in fostering the person’s opportunity to have valuable outcome. Both are relevant to the evaluation of freedom of the members of the society and thus crucial to the assessment of the society’s development”. Substantive freedom is “a principal determinant of individual initiative and social effectiveness. Greater freedom enhances the ability of people to help themselves and also to influence the world, and these matters are central to the process of development”.33 2. Market, Resources, and Benefits When addressing the problem of poverty from the perspective of liberal ethics, it should be stressed that the belief that poverty can be reduced or eliminated through benefits granted by the ‘non-poor’ to the ‘poor’ is merely an risk of being killed by the thugs because he was poor and his family was hungry”. Although, in Sen’s opinion, poverty is not in itself a violation of negative freedom, he writes: “was precisely this failure of positive freedom that had forced Kader Mian to go looking for a little income in a hostile territory . . . His murder may have been the ultimate violation of his negative freedom, but he was forced into that extremely vulnerable territory in the first place by his poverty and the corresponding lack of positive freedom. While there is a real distinction between the positive and negative aspects of freedom, the different aspects can be thoroughly interrelated and intertwined”: Sen, 1990, 49–50. 30 Cf. Shue, 1980. 31 It isn’t possible in this setting to analyse the operation of the market; however, as to present purposes and purely as an example, it is sufficient to refer to Gray, 1998; Chua, 2003; Wade, 2001a, 2001b. 32 For the connections between the free market and democracy in particular, cf. Chua, 2003. 33 Sen, 1999, 18.

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ideological product of an inadequately developed theory of justice and of faith in the free market. I refer, in short, to the notion of direct action intended to benefit the poor by bestowing upon them something conceived as a gift or as an act of charity which the non-poor sincerely believe the poor do not deserve. This view of poverty assumes that it results from individual failure.34 It takes no account of real market dynamics and conceives the direct action taken to reduce poverty as a concession, as a mere act of benevolence. This manner of framing the question prevents poverty from being seen as a form of social discrimination, with the consequence that it instead becomes solely the personal responsibility or the fault of the persons who suffer it. In short, there seems to be some sort of negative ethical judgement on the ability of the poor to make use of their freedom: although the poor are free because they enjoy liberal rights, they have failed to choose correctly, and the effects of that error should not be borne by the other persons who have made better lifechoices. In this view, whatever action taken to improve the lot of the poor should be regarded as a benefit, which, moreover, requires unwarranted sacrifice by the other members of society.35 This approach to the problem is debatable on numerous grounds and leaves various problems unresolved. Firstly, the proving ground of the globalized market is not what the political theory assumes it to be. For if we carefully examine the phenomenon of interdependence, and if we bear in mind the practical impossibility for people individually to control the allocation of goods which they may have helped to produce, it is difficult to conceive poverty as an individual failure or as the result of personal shortcomings. Rather than a controlling criterion, the market seems to be a new kind of state of nature without any safety and certainty for individuals. In this context, the recognition of liberal freedoms is not sufficient to affect on it the ability to counteract the negative effects:36 this criterion makes of individual freedom a function of the possess, but this is like affirming that a man is human only if he has ownership of himself, only if he is free from all but mercantile relationships, and then one is forced to convert moral values into the values of the market .37 This conclusion can’t be accepted by contemporary liberal egalitarian liberalism. Nevertheless, the liberal thought supports the ideal of the denaturalization of justice through the establishment of negative liberty and the political state, 34 This also applies to the mode of thought that treats an entire poor country as if it were a single individual who has failed to control the conduct of his governors. 35 On the origins of this belief see Ripoli, 1990, 1997, 2001; Baroncelli/Assereto, 1983. 36 In fact, as the study proposed by Amy Chua emphasizes, the imposition of the democratic procedure can accentuate conflicts. 37 Cf. MacPherson, 1975, 300.

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but it doesn’t seem disposed to adopt the same strategy toward the economic state, where the market seems to be the criterion to justify possession, distribution of goods, fortune, and poverty. However, it is necessary to consider that such a strategy is thought of for the man of the mercantile society that would be composed of individual entrepreneurs considered in isolation: here political society has the task of defending only the external liberty, which is a necessary presupposition for the development of civil society. But the age of globalization does not correspond to such an ideal: it has changed both the category of the holders of rights38 and the socio-economic context.39 The liberal project must take into account such differences, and take note that “individual freedom is quintessentially a social product”, which is based on “a two-way relation between (i) social arrangements to expand individual freedoms and (ii) the use of individual freedoms not only to improve the respective lives but also to make the social arrangements more appropriate and effective”.40 If it is true that the simple incapacity to achieve an aim cannot be defined as a lack of freedom, it is necessary to inquire into the possibility of the evolution of such a notion within the sphere of a globalized society, since the elaboration of the distinction between freedom and the value freedom41 does not settle the question. The point is that the same considerations leading to the conclusion that the natural distribution of goods and abilities is unfair can be adduced to affirm that also the distribution resulting from the market system is unfair. Indeed, if the natural inequalities that the contractual procedure seeks to make irrelevant are those which are impossible to remedy by means of conscious and deliberate human intervention, then at least a part of the contents of the contract must be directed toward offsetting the disadvantages resulting from a distribution which is morally unacceptable because it is performed by means of a lottery in which individuals have not consciously taken part, accepting the risks; instead their only option has been to accept its results.42 If the rationality of the liberal project is assumed, that it finds even an instrumental justification in the achievement of the ends (freedom) of individuals, in the measure in which the market also represents a lottery with the same defects as the natural one, it as much represents a morally unacceptable state and is in need of rational modification. The market lottery functions randomly, or as a tertium quid. Social institutions like the market, as Hayek pointed out,43 are the product of a spontaneous order 38 No longer restricted to ‘man’, but extended (at least – Cf. De Lora, 2003) to ‘individual’, then ‘woman’, ‘child’, ‘the elderly’, etc. 39 It is not a society of free individual entrepreneurs that is produced, but a globalized market is developed characterized by considerable processes of concentration of economic and political power Cf., for example, Schifferes, 2002; Elliott/Denny, 2002). 40 Sen, 1999, 31. 41 Cf., in particular, Berlin, 1969. 42 On the different models of distribution of goods cf. Tarello, 1979.

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between the natural in the strict sense and the artificial (or the exogenously determined). The market is the result of diverse and conflicting voluntary interventions which achieve a certain type of equilibrium for endogenous reasons, according to the mechanism which Adam Smith efficaciously termed “the invisible hand”. In short, the natural and the artificial cooperate with each other, with the consequence that we are unable to say to what extent one or the other of them has contributed to the result.44 In order to remedy the traditional indifference toward the lottery of the market Rawls proposes the difference principle. From the last “the higher expectations of those better situated are just if and only if they work as part of a scheme which improves the expectations of the least advantaged members of society. . . . [I]nequality in life prospect . . . is justifiable only if the difference in expectation is to the advantage of the representative man who is worse off”.45 This principle represents one of the most interesting liberal attempts to limit the economic inequality.46 Nevertheless, it shows a double restriction. In the first place, it applies only in the moment of choice institutive of the political organization, subsequently the market continues to carry out its role in the arena within which the actions of individuals are determined and of which they will be held responsible. Nevertheless “part of the fundamental theorem of welfare economics asserts that any efficient outcome can be achieved by a competitive market equilibrium so long as the initial distribution of endowments is appropriately chosen. This invites the conclusion that state action should be limited to the choice of a suitable distribution of incomes. Production can be left to the market. Thus redistributive market liberalism based on a dichotomy between distribution [ – the subject of civil obligations, altruism, and state involvement – ]and production and exchange [of goods – a matter for private profit, selfish behaviour, and freedom from government intervention]. Self-interest is the driving force of commercial activity, social welfare the proper concern of political action. Considerations of fairness and justice should be the basis of our social behaviour, but are inappropriate factors in our business decisions”.47 The State would have the task of redistribution that must be done with the least interference, its intervention must be limited to specific situations which have principally an anti-monopolistic task. It could have only a connection task between different wants and wishes, without it really functioning like a globalized capitalistic market. In the second place, the difference principle finds application only within the limits of that set of “citizens united by what Mill called ‘com43

See for example, Hayek, 1982, 35 ff. Hayek, 1978, 294. 45 Rawls, 1971a, first quotation p. 75, second quotation p. 78. 46 For a survey of some criticisms cf. Kymlicka, 1990. Another interesting proposal could be Parijs, 1995. 47 Cf. Kay, 2002. Rawls, 2001, 130–131. 44

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mon sympathies’”,48 that is, inside of the Rawlsian definition of ‘people’. Rawls, in fact, rejects the idea that the difference principle could be a condition for global justice “on the ground that it is unacceptable for one people to bear certain costs of decisions made by another”.49 Therefore, even at best, the market continues to carry out a regulated role within the restricted Rawlsian community and completely non-regulated in the sphere of the international community. The justification offered by Rawls is insufficient. “Why this ground should not analogously disqualify the difference principle for national societies as well[?]”;50 and, if this principle is the most reasonable for domestic economic order, then “[W]hy is it not also the most reasonable one for us to advocate in regard to the global economic order?”.51 I believe that the reason of Rawlsians reject is taken root in the adoption of a gradual principle typical of one kind of liberal tolerance that, accepting cultural difference datum, aims to obtain a general model of good life by gradual steps. So, first, only the liberal peoples could be members of the society of peoples and later, when the other peoples share the “common sympathies” as well, they could be members of it. In fact, The Law of Peoples does not want to be simply a modus vivendi, and therefore unity “must be rooted in a reasonable political conception of right and justice affirmed by an overlapping consensus of comprehensive doctrines”,52 exactly like those of liberal peoples are. What emerges here is a sort of contradiction between the universalism of the moral theory and the localism of the law of peoples. Rawls’s rejection seems to be anachronistic, looking at the world’s increasing interdependence, and wrongly founded, since, as Garzón Valdés has stressed, there is not some direct road which connects the presumed solidarity of small groups to the welfare state “because it is about two different levels of problems, and the passage from one to the other requires the construction of institutions which do not derive, so as to say, “naturally” from communitarian solidarity”.53 In short, the fact that there are non-liberal peoples54 cannot in itself be a reason for a limitation of the universalism of the moral theory. Rawls’s rejection seems to bring to the critical morality plane55 the difficulties of its transformation into positive morality.56 It appears, in other words, that the liberal theory in the moment in 48

Rawls, 1999, 23. Pogge, 2002, 40. 50 Pogge, 2002, 40. 51 Pogge, 2002, 40. 52 Rawls, 1999, 16. 53 Garzón Valdés, 2003, 346. 54 On the difficulties of the extension of welfare models cf. Chua, 2003, 294–295. 55 That is, on the plane of those rules and principles which satisfy or should satisfy the criteria of universality and impartiality. 56 That is, of that set of rules and principles valid within a particular society. 49

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which it affirms its comprehensiveness on the moral plane (affirming that “the foreign policy of a liberal people . . . will be to act gradually to shape all not yet liberal societies in a liberal direction, until eventually (in the ideal case) all societies are liberal”57) rejects at the same time its moral universalism (reaffirming the requirement of national barriers and a solidarity notion founded on a presumed common sentiment). Even with the introduction of the difference principle, then, Rawls doesn’t seem to give the same weight or the same attention to the two lotteries, to that natural one and to that one of the market. Which leaves things particularly unsatisfactory, since international trade, world agreements, banking institutions, and centres such as the World Monetary Fund and the World Bank constantly intervene in the life of the community and in the regulation of the economic life of the whole world, conditioning the functioning, so, in these circumstances, to affirm that justice requires non-interference beyond national borders means only to leave a free hand to such powers.58 To limit, as Rawls proposes, the difference principle to the borders of the community and to “decent peoples”, means not to take into account the real structure of markets and their interdependence. It seems, in substance, that ethical considerations find a place only inside national borders and have nothing to say outside of them.59 On the contrary, to me it seems essential to emphasize the need to consider independently the market lottery. With regard to the latter, as Hayek affirms, one notes that it has not been constructed by us: “We have never designed our economic system . . . We have stumbled into it”.60 But nor is this natural in the strict sense; instead, it is ambiguous: the market acts through the activities and abstentions of agents driven by the need to satisfy their interests, yet the outcome is not preordained but random. The results of this endeavour, in that individuals are engaged in it without being able to choose otherwise, are “differences whose production or elimination are not within the power of human agency to bring about or impede”. Hence, like natural differences, these results cannot be morally acceptable. It should also be borne in mind that the result of this lottery cannot be said to be ethical or moral, because the strongest, the most ferocious, the immoral could be at an advantage in it. But, even adopting a traditional liberal point of view, if we accept that this social lottery constituted by the market is a set of activities or interventions, in order to remain coherent with liberal doctrine it is necessary to defend negative freedom from this.61 57

Rawls, 1999, 82. Cf. O’Neill, 2000, 131. 59 Cf. O’Neill, 2000, 119. 60 Hayek, 1982, vol. III, 164. 61 The liberal economic model is not at all natural: in great part it is an “ideal” model experienced, perhaps, only in the England of the nineteenth century. Economic liberalism is not a “spontaneous” product, but the result of political will. As Chua 58

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In sum, if the ideal of justice is denaturalized, the market should also be subjected to the same process. But, strictly speaking, this is not a denaturalization, because the market lottery, as just said, is not effectively natural: it is a space constructed by rules and which exists because there are norms that protect property and commerce and recognize the validity of transactions and wills, and because there are police forces which use coercion and defend these rules even to the extent of depriving those who breach them of the most fundamental right of all: that of physical freedom. On careful consideration, therefore, correcting the social lottery depends only on how already-existing rules have been formulated and it does not require any form of denaturalization.62 Hence, given that the capitalist (and moreover globalized) market also functions as a morally unacceptable lottery, insofar as participation in it is not a choice because there is no other option, without considering any further corrective other than the liberal freedoms, it cannot be the criterion with which to recognize merits and responsibilities.63 On the contrary, the idea of a universal civilization based on the market seems to be a recipe for continuous conflict. 2.1. Market: Merits and Responsabilities However, behind the parameter of the market there exists further criteria which apparently persist even when the former is eliminated. notes, 2003, 294 there does not exist any Western country which bases itself even only in part on an economic system truly liberal (there are, on the contrary, strong redistributive measures: progressive taxation, social security, unemployment subsidies, etc.). But it is exactly the free market which powerful international organizations (such as the International Monetary Fund) have been promoting for decades throughout the non-Western world. 62 The point is that reshaping the space of freedom in order to guarantee its preconditions is, in the eyes of many liberals, a further denaturalization, because they assume the false premise of the naturalness of the market and therefore the status quo. But this strategy is only a way to guarantee an unequal distribution resulting from previous acts of force and a market lottery that cannot be considered acceptable and which protects only those who possess the necessary goods and are able to exercise their freedoms. Given that the current situation is the ‘neutral’ one, it seems that acting to help the poor is to their benefit, but this argument is fallacious (see Wright, 1963, 108, see also Cap III, 1). Nevertheless, the doctrine itself is distorted. Why should we consider the present state of things legitimate? Why should we not consider how the present distribution takes place? Why should what each individual deserves be decided in this way? The neutrality of this point of departure, and therefore the neutrality required of public action, is truly partial and peculiar. On the one hand, the point from which it starts is not neutral; on the other, public action ends up by defending a particular state of things obtained illegitimately. On this see Gargarella, 2000. 63 Poverty may be due to various factors, and the granting of liberal freedoms like the absence of impediment is not in itself enough to prevent it. Cf. Brodsky/Day, 2001. On the principle of equality as a principle of non-discrimination and as a principle of anti-subordination see Hasnas, 2002.

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The meritocratic argument, for example. This is based on the idea that justice should annul the inequalities that do not derive from merit but originate from a person’s natural lot. The hypothesis here is that a distinction can be drawn between inequalities which are deserved and those which are not – assuming that inequalities of the former kind exist. A problem, however, arises as soon as we enquire as to the qualities or characteristics which give rise to the merit, and whether or not these must be deserved as well. “If . . . we answer ‘no’, the antithesis between inequalities due to merit and those due to natural differences collapses: it may happen that an inequality in social circumstances is merited but at the same time is due to natural differences”.64 If the answer is ‘yes’, an infinite series of meta-merits is generated. Hence it follows that, on rejecting the hypothesis of absolute equality and accepting the possibility that a person may merit something extra because of qualities that he or she has not merited, one must also accept the possibility of situations of inequality in social circumstances due to natural inequalities. But this may negatively affect the moral irrelevance of these latter inequalities. In order to find a way out of the difficulties surrounding the meritocratic argument, recourse is usually made to the responsibility argument. This strategy does not seek to establish absolute equality among the members of society. Rather, and in apparently a more simple manner, after all the members of society have been given entitlement to liberal freedoms, this strategy seeks to make each of them liable for their choices made freely within the confines of those freedoms. This conception of justice considers inequalities due to ‘right’ or ‘wrong’ choices to be justified on the assumption that a distinction can been drawn between them.65 Also from this point of view, natural inequalities like physical endowments are considered irrelevant, because no one can be held responsible for having more or fewer talents, or some talents and not others, compared to another individual. Given the injustice of the lottery that has allocated these resources, a distinction must be made between the bad luck and the fortune or misfortune that derive from consciously engaging in risky activities; “individuals should be equal in the advantages or disadvantages that they enjoy, except for the differences that derive from their choices”,66 for which they can be held responsible. The basis for drawing this distinction and identifying the choices for which a person can be held responsible once again seems to be the market; but it is only a sort of synthetic criterion used to put forward a certain view of human beings and their rationality. In particular, it is the Humean model or the Kantian model understood as instruments used to define the notion of choice and responsibility and thereby to apply the idea of justice based 64 65 66

Celano, 2000, 98. Cf. Hurley, 2001. Celano, 2000, 106.

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on responsibility for choices. Again following Celano, one may reflect on these two models of justification and explanation for action and practical rationality. In the former case,67 the model takes action to be determined by “two sets of factors: beliefs and desires. Desires (or preferences . . .) establish the goals, ends, objectives of action; (relevant) beliefs establish the conditions for their achievement (for the satisfaction, that is, of individual preferences). Practical rationality consists in identifying the means best suited to achievement of those ends . . . and in acting accordingly”.68 Hence, an action is justified if, given the agent’s beliefs, it maximizes his or her preferences. Continuing with the Humean model, Celano shows that it is not possible to distinguish between those aspects of life which stem from choice and those aspects which are due to natural and non-imputable properties. “If one adopts the Humean model . . . choice depends . . . on preferences. Yet, is or is not the distribution of individual preferences an aspect of natural distribution?”.69 If it is, then choices depend (at least in part) on natural properties for which an individual cannot be held responsible. If it is not, then preferences seem to be a matter of choice for which an individual can be held responsible; but this, under the Humean model, gives rise to an infinite series of meta-preferences. In the latter case, that of the Kantian model, the principles of action “can be held to be the expression of the rational nature” of humans “if and only if they can be regarded as principles which the individuals in question would choose, as rational and independent actors, if they were in an original situation of equality”.70 In this way they would not depend on natural or social contingencies, or on conditioning of various kinds, but would result from a choice made by a completely denaturalized person who regards the world from outside: they would express the essence of a rational and free subject. In this latter case, the strategy for distinguishing between responsible actions and otherwise is problematic and substantially metaphysical. In short, neither model seems to be satisfactory: which is an outcome that on the one hand raises problems for those who wish to assert the individual responsibility argument, and on the other leaves a problem unresolved for those who wish to assert the thesis of the denaturalization of justice.71 Hence, the 67

Cf. Hume, 1739, especially 614 ff. Celano, 2000, 107. 69 Celano, 2000, 108. 70 Celano, 2000, 112. 71 Anyway, it is debatable that reducing poverty is to benefit someone, and that the categories of merit or responsibility (see forward) are of relevance in a context where attempts are made to reduce poverty. Given that this concerns a situation in which primary and (by definition) necessary goods are lacking, the condition of poverty can be defined as that condition in which harm is being caused. Not causing harm to someone, however, is not to benefit them: it would be counter-intuitive to maintain that we should thank all those who have not harmed us, whereas it is intuitive that we should thank those who have helped us or brought us benefit. The argument that dis68

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difficulty of identifying the criterion on the basis of which to intervene to redress advantages and disadvantages that still persists.72 3. Freedom from Poverty Classical liberal theory developed an ideal of freedom which has been translated into the recognition of human rights. Behind this ideal there is a universalist and cosmopolitan aspiration, notwithstanding it, the rights and liberties were conceived and developed as limited range rights: as rights against the state. They are made possible by a state that institutes them and defends them. They are therefore simultaneously rights against the state and rights through the state:73 they depend on legal recognition;74 and they do not presuppose the total absence of rules: on the contrary, they require rules if they are to exist.75 This historical origin, that in some ways contradicts universalism which it inspires, is perhaps one of the principal reasons which explains why the major part of liberal theory ends up considering state borders as the primary sphere of justice, and perhaps for this reason the market continues to play a fundamental role in such theories. Freedom from want, if it has made some small positive openings, even though not definitive, through the egalitarian reformulation of the liberal theory, seems to obtain a categorical autonomy only within national tinguishes between harm and benefit and sets them in opposition to each other is fallacious. It has been pointed out, in fact, that the opposite of ‘harm’ is ‘need’, and that ‘benefit’ is its contrary. “The needed is that, the lack or loss of which is a bad thing, an evil. The needed and the harmful are opposed as contradictories, in the sense that the contradictory of the needed is harmful, and vice versa. The beneficial and the harmful are opposed as contraries. To provide a being with that which is beneficial for it is to promote its welfare. To provide it with that which it needs and to take care that it does not lose the needed is to protect its welfare. Things (acts, events) which are protective of a being’s welfare are good for the being in the sense of ‘good for’ which can also be rendered by ‘useful’, but not in that sense of ‘good for’ which we call ‘beneficial’”, Wright, 1963, 108, see also Cap III, 1]. If this is how matters stand, giving goods to people who need them is not the same as benefiting them by giving them more than others; rather it is to protect their well-being, while not giving them those goods is to harm them. 72 Cf. Arneson, 2001. Arneson points out that the negative argument to the effect that “what an individual can take credit for by way of effort and achievement is intertwined with influences that are entirely beyond her power to shape or control and for which she could in no way claim credit” (ivi, 76), may open two avenues: “Against the claim that well-off people, being responsible for their advantages, or virtuous, should not be deprived of them for the sake of equality, one might either (1) deny that the criteria of responsibility or virtue implicit in this claim are coherent and morally acceptable, or (2) deny that well-off people satisfy these criteria to a greater extent than badly-off people. One might also do both, in varying degrees” (ivi, 79). 73 Cf. Holmes, Sustein, 1999. 74 Cf. Bobbio, 1955, 229. 75 Cf. Bobbio, 1955, 229.

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borders, because negative liberty appears to still be the only one which such theories consider universalizable. But the propelling force with which the new rights assert themselves emphasizes their universal necessity: the mere defence of the public sphere of the individual inhibits the other agents from opposing the action of the one directed to the following of their own public ends,76 requiring simply non-interference, but which appears insufficient if the invisible hand does not regulate the market and equality remains an aim to be achieved. The requirement to rethink the sphere of freedoms finds a further justification observing how positive liberty presents that precondition for the public sphere. As Bobbio wrote, “Liberal ideals and democratic methods gradually became interwoven in such a way that, if it is true that the rights of liberty were from the beginning the necessary condition for the correct application of the rules of the democratic game, and equally true that subsequently the development of democracy became the principal instrument for the defence of the rights of liberty”.77 Democracy presupposes some dimension of equality, and the defence of such dimension, whatever it is, requires at least a minimum level of defence of positive liberty. It is the same protection of negative liberty to require some type of positive intervention. The construction of the liberal society, on the other hand, is really justified owing to its capacity to respond to the challenge to consider individuals as autonomous beings, to regulate their lives through the institution of a heteronomous arrangement, and to be able to preserve such autonomy. In this sense, its task is one of denaturalization, because the socio-political organization serves to correct the natural lottery and the lottery of the market, to cope with the biological and social limits of every member separately considered. In sum, denaturalizing justice entails the institution of a certain relationship between freedom and power. In this regard it should be noted that this relationship is not static but dynamic, and the boundary can be moved by restricting or expanding the one or the other domain. Hence, although a liberal society seeks to maximize freedom with the smallest number of rules possible, and to this end mere abstention is imposed by the negative freedoms, nevertheless the latter still require a certain relationship between law, politics, and the market. Rights are in fact constraints imposed on political action by political action, but at the same time they depend on the political power that “makes them practicable and enables their exercise in social contexts”.78 They therefore require intervention in the market, for a freedom which cannot be exercised is not a freedom.

76 77 78

Cf. Skinner, 1986. Cf. Bobbio, 1985, 31. Viola, 2000, 116.

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However, from the liberal perspective it seems that only negative liberties pertain naturally to the universal domain: it remains a sort of hierarchy among the provisions of liberal rights and, from these will ensue, as if by natural consequence, the provision of these rights or criteria for the construction of a society which is decent for all its members. Thus, Rawls for example, in Political Liberalism,79 acknowledges that ignorance and poverty, and more generally a lack of material means, may prevent persons from exercising their rights and from utilizing the opportunities available to them. Yet this is not viewed as a restriction of their freedom, but as a diminution in the value of their freedom.80 Hence it follows that the problem of compensating less free individuals does not arise, because the value of freedom differs from person to person.81 In my view, poverty restricts freedom and does not merely alter its value. I do not believe that “the freedom that men seek differs according to their social or economic conditions”.82 Freedom is invariant: that which individuals pursue and exercise differently is autonomy, or the use of liberty. Although the two terms indicate distinct phenomena, they present an inseverable relationship so that you do not get one without the other. On the contrary, the distinction between liberty and the value of liberty tends to make them two separable phenomena, not only conceptually, but also to all practical purposes. This distinction derives, I believe, from trust in the economic theory that sought to create a market conceived as a free space (within which liberated individuals could make their choices and be held responsible for them). But this progress toward freedom has not followed what seemed to be its natural path. It seems, therefore, that we must rethink this path and reflect on the preconditions necessary for the constitution of a liberal society and to its limits. In order to exercise liberty it is necessary that they grant those preconditions83 which are absent if you are in poverty. If we move ourselves onto the global plane, if the positivization of freedom from need does not imply in itself neither its guarantee nor its effectiveness, it is important all the same to mark how it has contributed to the elaboration of theoretical proposals directed at “correcting” the internationalistic omission of the liberal theory. As an example, Charles Beitz84 and Thomas W. Pogge85 79

Rawls, 1993, 325–26. Cf. Berlin, 1969, 36–37. 81 In the Rawlsian theory, the principle of difference is offset by the principle whereby the greater advantages of some should work in favour of the less advantaged, so that “The basic structure of society is arranged so that it maximizes the primary goods available to the least advantaged to make use of the equal basic liberties enjoyed by everyone” (1971b, 326). 82 Berlin, 1969, 37. 83 Shue, 1980. 84 Cf. Beitz, 1979. 80

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have urged the adoption of a universalistic perspective. Henry Shue has emphasized the requirement to consider minimum standards of subsistence without which no liberty exists at all. Onora O’Neill proposes to move from the consideration of obligations rather than from that of rights in order to come nearer to the theme of international justice.86 That which unites these positions and highlights the novelty is the consideration of the global community, the assumption that ethics should not stop at the borders, be they national, ethnic, or communitarian. In this way liberal ethics lays claim to its original universalism, contained in the same affirmation of the rights of man, and to correct the limitation to have considered state borders as the primary sphere of justice. As O’Neill writes, the borders are made more “porous” and globalization has involved markets, culture, and legal forms, fostering the emergence of new international actors of a non-state nature.87 But, above all, it is necessary to keep in mind that ethical norms in the sense of critical morality, are conceptually universal, or alternatively they are positive morality, culture, tradition, or custom. If that which keeps the liberal theories from extending the principles of justice to the global plane is the anticipation of practical difficulties, it is necessary to note that the difficulty of implementation has not saved even the Western societies. Growing world inequality is not limited to a few areas of the world, but involves even the so-called rich countries. The conflict which generates poverty is not only international, but also intranational. The defence of a restricted notion of liberty combined with the free market results today in hypocrisy, seeing that this turns into leaving a free hand to international institutions and powers that intervene in the market anyway. In a globalized world in which the interdependence among individuals is an inescapable matter of fact, adopting the usual statal and individualistic approach to the issues of freedom and poverty is not enough and it is anachronistic, it does lose sense of the whole liberal project. We must acknowledge that certain preconditions for the exercise of freedoms have to be fulfilled; preconditions that represent fundamental rights that can only be satisfied in a social and global framework. It is about modifying the balancing point upon which the liberal project is based. Furthermore, the idea that prompted the decision to leave the state of nature by creating a political organization indicates that human beings recognize each other as members of a community and that implies that these human beings do

85

Cf. Pogge, 1989. Cf. O’Neill, 2000, 136. 87 Cf., within the abundant literature, as an example, Ferrarese, 2000; especially on the European Union see Ladeur, 1997. 86

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not consider themselves to be monads in the world. This is not to embrace a strongly egalitarian view of society: poverty does not mean inequality. Nevertheless, although neither of these two concepts subsumes the other, they are interrelated. A society that permits the extreme inequality of poverty to exist cannot be a liberal society, because poverty is a condition that impedes freedom:88 it is a restriction or an obstacle to the exercise of freedom. Poverty turns people into slaves or servants, thereby producing a situation of subservience, not of liberal freedom. To limit the application of some difference principle to the local level, while maintaining international relations and professing the execution of contracts from the other side of the world, is a hypocritical move, only a way to look after one’s own garden while allowing weeds to grow up all around you. But more than being hypocritical, this proposal is without a future once one observes the process of globalization: how long can that garden last if all around weeds continue to grow? How long will the weeds employ to “devour” that garden? How much will it cost to defend that garden? Since there is nothing in the world that determines a priori what should be the fundamental principles on which a liberal society is based, if one starts from the interests of individuals to buttress the legal provisions that grant rights, one must accept that individuals have a fundamental interest in having a decent life, and therefore in having autonomy and well-being.89 It is necessary to recast the relationships among politics, constitution, and the guaranteeing of rights, which should not be seen as only antithetical but also as complementary. Liberal theory seeks to construct a society where the largest number of life-plans are freely pursuable by its members within a rigid and restricted framework of rules. Accordingly, rights are legal constructs which may assume different forms, and the choice of the principles that underpin society depends on the importance accorded to certain values. If individual freedom is a value of central importance, then comparison must be made among the levels of freedom enjoyed by all: not only is individual freedom a fundamental value in our society, it is also an inseparable social product of our institutions, which should consequently be designed for this purpose. The goal of reducing poverty can only be pursued collectively: this is a problem of public responsibility. Indeed, as Amrtya Sen writes, “individual conception of justice and property, which influence the specific uses that individuals make of their freedom, depend on social associations – particularly on the interactive formation of public perceptions and on collaborative comprehension of 88 89

Cf. Diciotti, 2004. C. Fabre, 2000, 87 ff.

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problems and remedies. The analysis and assessment of public policies have to be sensitive to these diverse connections”.90 The aim to reduce poverty cannot but be collective, a problem of international public responsibility, a problem of global justice. However, it should be borne in mind that once the political state has been created, where the members of society are no longer individual players but now belong to a team,91 it is then necessary to reconsider the limits. If this does not come about, there is a risk that each player (individual, state, or organization) will look only for reasons that bear on him or her, and the players will overlook reasons that bear on them all. But society is to some extent a collective global enterprise which must be considered as a whole92 if certain results are to be achieved: practical rationality serves precisely to determine the limits and possibilities of action, the terms of cause and effect. To obtain the desired outcome, enjoying the freedom granted, it requires guaranteeing the conditions for its exercise, and although the latter entail the recognition and effectiveness of a set of rights, one may say by way of a slogan that it is necessary to recognize and guarantee the right to be free from poverty. The theoretical means to this end can be different, but what emerges as a necessity is the universalization of the positive sphere of liberties: if the aim is to denaturalize justice and to construct a society with justified rules, why accept as legitimate the present level of denaturalization? Any theory can be thought of as a method for a purpose; the liberal theory represents a method for the purpose of obtaining a liberal society. Theory as method must, however, be adequate to the purpose, at least in order to be a good theory. Reference Arneson, R. (2001), Luck and Equality, Proceedings of the Aristotelian Society, Supp. Vol. LXXV, part II, 73–90. Barberis, M. (2000), Libertà, liberalismo, costituzionalismo, Teoria Politica, 3. Baroncelli, F./Assereto, G. (eds.) (1983), Sulla povertà: idee, leggi, progetti nell’Europa moderna, Herodote: Genoa/Ivrea. Beitz, C. (1979), Political Theory and International Relations, Princeton: Princeton University Press. Berlin, I. (1969), Two Concepts of Liberty, in D. Miller (ed.), Liberty, Oxford: Oxford University Press, 1991, 33–57. 90 91 92

Sen, 1999, 31. Sudgen, 1993, 85. Cf. Searle, 1990, especially 407–8.

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Bobbio, N. (1955), Della libertà dei moderni comparata a quella dei posteri, in N. Bobbio, Teoria generale della politica, ed. by M. Bovero, Torino: Einaudi, 1999, 217–247. – (1985), L’incontro tra liberalismo e democrazia, in Id., Liberalismo e democrazia, Milano: Franco Angeli. – (1989), Hobbes, Torino: Einaudi. Brodsky, G./Day, S. (2001), Poverty is a Human Rights Violation, http://www. povnet.org/human rights/Paper%20v3.pdf. Celano, B. (2000), La denaturalizzazione della giustizia, Ragion pratica, 14, 81–113. Chua, A. (2003), A. World On Fire: How Exporting Free Market Democracy Breeds Ethnic Hatred and Global Instability, New York, Doubleday; it. trans., L’età dell’odio. Esportare democrazia e libero mercato genera conflitti etnici?, Carocci, Roma, 2004, quotation from Italian translation. Cohen, G. A. (1989), On the Currency of Egalitarian Justice, Ethics, 99, 4, 906–44. De Lora, P. (2003), Justicia para los animales. La ética más allá de la Humanidad, Madrid: Alianza editorial. Diciotti, E. (2004), Libertà individuale e mercato, Teoria politica, 1. Dworkin, R. (2000), Sovereign Virtue: the Theory and Practice of Equality, Cambridge: Harvard University Press. Elliott, L./Denny, C. (2002), Top 1% earn as much as the poorest 57% , in “Guardian”, Friday January 18, http://www.guardian.co.uk/Archive/Article/0%2C4273%/ 2C4337872%2C00.html. Fabre, C. (2000), Social Rights Under the Constitution. Government and the Decent Life, Oxford: Clarendon Press. Ferrarese, M. R. (2000), Le istituzioni della globalizzazione: diritto e diritti nella società transnazionale, Bologna: Il Mulino. Gargarella, R. (2000), Free Market and Collective Unfreedom, Revista Jurídica de la Universidad de Palermo (Buenos Aires), 125–155. Garzón Valdés, E. (1993), Los deberes positivos generales y su fundamentación, in Id., Derecho, Etica y Politica, Madrid: Centro de Estudios Constitucionales, 339– 60. – (2003), Tolleranza, responsabilità e stato di diritto, Bologna: Il Mulino. Gray, J. (1998), False Dawn. The Delusions of Global Capitalism, London: Granta Publications. Hasnas, J. (2002), Equal Opportunity, Affirmative Action, and the Anti-Discrimination Principle: the Philosophical Basis for the Legal Prohibition of Discrimination, Fordham Law Review, nº 71, 423 ff. Hayek, F. A. (1978), New Studies in Philosophy, Politics, Economics and the History of Ideas, London: Routledge & Kegan Paul, paperback 1985. – (1982), Law, Legislation and Liberty, London: Routledge & Kegan Paul.

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Holmes, S./Sustein, C. (1999), The Cost of Rights: Why Liberty Depends on Taxes, New York/London: W. W. Norton. Hume, D. (1739), A Treatise of Human Nature (1739–40), Book III, Part III, Oxford: Clarendon Press, second edition 1978, V reprinted 1987. Hurley, S. (2001), Luck and Equality, Proceedings of the Aristotelian Society, Supp. Vol. LXXV, 2001, part. I, 51–72, http://www.warwick.ac.uk/staff/S.L.Hurley/ papers/le.pdf. Kant, I. (1785), Foundations of the Metaphysics of Morals (1785), it. trans., Fondazione della metafisica dei costumi, Milano: Rusconi, 1982–1988, quotations are from the Italian translation. – (1797), Metaphysics of Morals (1797–98), it. trans., Metafisica dei costumi, Bari: Laterza, 1970, quotations are from the Italian translation. Kay, J. (2002), A theory of the social Market, in http://www.johnkay.com/print/184. html. Krishnamurthy, R./Ratnaparkhi, M. (2002), Micro-Finance in the new economy – India’s Experience, http://www.statistics.gov.uk/IAOSlondon2002/contributed_pa pers/downloads/CP_Krishnamurthy.doc. Kymlicka, W. (1990), Contemporary Political Philosophy. An Introduction, Oxford: Clarendon Press. Ladeur, K. H. (1997), Toward a Legal Theory of Supranationality – The Viability of the Network Concept, European Law Journal, vol. 3, nº. 1, 33–54. MacCallum Jr., G. C. (1991), Negative and Positive Freedom, in D. Miller (ed.), Liberty, Oxford: Oxford University Press, 100–122. MacPherson, C. B. (1975), The Political Theory of Possessive Individualism: Hobbes to Locke, Oxford: Oxford University Press, it. trans., Libertà e proprietà alle origini del pensiero borghese: la teoria dell’individualismo possessivo da Hobbes a Locke, Ristampa, Milano: ISEDI, 1978, quotation from the Italian translation. O’Neill, O. (2000), Bounds of Justice, Cambridge: Cambridge University Press. Parijs, P. van (1995), Real Freedom for All: What (if anything) Can Justify Capitalism?, Oxford: Clarendon Press. Pogge, T. W. (1989), Realizing Rawls, Ithaca: Cornell University Press. – (2002), Moral Universalism and Global Economic Justice, Politics, Philosophy & Economics, London, Volume 01, Issue 01, Publication Date: 02/2002, http://www. sagepub.co.uk/JournalIssue.aspx ?pid=105738&jiid=510372. Rawls, J. (1971a), A Theory of Justice, Oxford: Clarendon Press. – (1971b), A Theory of Justice, Oxford: Oxford University Press, 1999–2000. – (1993), Political Liberalism, New York: Columbia University Press. – (1999), The law of peoples: with “The idea of public reason revisited”, Cambridge: Harvard University Press.

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– (2001), Justice as Fairness: A restatement, Cambridge, Mass./London: Belknap Press. Ripoli, M. (1990), La coercizione nella dottrina etico-giuridica di John Stuart Mill, Genova: Ecig. – (1997), Il cambiamento possibile: politica e società in Inghilterra tra Sette e Ottocento, 2º ed., Genova: Ecig. – (2001), Itinerari della felicità: la filosofia giuspolitica di Jeremy Bentham, James Mill, John Stuart Mill, Torino: Giappichelli. Ruiz Miguel, A. (2002), Una filosofía del derecho en modelos históricos: de la antigüedad a los inicios de constitucionalismo, Madrid: Trotta. Schifferes, S. (2002), World inequality rises, BBC News Online’s, Thursday, 17 January, http://news.bbc.co.uk/1/hi/business/1763410.stm. Searle, J. (1990), Collective Intentions, in P. Cohen/J. Morgan/M. Pollack (eds.), Intentions in Communication, 2º ed., Cambridge: MIT Press, 1992. Sen, A. (1981), Poverty and Famines. An Essay on Entitlement and Deprivation, Oxford: Clarendon Press, 1988. – (1990), Individual Freedom as a Social Commitment, in The New York Review of Books, June 14, 49–54. – (1999), Development as freedom, Oxford: Oxford University Press. Shue, H. (1980), Basic rights: subsistence, affluence, and U. S. foreign policy, 2 ed., Princeton: Princeton University Press, 1996. Skinner, Q. (1986), The Paradoxes of Political Liberty, in D. Miller (ed.), Liberty, Oxford: Oxford University Press, 1991, 183–205. Sudgen, R. (1993), Thinking as a Team: Towards an Explanation of Nonselfish Behaviour, in E. Frankel Paul/F. D. Miller Jr./J. Paul (eds.), Altruism, Cambridge: Cambridge University Press, 69–89. Tarello, G. (1979), Il diritto e la funzione di distribuzione dei beni, in S. Castignone/ R. Guastini/G. Tarello, Introduzione teorica allo studio del diritto: lezioni, Genova: Ecig, 193–209. Viola, F. (2000), L’etica dello sviluppo tra diritti di libertà e diritti sociali, Ragion pratica, 14, 115–27. Wade, R. (2001a), The Rising Inequality of World Income Distribution, Finance and Development, 38, no. 4. – (2001b), Winners and Losers: The Global Distribution of Income is Becoming More Unequal: That Should Be a Matter of Greater Concern Than It Is, Economist, 26 April, http://www.globalpolicy.org/socecon/inequal/2001/0426winlose. htm. Wright, G. H. von (1963), The Varieties of Goodness, Bristol: Thoemmes Press, 1996.

Poverty and Humanity: Individual Duties and the Moral Point of View Marisa Iglesias Vila1 It is a fact that millions of people live in severe poverty and die each year from starvation. Forty-six percent of humankind lives below the US$ 2-a-day poverty line, and over 1,214 million people live below the $ 1-a-day poverty line.2 About 18 million extremely poor people die each year from poverty-related causes (one-third of all human deaths). At the same time, it is also a fact that poverty is not unavoidable in a world where the global production of food is twice the amount that would be necessary to feed the total population. The cost of eradicating extreme starvation is less than 1 percent of the global income, and the cost of providing universal access to basic social services and transfers to alleviate absolute poverty would cost $ 80 billion, less than the wealth of the seven richest men in the world.3 I guess that for the majority of us these data are devastating. Certainly, statistics about destitution are always moving, and the normal reaction to them is of regret and concern.4 Nevertheless, the reality is that income differences between the most affluent population and the poorest are actually increasing, rather than diminishing, and that all this is taking place despite our impressive technological progress and the success of human rights discourse in Western democracies.5 Perhaps what explains our global collective inaction concerning this problem is not mere indifference to others’ suffering, but rather the widespread belief that we, people from affluent countries, do not really have a moral duty to help 1 I am especially grateful for comments on earlier versions of this article to Silvina Álvarez, Roberto Gargarella, and Neus Torbisco. 2 It is also important to highlight that this 46 percent of the population has only 1.2 percent of the global income. I am using here Pogge’s summary (2002, 97) of data coming from the World Bank Reports 2000/2001 and 2002. 3 According to the United States Development Program, the net wealth of the 10 richest billionaires is $ 133 billion, 1.5 times more than the total national income of the least developed countries. See the UNDP statistics on poverty in www.undp.org. 4 In this paper I will use the words “poverty” and “destitution” indifferently. 5 See Pogge (2002a, 3, 97–100). As Joshua Cohen (1994, 2) also emphasizes, over the last three decades the income disparity between the richest and poorest quintiles in the population of the world has doubled.

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those who are dying of hunger far from us. We may certainly feel compelled to engage in charitable acts, and we do deeply value people making this kind of effort, but the inaction toward the starving population is not perceived as a moral fault. Global-scale problems, we could say, are not a real concern in our common-sense morality because, as Samuel Scheffler emphasizes, commonsense morality and the image of human social life are “defined primarily by small-scale personal relations among independent individual agents.”6 Our common-sense morality appears to be very comfortable focusing on the narrow scale of our everyday relationships where we live in complete isolation from severe poverty, although we do not ignore that it exists.7 Does this practical apathy toward the poorest people show that our common-sense morality is immoral? An easy answer would be “yes;” this answer being the product of endorsing, for example, the simple ethical principle that Peter Singer has repeatedly defended. Assuming that death from lack of food and shelter is bad, “if it is in our power to prevent something bad from happening, without thereby sacrificing anything of comparable moral importance, we ought morally to do it.”8 According to Singer, if we take this moral standard seriously, or even a more moderate version of it saying that “we should prevent bad occurrences unless, to do so, we had to sacrifice something morally significant,” it is obvious that we must contribute in an effective way to famine relief.9 However simple this question may appear at first sight, the recognition of such a duty has become a rather complex philosophical problem, especially for those liberal theories of justice which are willing to accept neither Singer’s wellknown utilitarianism nor a firm universal egalitarianism. An example of this complexity is the renewed debate concerning the possibility of global justice and the place borders and communal ties should have in delimiting our moral duties. In the context of the alleged tension between the world’s opposing tendencies to global integration and to ethno-cultural fragmentation, the apparent easiness of the question of poverty eradication risks vanishing amidst considerations that are more political and prudential than ethical. In this paper, I will argue that the question of famine relief should be faced just from the impartial view that is at the core of any moral standpoint and hence disregard as irrelevant any prudential or biased considerations that we might adduce to restrict our involvement with the starving population. My aim is to show that only from an impartial point of view are we able to grasp how 6

Scheffler (1995, 229). See also Jonas (1984, 4–5 and 123–130). Pogge (2002a, 4) correctly points out that “we live in extreme isolation from severe poverty. We do not know people scarred by the experience of losing a child of hunger, diarrhea, or measles, do not know anyone earning less than $ 10 for a 72-hour web of hard, monotonous labor.” 8 Singer (1985, 249; 1993, 230–231). 9 See Singer (1985, 259). 7

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unproblematic it would be for reasonable agents to identify what should be done in this context. In order to develop this argument, I proceed first by analyzing three different frameworks from which a moral duty toward poor people can be justified: causal responsibility, distributive justice, and humanity. Although we could account for this duty from any of these frameworks, I devote my paper to justifying that the perspective of humanity is the best way to give suitable moral answers to the problem of famine relief. Principles of humanity are usually taken as secondary ethical requirements. My aim is to show that this is a mistaken view. I argue that accepting duties of humanity is not merely thinking that, to some limited extent, we are morally obliged to be good Samaritans. The relevance of these standards becomes clear when we realize that principles of humanity flow from the very ideal of impartiality understood as a positive claim. The challenge that standards of humanity face concerns their scope and feasibility. In the rest of this paper, I explore the main philosophical difficulties that the justification of a general positive duty of altruism should overcome, especially, the moral relevance of the first person point of view, and the compatibility between the recognition of general and special positives duties. As I argue, a duty of altruism should not be so demanding as to the extent of eliminating the very separateness between persons; at the same time, it should be feasible enough to avoid falling into Fishkin’s famous slippery slope, and yet demanding enough to be able to make a difference in the eradication of extreme scarcity. 1. Different arguments have been offered to support the claim that we have a duty to contribute to eradicate severe poverty. In particular (and leaving now aside Singer’s view), we could draw attention to three lines of reasoning that come from different trends within ethical liberalism. The first addresses questions of causal responsibility and compensatory justice, the second turns to issues of distributive justice, and the third refers to what our sense of humanity should require from us. According to the first approach, the duty of people from wealthy countries to help those who are dying of hunger is a derivation of our general negative duty not to harm others. This position challenges one of the possible ways to justify our passivity toward extreme poverty, namely, the view stating that we do not have caused destitution, or which conceives famines as natural disasters that are nobody’s fault. This is the empirical setting that a libertarian needs to refuse any duty to help the starving population. If our wealth has been obtained in a legitimate way and we are not causing, or contributing to cause, global poverty, then we do not have a moral duty to assist the poor.10 10

This is Nozick’s well-known position (1974, chapter 3).

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Those who defend that even a libertarian should accept moral responsibilities toward the poorest address their arguments to the question of the causal link. This is, for example, the position held by Onora O’Neill in her classical article “Lifeboat Earth,” and it is Pogge’s approach as well.11 O’Neill, like Pogge, starts from the platitude that all human beings have the moral right not to be harmed or killed. According to this right, our concern should be to avoid responsibility for unjustifiable famine deaths.12 It could appear, at first sight, that a careful distinction between killing and letting die could be useful to discharge us from any responsibility. Nonetheless, O’Neill provides several examples to show how it could still be maintained that we are killing through economic activities. One of the clearest examples is perhaps what she calls the “commodity pricing case.”13 Since underdeveloped countries depend drastically on the price level of a few commodities, sharp drops in the world price for them can be lethal for these countries. As O’Neill stresses, where the dropping of prices is “the result of action by investors, brokers, or governmental agencies, these persons and bodies are choosing policies which will kill some people.”14 Pogge’s conclusions are very similar. He declares himself a libertarian on this point and believes that justice only contemplates negative duties and that, consequently, there is a significant moral difference between harming and failing to avoid harm.15 However, he tries to show that destitution is a problem of harms that, directly or indirectly, our global economy and we produce. A simple right not to be harmed (or the correlative duty not to harm) is therefore enough to justify that we have a clear moral responsibility toward the poor.16 In his opinion, it is this responsibility based on causal grounds that requires us to engage in effective institutional reforms able to affect our global economic interactions in a way beneficial to the starving population.17 This line of reasoning may be attractive because, as I have mentioned, it is able to justify moral duties concerning poverty even when we endorse a liber11

O’Neill (1985, 262–281), Pogge (2002a). O’Neill (1985, 262). 13 O’Neill (1985, 273–275). 14 O’Neill (1985, 273). 15 Pogge (2002a, 13, 66–67). See also Pogge (2002b, 89). 16 Pogge (2002a, 23) refuses to approach the problem of poverty as a mere question of helping those who are suffering. In his words, “the poor do need help, of course. Nevertheless, they need help only because of the terrible injustices they are being subjected to. We should not, then, think of our individual donations . . . as helping the poor, but as protecting them from the effects of global rules whose injustice benefits us and is our responsibility.” I will come back to this question in the next section. 17 Pogge’s idea (2002, 110–112 and chapter 8) of the Global Resources Dividend (that constrains property rights on natural resources) and his support for an idea like the Tobin Tax are addressed to this end. 12

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tarian morals. In this sense, to confer axiological priority to the principle of liberty, and to admit only narrow constraints on it as a matter of justice, is compatible with the recognition of moral responsibilities in this global problem. However, in my view, this approach is not attractive enough to take it as the sole basis of our moral duties in the context of global poverty. On the one hand, this would result in a very restrictive, insufficiently demanding conception of our responsibilities as human beings. As I will stress later on, the very idea of the moral point of view as an impartial view involves a certain degree of concern toward the needs and sufferings of others. The extent of this concern is a question open to argument and controversy. However, there is a minimal involvement that seems to be conceptually necessary in the moral discourse, and this involvement will take the form of a positive duty of mutual aid, however weak this duty may be.18 Additionally, as Rawls correctly stresses, the very picture of a society in which no one had the slightest desire to help other people “would express an indifference if not disdain for human beings that would make a sense of our own worth impossible.”19 On the other hand, the fact that we are living in an extremely complex and interconnected world, where causal chains are really difficult to be followed and clarified, advises us to cast doubt on reducing the moral duty to help to the causal argument. Since causality cannot be legitimately used as a general argument on responsibility disconnected from an empirical setting (it rather requires to be proved case by case), we can find many cases where there will be no way to prove our causal contribution to the situation of starvation. In those cases, this line of reasoning leads us to conclude that there is no moral duty to recognize and, consequently, no moral objection in leaving the starving population to their own fate. This is a very unattractive ethical conclusion. Finally, to assume such logic can be dangerous from a motivational point of view. Since causal chains leading to death-producing activities can be extremely complex, to reduce moral duties to causality can stimulate our natural tendency to choose those descriptions of facts that are more favorable to us. This has been a very familiar trend in the international discourse of Western democracies, which often emphasize the association between severe poverty and the internal political problems of underdeveloped countries. In my view, the fact that we could be encouraging, rather than neutralizing, this dangerous tendency is a powerful argument to think of alternative lines of reasoning.

18 For that reason, Rawls, for example, (1971, 114–117, 339) includes the duty of mutual aid (“the duty of helping another when he is in need or jeopardy, provided that one can do so without excessive risk or loss to oneself”) in the list of individual natural duties. 19 Rawls (1971, 339).

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2. A second way of approaching our responsibilities in the context of destitution is within the framework of distributive justice. If we assume that the promotion of a certain degree of equality and redistribution is a requirement of justice, we have strong moral reasons to accept a duty to help those who are living in a situation of starvation. In this way, we do not need to endorse any controversial, strong egalitarian morals to recognize responsibilities toward people dying from hunger. In principle, to embrace what can be called a “minimal egalitarian view” in the form, say, of the Rawlsian difference principle would suffice to take this case as an easy case of a moral duty to help.20 Nevertheless, when our redistributive concern with regard to poverty applies to the global scale, and so it goes beyond domestic situations of inequality, the moral justification of a minimal egalitarianism turns out to be very complex. It is true that, since the poorest are so poor, it really would not be demanding in terms of liberty to accept a difference principle at a global scale. When the global worst-situated are living below the $ 1-a-day poverty line, and when the cost of eradicating extreme starvation is less than 1 percent of global income, the population of rich countries would not be required to make significant sacrifices to improve the situation of the least advantaged. The problem is that even though we could admit that a global difference principle is not very demanding, we tend to be scarcely motivated to engage in any minimal redistributive enterprise beyond the borders of our communities.21

20

See Rawls (1971, 60–65, 302–303). A global difference principle would be much less demanding than the same principle applied inside the borders of a wealthy society. Using the idea of diminishing marginal utility, we could say, for example, that the relevance of one kilo of rice changes depending on who will need it and her situation. As people become less poor one kilo of rice will lose importance for their survival. On the contrary, when people become poorer one kilo of rice acquires more significance. Since in affluent countries the worst-situated are generally rich compared to the worst-situated in poor countries, the resources needed to significantly benefit the former will be much more than those needed to benefit the same amount of people when they are the globally worse-situated. Therefore, the same amount of resources coming from the best-situated will have radically different effects depending on who receives them. In Europe, one kilo of rice per day per family, being a transfer of resources coming from the best-situated, would be totally unacceptable as a way of respecting the difference principle. For people living below the poverty line, this transfer would make a radical difference. See Singer (1993, 24–25), Nagel (1991, 65, 68), Fishkin (1982, 164–165), Miller (1999a, 224). However, we could also say that since the difference principle is a minimal egalitarian standard that only requires improving the situation of the least advantaged, and since the differences between global richer and poorer are so huge, respecting this principle does not necessarily assure a decent level of worldwide redistribution. To improve the situation of the 1,214 millions of people living below the $ 1-aday poverty line and to make them living, say, below the $ 1.50-a-day poverty line is an obvious case of improving their situation and respecting the difference principle. This improvement, nonetheless, should not be satisfactory enough even for a minimal egalitarianism. For that reason, if our goal in applying a difference principle is not to 21

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Is this general reluctance to global redistribution ethically justified? Scholars such as Charles Beitz and Brian Barry have challenged our lack of motivation by arguing that we have strong moral reasons to accept global redistributive standards.22 However, their positions are clearly different. Others, like John Rawls and David Miller, give moral content to this lack of motivation and defend that we should confine distributive principles within the borders of each nation-state.23 Let us pay attention to the main arguments that justify these rather diverging views. Beitz suggests that the Rawlsian difference principle can be applied at a global scale in the form of a resource redistribution principle. In his own terms, this standard would provide “assurance to resource-poor nations that their adverse fate will not prevent them from realizing economic conditions sufficient to support just social institutions and to protect human rights.”24 Beitz, following Rawls, acknowledges that the feasibility of his redistributive principle is subject to two main constraints. Firstly, our social obligations largely emerge in cooperative contexts and, more precisely, in self-sufficient cooperative schemes as nation-states are. Secondly, redistribution is morally required only when the situation of the least advantaged derives from circumstances beyond their control and that are, then, morally irrelevant. He argues, however, that these constraints are met in the actual international context. On the one hand, economic globalization produces a context of clear interdependence and cooperation that goes beyond the borders of each state. As a result, national boundaries are losing moral significance as the only source of social obligations. The international society also constitutes the global cooperative scheme that we need to justify redistributive standards.25 On the other hand, Beitz emphasizes, this system of interdependence “imposes burdens on poor and economically weak countries that they cannot practically avoid . . . It involves patterns of relationships which are largely nonvoluntary from the point of view of the worse-off participants, and which produces benefits for some while imposing burdens on others.”26 The situation of the global least advantaged, consequently, as a product of natural chance and social contingency, justifies redistributive compensation.27

engage in a symbolic redistribution but to diminish in a significant way a clear situation of inequality, we should claim for more demanding transfers. 22 See, for example, Barry (1982), Beitz (1985). 23 See, for example, Rawls (1999, 538, 558–560), Miller (1999b). 24 Beitz (1985, 293). 25 Beitz (1985, 297–298). In a similar sense, Goodin (2003) argues that in a globalized and interdependent world principles of justice should have a global scale. See also Young (2000, 246–250). 26 Beitz (1985, 296). 27 Beitz (1985, 301).

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Although Beitz’s proposal is very appealing, it has been extensively criticized. Brian Barry, for example, argues that our international framework cannot be seen as a single cooperative scheme even in a context of strong economic interactions. In his view, in the absence of this scheme, global redistribution would not be advantageous to rich as well as to poor societies.28 Barry thinks that the moral basis of a global distributive justice should better be found in the idea of equal rights to natural resources. Since the actual distribution of natural resources and the power to control them are arbitrary from a moral perspective, the population of those countries lacking the control of natural resources has the right to have their share in enjoying them.29 Also objecting to Beitz’s view that we live in a global cooperative structure, David Miller argues that the international framework lacks three basic conditions that make the application of distributive justice feasible: (a) the presence of bonds of solidarity strong enough to override cultural and religious differences, (b) a range of shared understandings on what makes for a just claim concerning resources, and (c) the sufficient assurance that distribution principles will motivate everybody in a similar way.30 In Miller’s view, without these features “comparative principles of justice” have no force.31 Rawls himself rejects the possibility of a global difference principle mainly because, unlike Beitz, he does not perceive the situation of the global least advantaged as a mere product of adverse contingent fate and natural change.32 28 Barry (1982, 232–233). Although I will not enter into this debate, it is important to emphasize that Barry focuses on global economic interaction and international trade. We could say, however, that present globalization cannot be reduced to economic matters. In a clearly interdependent world, an international cooperative scheme is necessary in many other aspects of social life where nation-states are not completely self-sufficient and where cooperation is mutually beneficial (environment, communications, culture, language, human rights, etc.). If this is so, Barry’s objection is weaker than it appears to be at first sight. 29 Barry (1982, 235, 239). 30 Miller (1999a, 18–19). See also Miller (1999b, 188–197). For an extensive criticism to Miller’s restrictive view on the kind of association that makes the application of distributive justice possible, see Caney (2003, 290–296). 31 Following Joel Feinberg (1974), Miller (1999a, 4–5, 19, 220–221; 1998, 171, 180) distinguishes between comparative and noncomparative principles of justice. Noncomparative principles justify individual rights and entitlements without taking into account the situation of other people and their entitlements. On the contrary, comparative principles, as it is the case of equality, justify individual rights and entitlements by means of comparing the situation and the advantages or disadvantages of different groups of individuals. In his view, while noncomparative justice can be globally applied, comparative principles of justice require “persons who are connected together in some way, for instance by belonging to the same community” (Miller, 1998, 171). 32 Although, in my view, the main argument that Rawls (1999, 558) uses here is the question of the role governments play in producing internal famines, he adduces two more general arguments to reduce distributive principles to domestic justice.

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According to Rawls, “person’s adverse fate is more often to be born into a distorted and corrupt political culture than into a country lacking resources.”33 For this reason, he argues that the basis of our duties of assistance here is linked to the protection of human rights rather than to any liberal principle of distributive justice.34 One can learn from this debate that an egalitarian justification of duties toward poor people is far from being easy. Certainly, the view of an international society as a kind of association might be maintained for the purposes of redistribution only to the extent that the traditional conception of a cooperative structure that focuses on the idea of nation-state is made flexible. Although many scholars today claim that the nation-state model is in crisis, mainly because there is a tendency to both more localism and more internationalism, the moral background of most theories of social justice continues to situate distributive justice within the boundaries of politically organized communities.35 Perhaps, as Simon Caney proposes, we could take a broader view of an association attending to causal interdependence rather than to communal ties as a criterion of redistribution. This would make Beitz’s position more convincing.36 However, to pursue this strategy further to justify moral duties toward starving strangers would demand to challenge the very political structure of the societies we live in, something that is completely beyond the aims of this paper. An additional difficulty is the role national governments play in the situation of scarcity within their populations. Although destitution is a product of multiple factors acting together, it is clear that severe poverty is not something like a natural disaster, and, in this sense, it is not a bare matter of fate or natural chance. Corrupt political elites and mistaken policies have an important share Firstly, distributive justice “belongs to the ideal theory for a democratic society and it is not framed for our present purposes.” Secondly, and he stresses that this is a more serious argument, not all societies in the society of peoples would accept the application of liberal principles of distributive justice. 33 Rawls (1999, 559) follows here Amartya Sen’s important study on the causes of poverty. See also Miller (1999b, 193–197). 34 Rawls (1999, 559–560). This is Miller’s view as well. According to Miller (1999b, 194–197) the situation of poor people cannot be detached from the policies, choices, and internal functioning of their political communities and governments. When inequality is the product of corrupt and deficient governments, as it is normally the case for this author, global redistribution cannot be justified in terms of justice. As we will see, Miller (199b, 198–209), however, emphasizes that there are other bases to justify a duty of assistance to the starving population: basic rights and the avoidance of exploitation. 35 See, for example, Miller (1999a, 5). 36 His “causal interdependence” conception of an association defends that distributive standards apply “to people who causally affect and are affected by others or who are subject to the same economic forces” (Caney, 2003, 295). As we will see in the next section, to object to the claim that we should give priority to our compatriots over foreigners could also support an extension of the difference principle.

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in causing famines. Additionally, internal political corruption in poor countries will usually obstruct any attempt at effective redistribution. Yet, we could argue that Rawls puts too much weight on the political factor. This is because he strongly focuses on nation-states as the moral subjects that interact in the global context and he is basically thinking of the difference principle in the context of institutional design.37 Adapting Rawls’s theory, we could take his distributive principle as a standard that applies directly to individuals and their conduct, and that is addressed to benefit those who are the worst situated and who have not voluntarily provoked their situation.38 From this perspective, and assuming now for the sake of the argument that there is a worldwide cooperative scheme, the global least advantaged might deserve the benefits of a difference principle despite living in countries with corrupt governments. To be born and to live in these societies is a matter of chance, and the activity of their governments is normally beyond the control of those that are worse-off. For this reason, the strongest objection to the application of global redistributive standards is the idea that we lack an international cooperative structure, an objection whose force is relative taking into account our political, social, and economic worldwide integration.39 37

See Rawls (1999, 535–536, 558). See Murphy (1999b). According to this reading of Rawls’s proposal, political institutions (as mediating institutions) would still be the main instruments to apply the difference principle, and the basic framework of this principle would be institutional justice. However, from this view, this is a principle addressed to compare the situation between individuals, and it aims at diminishing clear inequalities between them by means of imposing on the best-situated the burden of redistribution. At the global scale, the institutional framework is obviously more complex. As more institutions are involved in the implementation of the difference principle, it may become more difficult to obtain effective redistributions. However, the logic of the principle continues to be the same: to compare the conditions of the global best-situated individuals with those that are least advantaged. Perhaps we can say that this principle has sense in a strong associative context only, but this is something very different than saying that in a context of bad institutions (that is to say, in a context where there are bad instruments of implementation) the basic logic of the principle should change. The idea of Rawls is that, in a context of bad institutions, what we should require in terms of justice is the improvement of those institutions. This is true. However, in my view, this does not affect our responsibilities nor the validity of the difference principle in those situations insofar we understand it from the perspective suggested above. See, in a similar sense, Cohen (2000, chap. 10). 39 Additionally, the moral role of borders as a limit of distributive justice has always been rather obscure. An easy objection is that those scholars trying to justify the morality of confining social justice to the boundaries of nation-states are making an intellectual effort to justify our modus vivendi and, then, to give normative value to a simple situation of fact and political reality that is morally irrelevant. I strongly believe that this is true. However, even those that, as Miller does, link the idea of distributive justice with the conditions of a cooperative scheme cannot justify that this cooperative scheme has to coincide with our actual political framework. None of the three conditions Miller states necessarily requires that this scheme of cooperation be confined within the borders of nation-sates or within any other similar kind of bor38

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Nevertheless, I think that we do not need a logic of redistribution to justify a moral duty to help extremely poor people and, in my view, distributive justice is not the best way of approaching the problem of destitution. Let us begin with a very general reflection on this problem. Extreme poverty should not be a moral concern merely because it exemplifies a situation of inequality of resources between persons that we must not accept or justify. We do not require a comparative perspective to see destitution as an evil to be avoided. Its moral significance can be clearly captured using McNamara’s definition of absolute poverty: “Absolute poverty is a condition of life so characterized by malnutrition, illiteracy, disease, squalid surroundings, high infant mortality and low life expectancy as to be beneath any reasonable definition of human decency.”40 On the basis of this normative definition, we could simply consider that starvation is something really evil and use Singer’s easy principle to justify a moral duty. But we can go further and see extreme poverty as a question of human decency and dignity, a problem of lacking the minimal conditions of agency, something unrelated to the relative situation of others. If we adopt this view, we can separate the problem of inequality from that of poverty. Destitution is a much more basic phenomenon than inequality because it affects human basic capabilities. As Joshua Cohen observes following Sen’s notion of capabilities for functioning, we should distinguish poverty from inequality and address them in different ways because situations of clear destitution are not merely related to low resources or low utility, but, rather, to situations where a person’s basic capabilities do not reach a minimal adequate level.41 For this reason, the whole scheme of redistributive justice appears to be inadequate to deal with something more basic than inequality.42 We have now a first reason to set aside a redistributive logic to address the problem of poverty. There are, however, other relevant arguments to abandon the general framework of social justice. In the rest of this piece, I will argue that humanity instead of social justice is the suitable line of reasoning to justify moral duties in the context of severe starvation. ders. The fact that our bonds of solidarity, mutual understandings, and trust in others are generally reduced to the context of our political communities is a contingency that could change or, perhaps, should change. We could moreover say that the change of our political structures, as it is the case with the European Union, can have the effect of extending these conditions beyond the regular borders of our nation-states. 40 Quoted in Singer (1993, 219). 41 Cohen (1994, 2, 5–8). 42 This also explains why egalitarians like Rawls and Dworkin do not have a central concern in the problem of extreme poverty. According to Cohen (1994, 1), Rawls even suggests that the least advantaged group might be identified with the group living at less than half the median income, a level of resources that has nothing to do with those of people living in a situation of destitution.

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3. We have seen that poverty should not be of ethical concern only for egalitarian reasons. What is morally unacceptable is not merely that some people are worse off than us. Extreme poverty is so basic because it is connected with the very idea of a moral person and his or her intrinsic worth. Once this claim is accepted, we could turn to the other concern of social justice: the respect for basic liberties or human rights. The access to minimal conditions of agency is a precondition of the very idea of human rights. A moral duty to help starving people at a global scale can be justified, then, as a basic requirement in the protection of human rights. As Miller stresses, to associate poverty with human rights does not present the same constraints that distributive justice could have. The idea of basic liberties is globally applicable because, rather than relating to equality of rights or resources, it focuses on a noncomparative standard: to those rights and minimal conditions that everyone, as a human being, is entitled to. Since living in a situation of extreme poverty prevents people from enjoying their basic liberties, we have the universal moral duty to help them.43 Although we could use the logic of human rights as the standard of social justice that justifies moral duties concerning severe poverty, I think that the special character of this problem advises us to move away from the framework of social justice and, hence, from the question of what kind of institutional arrangements make for a just society.44 In my view, humanity instead of social justice is the correct line of reasoning to face the evil of starvation. The idea of humanity or the principle of humanity has been extensively used in the moral discourse as a way of justifying our duties to help other human beings. As a general approach, humanity relates to what human beings ought to each other, to the moral implications of giving “intrinsic worth to every human being.”45 Moral philosophers, however, tend to place standards of humanity as secondary requirements of general justice, requirements that apply when we cannot make strong moral claims as a matter of social justice. This rather marginal role that it is given to humanity is, in my view, the product of the widespread thought that the paradigm of humanity rests on the image of the good 43

See Miller (1999b, 198–204). Human rights can certainly be approached as a matter of humanity instead of social justice, but I will not explore this possibility further. The only thing I will stress is that taking them as a matter of humanity, or taking certain moral duties as a matter of humanity, leads us to a different way of justifying what we ought to do. Since there is a tendency to associate social justice with domestic social justice (similar to what happens with distributive justice), there is also a tendency to reduce our duties to foreigners to negative duties, human rights being the core of this negative framework. As we will see, the idea of humanity makes it easier to break this association and to adopt a more impartial point of view. At the same time, my aim in this paper is to argue that we could justify a general duty to help starving people even in the absence of any correlative right. 45 Campbell (1974, 15). 44

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Samaritan, and the tendency to strongly associate it with the idea of beneficence.46 Those philosophers who draw attention to our duties of humanity appear to have in mind concepts like kindness, sensitivity, self-sacrifice, charity, sympathy, or compassion to others’ suffering. In this sense, to have humanity is to have a disposition to feel compassion for the needs and sufferings of others, and to act consequently with this disposition. It is argued, nonetheless, that acts of beneficence cannot be reduced to the context of supererogatory acts, that is, those actions that are good or virtuous but not mandatory. When an act of beneficence can be done “without excessive risk or loss to oneself,”47 its performance becomes a moral duty. According to this idea, we could say that duties of humanity require from us not to be good Samaritans, but rather to be minimally charitable or, in Judith Thomson’s terms, to be “Minimally Decent Samaritans.”48 This way of approaching standards of humanity, that distinguishes optional and mandatory charity only by means of the degree of self-sacrifice required, lies, for example, behind Rawls’s distinction between a supererogatory act and a natural duty of mutual aid:49 A beneficent act promotes another’s good; and a benevolent action is done from the desire that the other should have this good. When the benevolent action is one that brings much good for the other person and when it is undertaken at considerable loss or risk to the agent as estimated by his interest more narrowly construed, then the action is supererogatory. An act which would be very good for another, especially one which protects him from great harm or injury, is a natural duty required by the principle of mutual aid, provided that the sacrifice and hazards to the agent are not very great. Thus a supererogatory act may be thought of as one which a person does for the sake of another’s good even though the proviso that nullifies the natural duty is satisfied. In general, supererogatory actions are ones that would be duties were not certain exempting conditions fulfilled which make allowance for reasonable self-interest.50

46 See Barry (1982, 219–221), Campbell (1974, 15–16), Ross (1930, 24–26), Rawls (1971, 438–439), Fishkin (1982, 18–19), Miller (1999a, 224), Heyd (1982, 99–105). I will use here the term “beneficence” not in the broad sense of those acts that actually promote the well-being of others, but in the sense of a benevolent act, an act of beneficence done from the desire to help others. Although many scholars distinguish beneficent acts from benevolent ones (see, for instance, Rawls [1971, 438–439], Heyd [1982, 99–105], Murphy [2000, 3]), in this paper I am interested not only in the result of certain actions but also in our reasons to undertake positive acts of help. 47 Rawls (1971, 114). 48 See Thomson (1986, 15–18). 49 According to Rawls (1971, 114–115), natural duties are those duties individuals have toward persons in general. These duties are then independent of their voluntary actions and do not have a necessary connection with institutions and social practices. 50 Rawls (1971, 438–439).

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This association between the principle of humanity and mandatory beneficence (but beneficence after all) contributes to play down the importance of the very idea of humanity because it might lead us to implicitly think that to have a sense of humanity is a simple question of being a good or virtuous person. And I believe that this is not true. In my view, attending directly the more comprehensive ethical foundation of the principle of humanity, it would be better to understand the force and character of our duty to help those that are starving far from us. Certainly, compassion, kindness, sympathy, and sensitivity are fundamental emotions in the context of our duties to help others. To have these emotions makes it possible to put ourselves in others’ shoes, and these emotions are necessary to expand the moral imagination that we need to identify how we should act toward other people. As Justin Oakley correctly emphasizes, “there seems to be an inherent problem with motivation by duty which is unaccompanied by sympathy and compassion, in the case of certain duties of beneficence; for paradoxically, it is the very fact that one acts from duty uninformed by sympathy or compassion which entails that one fails to fulfill one’s duty here.”51 For this reason, we could say that we have a duty to cultivate these emotions insofar as they help us to see the needs and sufferings of others and allow us then to recognize possible moral occasions for help. Yet humanity cannot be reduced to a set of duties to be sympathetic with others and acting consequently. These duties are better understood as complementary duties due to the instrumental role those emotions play. As I have pointed out earlier, the ethical background of standards of humanity is the intrinsic worth of human beings, the very idea of impartiality that characterizes the moral point of view.52 It is difficult to deny that impartiality is embedded in any form of genuine moral reasoning. Nonetheless, we can approach the requirement of impartiality from two different perspectives: what we could call a “negative” and a “positive” perspective. Impartiality, understood as a negative standard, requires neutrality between different persons and their interests. To act impartially implies acting without prejudice, and then not to give preference to one person over another, or to one group of individuals over another group. Negative impartial51 Oakley (1992, 105). See also Glover (1999, esp. chaps. 4, 5; 1970, chap. 9; 1977, chap. 20), May (1992a, 60), Sherman (1999, 297–301). 52 For this reason, I prefer to approach our moral duties in the context of severe poverty from the perspective of humanity rather than taking alternative approaches to justice in the form of an ethics of the care or the ethics of virtue. The ethics of the care has in mind the ideal of a sympathetic person that is willing to sacrifice herself for the sake of others. The ethics of virtue has in mind the image of a person that has a virtuous character. Humanity, by contrast, only needs an image of a person that acknowledges that all human beings have, as such, moral value.

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ity rejects any approach to moral questions that is not general because it privileges the interests and needs of a particular set of individuals or groups. This negative view of impartiality is clearly endorsed by those theories of social justice that follow the Rawlsian scheme, giving priority to the right over the good.53 As Rawls puts it, referring to his idea of impartiality in contrast with the utilitarian view, “in the original position, the parties are mutually disinterested rather than sympathetic; but lacking knowledge of their natural assets or social situation, they are forced to view their arrangements in a general way;”54 and he continues: “an impartial person is one whose situation and character enable him to judge in accordance with these principles (the principles of justice) without bias or prejudice.”55 From a positive perspective, impartiality requires to have an equal concern for the interests and needs of everybody. The ideal of an impartial act is one that tries to satisfy the needs and interests of all the persons involved. Positive impartiality flows from the recognition of the intrinsic worth of every human being, and, in this sense, is not merely linked to the idea of generality, but rather to that of moral equality (the idea that all persons, as human beings, deserve the same concern and respect). Thomas Nagel’s conception of impartiality as an essential aspect of moral reasoning is one of the clearest examples of this positive perspective. According to Nagel, the impartial attitude comes from “our capacity to take up a point of view which abstracts from who we are, but which appreciates fully and takes to heart the value of every person’s life and welfare.”56 Impartiality requires “putting ourselves in each person’s shoes and taking as our preliminary guide to the value we assign to what happens to him the value which it has from his point of view.”57 In this sense, “what happens to anyone matters the same as if it had happened to anyone else.”58 This positive perspective on impartiality requires the impersonal standpoint that characterizes the general form of moral reasoning. However, it is important not to mistake the impersonality that positive impartiality requires for the aggregative view of impersonality endorsed by utilitarians. Again, in Nagel’s words, “the impersonal concern of ethics is an 53 The good, broadly understood, refers to what makes for a satisfactory plan of life. The right, on the contrary, refers to those principles that, in Rawls’s terms “establish a final ordering among the conflicting claims that persons make upon one another and it is essential that this ordering be identifiable from everyone’s point of view, however difficult it may be in practice for everyone to accept it.” See Rawls (1971, 448). 54 Rawls (1971, 187). 55 Rawls (1971, 190). 56 Nagel (1991, 65). 57 Nagel (1991, 65). 58 Nagel (1991, 13).

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impersonal concern for oneself and all others as individuals . . . For this reason, the impersonal concern is fragmented: it includes a separate concern for each person, and it is realized by looking at the world from each person’s point of view separately and individually, rather than by looking at the world from a single comprehensive point of view. Imaginatively, one must split into all the people in the world, rather than turn oneself into a conglomeration of them.”59 The standpoint of humanity is that of positive impartiality. Impartiality in this sense is directly linked to the assumption that human beings are moral persons with intrinsic value. Standards of humanity, therefore, are directly justified by this assumption of equal worth. This background allows us to recognize the force of the perspective of humanity to assess what we ought to do. Humanity is not merely a question of being sympathetic with others, but of understanding the moral significance of each person. Obviously, positive impartiality is more demanding than its negative side, and, as we will explore further below, the moral challenge in this context is to give a reasonable place to positive impartiality as a standard that aims at regulating and motivating conduct. Nonetheless, my objective now is to show how the idea of positive impartiality can avoid what I take to be a misunderstanding that affects Rawls’s position in his criticism to utilitarianism.60 Rawls, when thinking of the original position from which the principles of social justice flow, compares the view of an impartial (in the sense of disinterested) spectator with that of a sympathetic spectator. Following Hume, he conceives the sympathetic spectator as the compassionate being motivated by a desire to help others. In this sense, the sympathetic spectator is one motivated by “a special kind of pleasure which arises more or less intensely in contemplating the workings of institutions and their consequences for the happiness of those engaged in them. This special pleasure is the result of sympathy.”61 According to Rawls, some philosophers have accepted utilitarianism because they have believed that “the idea of an impartial sympathetic spectator is the correct interpretation of impartiality.”62 In his view, the fault of utilitarians who assume this interpretation of impartiality is that they mistake impersonality for impartiality, and then they do not respect the separateness between persons.63

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Nagel (1979, 127). Rawls (1971, 184–192). 61 Rawls (1971, 185). 62 Rawls (1971, 189). 63 Rawls (1971, 190–191). Certainly, the view of a sympathetic spectator can lead utilitarians to break the distinction between persons because this sentiment of sympathy can promote a willingness to sacrifice one-self for the sake of others, and then to accept that one person can be instrumentalized to maximize the happiness of the aggregate. On this point see also Williams (1981, 4–18), Parfit (1984, 328–336). 60

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Although Rawls’s criticism to utilitarians is correct because of their bare aggregative perspective, Rawls, influenced here by Hume’s rejection of motivation by duty, only considers two possible ways of understanding impartiality, what we have called “negative impartiality” and, let us say, the idea of “sympathetic impartiality.”64 If we take instead the concept of positive impartiality, we can see an alternative to negative impartiality that, on the one hand, it is not connected with the sentiment of sympathy but with the intrinsic worth of every human being, and that, on the other hand, endorses an impersonal view that it is not the aggregative view.65 As I have said before, quoting Nagel’s position, the impersonal standpoint that positive impartiality requires does not go against the distinction between persons; on the contrary, this standard requires to look at each person separately and individually and to recognize the moral worth that each one has as a human being. Consequently, instead of breaking the Kantian maxim that persons are ends in themselves, positive impartiality has its background in this maxim. I am not interested here in defending that positive impartiality should be a central part of social justice, and to derive therefore moral duties toward poor people from the framework of social justice. I have addressed the problem of impartiality in order to clarify the background of standards of humanity. Although I will turn to the relationship between humanity and social justice, we could simply start by stressing, following Rawls, that duties of humanity can be

64 Since Hume reduces the moral universe to motivation by passions and emotions rather than to motivation by duty, he assumes that the only way to design a scheme of social justice is to turn to the passion of sympathy, and to suppose that people can be (or in fact are) sympathetic with others. However, if we think, as I do, first, that human beings have intrinsic moral value, second, that this moral value justifies moral duties toward them, and, third, that a rational person should be motivated by these duties, we do not need to turn to mere sympathy to give moral sense to our concern for other people. 65 Additionally, the fact that Rawls (1971, 191–192) does not pay attention to positive impartiality is what allows him to conclude that the love of mankind is the only alternative to the sense of justice, and to connect the love of mankind with the context of supererogatory behavior. Although I will not develop this point further, it is also interesting to see that Rawls’s inattention to positive impartiality leads him to have a rather ambiguous view on our duties to attend others’ needs. Sometimes, he approaches the question of attending others’ needs as a sentiment that derives from the supererogatory love of mankind. On other occasions, he takes the idea of helping others as a natural duty essential to a theory of social justice. This shows, in my view, that Rawls tends to move rather inadvertently from a sympathetic impartiality to a positive one. When he refers to the natural duty of mutual aid, he implicitly assumes that the background of this duty is neither sympathy nor reciprocity, but the idea of moral worth of human beings. Even when it is true that Rawls (1971, 339) gives some arguments connected with the idea of reciprocity to justify this duty, he concludes his defense by saying that to reject a natural duty to help others without excessive selfsacrifice would express an indifference for human beings “that would make a sense of our own worth impossible.”

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seen as natural duties.66 Rawls has in mind duties that instead of applying to the context of social institutions, apply directly to individuals and are owed to persons in general, disregarding their social arrangements. If we think that natural duties are more comprehensive and, even previous, to standards of social justice, we could take principles of humanity to be one of the minimal orientations to the good that are in the background of any theory of the right. As Rawls himself emphasizes, natural duties are “an essential part of any conception of the right: they define our institutional ties and how we become bound to one another. The conception of justice as fairness is incomplete until these principles have been accounted for.”67 The challenge that humanity, understood as positive impartiality, faces concerns the scope we are legitimated to give to requirements of impartiality when answering the question, What ought we to do? If standards of humanity are too demanding, the original aim of treating people as ends in themselves can be self-defeating, and we then face the risk of ending up justifying the use of individuals as instruments for the sake of others.68 There are three basic difficulties that a view focused on humanity should overcome to justify moral duties in the context of extreme poverty. The first relates to what Rawls calls “reasonable self-interest,” and to the idea that any feasible moral perspective should give room for this reasonable self-interest.69 The second refers to the compatibility between the recognition of special duties and the acceptance of general positive duties. The third difficulty is the problem of feasibility that would allegedly affect positive duties of help because of the slippery slope they can produce. I will deal separately with these three difficulties trying to show how the standpoint of humanity can overcome them, and how the force of our moral duty to help people who are starving beyond our state borders remains rather intact. 4. Since morality aims at motivating conduct, the scope of a requirement of impartiality when we assess what we ought to do toward other people is always problematic, and the challenge is to find a balanced relationship between two different standards: impartiality and separateness between persons or individuality.70 It seems reasonable to assume that a theory of justice should include both ideals if we are to assume that persons are ends in themselves. Nonetheless, the problem with these two standards is that they stand in tension. As Bernard Williams emphasizes, “the honorable instincts of Kantianism to defend the indi66

Rawls (1971, 114–117, 333–342). Rawls (1971, 333). 68 In this case, standards of humanity would have the same problem than utilitarianism has. 69 Rawls (1971, 439). See, also, in general, Scanlon (1998, 224–225). 70 See, for example, Rawls (1971, 175–192). 67

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viduality of individuals against the agglomerative indifference of Utilitarianism can in fact be effective granted the impoverished and abstract character of persons as moral agents which the Kantian view seems to impose.”71 This tension appears when we realize that abstraction from particular circumstances leads to impartiality while individuality moves away from it. To shed light on this point, Williams uses the classical example of the individual who is before two persons whose lives are in danger, and one of them is her partner.72 If only one can be rescued, here, the idea of individuality or separateness between persons would force us to morally justify this person’s decision to save her partner. We generally think that there is something like deep personal ties with other people that are very important for us and that are difficult to reconcile with any requirement of impartiality. Thus, Williams concludes, “life has to have substance if anything is to have sense, including adherence to the impartial system; but if it has substance, then it cannot grant supreme importance to the impartial system, and that system’s holds on it will be, at the limit, insecure.”73 Following Williams’s remarks, we could say that a first restriction for a legitimate account of positive impartiality is the need to accommodate the “reasonable self-interest” that is manifested in the first person’s point of view. Since the substance of each person’s life strongly depends on her interest in her own future and her deepest emotional ties, to deny moral relevance to these human factors would imply to reject the very idea of humanity. We can be urged to abstract from our own circumstances, but there is a limit to our capability of abstraction from ourselves that emerges when we are asked to reject our own identity.74 For this reason, even consequentialist scholars, such as Derek Parfit, who are very critical toward our common-sense morality and who argue in favor of a more impersonal point of view, would not deny that we are justified in giving a certain degree of moral preference to our own future and to our more personal ties.75 In short, there are certain basic individual attachments that are morally valuable insofar as we accept that human beings have an intrinsic value. These attachments do not merely create moral permissions. They rather generate one 71

Williams (1981, 4–5). See Williams (1981, 16). 73 Williams (1981, 18). Fishkin (1982, 170) emphasizes the same tension between impartiality and individuality when we assess social interactions from a general scale. In a similar sense, Scheffler (1995, 235) points out that our modern political world is living a pressure toward both more universalism and more particularism. See, also, Calsamiglia (2000, 53–55). 74 See Nagel (1995, 41). 75 See Parfit (1984, esp. 281, 451). However, at the same time, Parfit (95–98) insists on what he calls “The Parent’s Dilemma” to show how focusing too much on the moral priority of our intimates can result in a self-defeating moral scheme. See also Singer (1993, chapter 8). 72

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kind of special positive duties that can constrain, in case of incompatibility, a general duty to help other people.76 In my view, personal ties such as the ones we have with our intimates generate what we could call a “priority duty.” A priority duty derives from our relationship with other people, and requires giving preference to the needs of a set of persons over those of other people.77 We can justify a priority duty toward intimates because the emotional relationship with them gives substance to the lives of human beings.78 For this reason, we tend to assume that there is something morally wrong, let us say, in the behavior of a person that gives the only food she has to a stranger when her partner needs this food with the same urgency. Most of us would say that this is a morally wrong impartial behavior.79 The first person standpoint, consequently, is a reasonable restriction to impartiality. Certainly, it is difficult to determine what kind of emotional attachments should count here, and to what extent some of them are basic enough to justify a priority duty. We could also say that the relevance we confer to these ties is dependent on our conception of personal identity. If we follow a more depersonalized view of individual identity, we will tend to give less relevance to our own future and to the well-being of our intimates. This is, for example, Parfit’s proposal.80 In his view, if we assume that what unifies the self is not who has a series of experiences but the interconnection and continuity between a set of psychological experiences, we can obtain a more impersonal self. Since an indi76 Since the general distinction between positive and negative duties, on the one hand, and special and general duties, on the other hand, is well known, I will not explore it here. For this distinction, see, for example, Hart (1984), Ross (1930, 27), Lucas (1993, 53–54), Honoré (1999, 41–46), Shue (1988, 687–691). 77 For the general concept of associative duties, see Dworkin (1986, 195–216), Scheffler (2001, chapter 3). As we will see, it is important to emphasize that associative duties are merely one kind of special duties and that, contrary to the idea that Scheffler has on the implications of an associative duty, only some of them can be considered priority duties. 78 This duty does not derive directly from the contingent fact that we generally give relevance to our personal ties. We could say that our normative image of a moral person includes these kinds of intimate attachments. Although this conception flows from human practices and interactions, it is a general abstraction from them. Obviously, we can find real people with no attachments at all, but this does not affect the normative conception of a moral person. Moreover, according to this conception, we would see these individuals as alienated persons. Certainly, this reflection does not aspire to answer the question of the rational foundation of these basic special duties. I will not explore this rather complex question in this paper. For the arguments (desirability plus responsibility) we can give to endow special duties with a rational foundation against the challenge of the neutralist view that deny it to them, see Pettit/Goodin (1986, 664–673). 79 As Henry Shue (1988, 692) correctly observes, “we do not ordinarily criticize people morally for displaying priority for intimates, but we would be extremely suspicious of anyone who did not display it.” 80 See Parfit (1984, part III).

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vidual does not acquire these interconnected experiences in isolation and their continuity does not exclusively depend on who has these experiences, individuals can be more detached from themselves and see other people closer. According to Parfit, once the identity of the self is conceived as depersonalized psychological continuity, “I am less concerned about the rest of my own life, and more concerned about the lives of others.”81 Although these questions are relevant to our present discussion, I will not explore them further because the main interest of this paper is to argue that those emotional attachments that give substance to the lives of human beings justify a priority duty, and that even a conception of personal identity like Parfit’s would assume, as I have said, a similar constraint on impartiality. My main concern with the first person’s perspective is the question of its compatibility with the recognition of the general duty to help people that are starving far from us. In my view, the tension between priority duties toward intimates and general duties to help strangers should not be ignored, but, at the same time, should not be overstated. We can positively find or imagine tragic cases where to help a stranger would imply to neglect drastically our own needs or the needs of those close to us. But how many real tragic cases are we going to face throughout our lives? Probably none. Since the differences between us and those that are dying of hunger are so huge, the possibility of being in the same situation as them and to face a tragic option will be rather anecdotic. For this reason, the insistence on limiting our general duties toward poor people because of the personal standpoint has no clear moral support. It is true that we are legitimated to give priority to our intimates when the needs at stake are the same, and it is perhaps true as well that there is something reasonable in giving more value to our own needs even when the needs of others are more basic.82 However, there is a limit to the moral justification of self-interest when the sacrifice that helping strangers would require is not significant and when the recipients of our help have so urgent basic needs. Once this common-sense limitation is accepted, our passivity toward the poorest people can only be seen as the product of our interest in keeping our modus vivendi completely intact.83

81 Parfit (1984, 281). For an accurate analysis of Parfit’s conception of personal identity, see Álvarez (2002, 163–194). 82 For this reason, we could agree with Lucas (1993, 39) when he observes that “a man who gives his children only sardines sandwiches for Christmas, so as to give more to Oxfam, is not self-evidently doing right.” We could also agree with O’Neill (1986, 101–102) when she says that the very discourse of rights has the necessary cost of constraining our general obligations to famine relief. 83 As Narverson points out, this passivity merely reflects our view that “the importance of the kind of life we have set out to live is greater than the amount of suffering preventable by depriving ourselves of the means to live it.” Quoted in Fishkin (1982, 77). On this point, see also Murphy (1999a, 117).

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In conclusion, despite its relevance, the first person point of view is not a real challenge for the recognition of a duty to help poor people for the sake of humanity. This point of view does not weaken the claim grounded on considerations of positive impartiality that we should broaden the narrow scale in which we usually assess what we ought to do.84 However, separateness between persons is not the only argument that could be offered to deny that we should contribute to famine relief. I will now explore the idea that we are justified in focusing our moral concern on our compatriots, instead of having a general moral concern for every human being. 5. Individuality is not the only factor that explains why our common-sense morality is reluctant to accept general duties of humanity. Our common-sense morality is also focused on our belonging to a political community as the main moral framework in our everyday life. For this reason, it is a widespread belief that we, as citizens of a country, have strong special duties toward our fellow citizens that weaken any general duty we could recognize. We certainly have special duties toward our compatriots. The fact that people belong to a country creates a context of duties that apply to those who are involved in a cooperative scheme like a political community and benefit from it in general terms. At first sight, we could mention, as possible sources of these special duties, notions like actual or potential reciprocity, mutual benefit, or even the general idea of a social contract. However, those scholars who emphasize the tension between communal obligations and general duties are not thinking of a political community as a bare cooperative scheme, or, in Michael Walzer’s terms, as a “mutual benefit club.”85 I will focus on Scheffler’s position on this issue. Scheffler, who stresses the difficulties to make compatible both kinds of duties, uses here Dworkin’s nomenclature of “associative obligations,” which Dworkin links with the wellknown idea of a fraternal community.86 In Scheffler’s construction, communal obligations are associative duties derived from our relationship with other people that require us to give priority to the interests and needs of our associates over the interests of strangers or nonassociates.87 Following his view, therefore, 84 On the general idea that our special responsibilities toward our intimates do not represent a significant threat to claims of global justice, see Murphy (1999, 117–119). 85 Walzer (1983, 81). See, also, the idea of a state as a club of mutual benefit in Goodin (1988, 675–678). 86 According to Dworkin (1986, 199–200), associative obligations that flow from a fraternal community have the following features: (a) they are seen as special obligations addressed to the members of the group only; (b) they are personal obligations that “run directly from each member to each other member, not just to the group as a whole in a collective sense;” (c) the obligations flow from a more general responsibility of concern “for the well-being of others in the group;” and (d) the obligations show an equal concern for the well-being of all members. 87 See Scheffler (2001, 53, 56–57, 87).

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we could say that associative duties generate what we have called “priority duties.” Although Scheffler’s approach to associative duties is rather vague and broad, he considers that our relationship with our intimates, friends, neighbors, colleagues, and compatriots generate them. In this sense, all contexts of our social relations would call for giving priority to those who are associated with us over strangers, and since we effectively have these kinds of relations, to assume associative duties is a constraint on the recognition of general duties toward all human beings.88 Associative duties, as something distinguishable from the rest of special duties, need a distinctive moral source. Combining Scheffler’s considerations with Dworkin’s remarks, it appears that this source should be found not merely in the benefits we obtain from our social interactions but in the intrinsic value of the relations we engage in.89 Their value rests on the moral significance that our emotional attachments and ties with other people have for our own personal identity. As Scheffler remarks, “we human beings are social creatures, and creatures with values. Among the things that we value are our relations with each other. But to value one’s relationship with another person is to see it as a source of reasons for action of a distinctive kind;”90 and he continues further on, “the influence on our personal histories of unchosen social relations – to parents and siblings, families and communities, nations and peoples – is not something that we determine by ourselves . . . Even those who sever or repudiate such ties – in so far as it is possible to do so – can never escape their influence or deprive them of all significance.”91 Dworkin’s view appears to be similar when he says, referring to associative obligations, that although the existence of these obligations does not require that each member loves all others, “a group will rarely meet or long sustain them unless its members by and large feel some emotional bond with one another.”92 Miller also defends this view when he points out that those special duties we have toward the members of our political communities cannot be seen as a convenient moral division of labor, “but reflect the fact that the strength of interpersonal obligations generally depends on the ties that bind the two parties concerned.”93 88

Scheffler (2001, 56–7, 94–96). The idea of intrinsic value should not be understood here as the idea of objective value that transcends human practices. “Intrinsic” value would simply mean a value that, without being instrumental, is a value for us. See Raz (1999, chap. 11). 90 Scheffler (2001, 103). 91 Scheffler (2001, 106–107). See, in a very similar sense, Sandel (1982, 178–183), MacIntyre (1985, 220). The relevance that our social attachments have for our personal identity has been emphasized by many other scholars that do not clearly agree with the rather social deterministic view that Sandel and MacIntyre endorse. See, for example, Taylor (1991, 31–41, 45–53), Kymlicka (1995, 82–94). On this debate see, in general, Torbisco (2000, 392–426). 92 Dworkin (1986, 201). 89

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This link between associative duties and emotional ties can be clearly captured using the well-known metaphor of concentric circles. Following Henry Shue on this point, our relationship with other people can be illustrated by concentric circles of emotional bonds, being ourselves the core of them. The closest circle is that of our intimates, we have next the circle of our colleagues and neighbors, the circle of our compatriots, and we can continue to establish circles until we arrive at humanity as a whole. As Shue stresses, according to this metaphor, our moral duties are stronger as the circles are closer to us and diminish toward the periphery. “Plainly, any duties to those on the far periphery are going to diminish to nothing, and given the limited resources available to any ordinary person, her positive duties will barely reach beyond a second or third circle.”94 If this metaphor is a correct illustration of the functioning of our moral duties toward other people, we could have strong arguments to deny that we have in fact any positive duty to help strangers. However, the metaphor of concentric circles only acquires explanatory power insofar as we have different circles defined by similar emotional attachments that basically differ in the force they have for us. If the source of our relationship with others was different in each circle, the metaphor would become useless because we would not have then a single way to compare the possible duties that may flow from each circle. And I think that this is precisely what happens with the idea of concentric circles: it is not true that we can compare the emotional ties we have with our intimates with the kind of bonds we have with the circle of our compatriots. We have said before that associative duties toward our fellow citizens are seen as priority duties, that they contrain general duties. Curiously, when Scheffler refers to associative duties that apply to the political community, he uses examples concerning our intimates and friends to show that associative duties are linked to emotional ties basic for personal identity, and which, consequently, justify priorities.95 As I emphasized earlier using Williams’s reflection on the moral significance of our most personal and emotional attachments, it is clear that our circle of intimates generates priority duties. However, could we and should we expand this reasoning to the circle of compatriots? In my view, we cannot or, at least, we should not.

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Miller (1999b, 200). Shue (1988, 691). On this idea see also Nussbaum (1999, 19). 95 See Scheffler (2001, 49–59). Miller does exactly the same (1999b, 200) when he justifies our communal duties by considerations of interpersonal ties. This is also what Sandel does when he criticizes Rawls’s deontological view of the self. Sandel (1982, 179) uses the idea of friendship to exemplify how our social attachments are, despite including in those attachments the ones we have with our community, nation, or people. 94

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Let us pay attention to the image of the circle of compatriots when we conceive it as a continuum with the intimate circle (with less strong attachments, but emotional attachments after all). In this picture, a political community can be represented by the image of the clan. A clan is a group of people emotionally bound to one another, a group where each member has a strong and circumscribed concern for the well-being of other members, and where its members are willing to sacrifice themselves for the sake of others. Obviously, we can imagine a political community having the social structure of a clan. But many political communities do not have this profile.96 As a question of fact, then, we cannot reduce political structures to the image of a clan because they can work without these kinds of emotional attachments. More importantly, our normative image of a political community does not fit, from a liberal perspective, the image of a clan. Nation-states are structures of mutual cooperation, and in order to sustain them we certainly need social commitments, some common interests, and bonds of distributive solidarity. As I said before, those who assume that redistributive justice cannot be globally expanded have in mind this conception of what a political community is. It is also true that, since we are social creatures, our belonging to a country is a relevant part of our identity; we cannot fully understand ourselves without the history and context we share with others. Nevertheless, this implies neither that we should have emotional ties with our compatriots nor that we owe to them, due to who they are, priority over strangers. A more committed view of a political community does not connect duties toward our compatriots with the burdens of cooperation or with a simple identity fact, but with the intrinsic value of our relationship with our fellow citizens. Only then associative duties can be seen as distinctive special duties that generate priority duties such as the ones we have with our intimates. An example comparing the situation of significant others with that of compatriots can be 96 For this reason, Dworkin himself (1986, 195–202), although he links the presence of emotional ties with associative duties and he always uses examples of our intimate relationships to justify them, has difficulties in clarifying what kinds of attachments give rise to the associative duties that emerge in a fraternal community. Dworkin (1986, 201) points out, for example, that “these must be practices that people with the right concern would adopt – not a psychological property of some fixed numbers of the actual members. So, contrary to the assumption that seemed to argue against assimilating political to associative obligations, associative communities can be larger and more anonymous than they could be if it were a necessary condition that each member love all others, or even that they know them or know who they are.” Since Dworkin links associative duties not with associative communities in general but with fraternal communities, the question that he does not answer is what kinds of attachments do we need to have a “fraternal” community, or, in other terms, what justifies the strong, circumscribed, personal, and egalitarian concern for the wellbeing of the members of the group that characterizes his view on associative obligations.

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useful to understand the moral implications of accepting this more committed view of a political community. I mentioned earlier that we would see something wrong in the conduct of a person that gives her food to a stranger when her partner needs this food with the same urgency. Would we think the same in the case of a Spanish citizen giving his food to an unknown foreigner instead of giving it to an unknown citizen of Madrid? The view of the community as a clan would defend that he is acting wrongly. I believe, by contrast, that there is nothing wrong in the behavior of the Spanish citizen who decides to help the foreigner, and this is because, unlike the former case, he does not have the duty to give priority to the needs of his compatriot over the needs of the foreigner. As Spanish citizen, he certainly has duties toward his nation and he must contribute to the cooperative scheme of redistribution that this nation creates. However, this does not affect what he owes to others as a human being. In the case of the couple, the situation is clearly different. The basic emotional attachments with those that are close to us are a central part of our idea of a human being, and, as human beings, we are justified in giving preference to the needs and sufferings of our intimates over strangers. For this reason, in my view, the only obligations that are associative duties in Scheffler’s sense are the last ones.97 In this way, either those associative duties that Scheffler links with political communities can be included in a broader conception of associative duty or they can be reduced to the rest of special duties, i. e., duties that derive from a contract or promise, reparative duties, duties of gratitude and reciprocity, duties connected with the performance of a social role, and duties that derive from situations of dependency.98 In short, using Shue’s words, when we move away from the intimate circle, “I see insufficient reason to believe that one’s positive duties to people in the next county, who are in fact strangers, are any greater than one’s positive duties to people on the next continent, who, though they are distant strangers, are not any more strangers than the strangers in the next county: a stranger is a stranger.”99 If we assume this perspective, there is no inherent tension between those special duties that flow from our belonging to political communities and a general duty to contribute to famine relief. Certainly, even when we admit that there is no intrinsic tension between special and general duties because they move in different levels, if the cooperative schemes in which we as citizens participate are very demanding for us, we could lack, in practical terms, the capacity to fulfill our general duties toward all human beings. If, for example, I have promised to give half of my rather average earnings to support the electoral campaign of my favorite political can97 As Murphy (1999a, 118) correctly states, we cannot take duties toward our intimates and duties toward our compatriots to differ only as a matter of degree. 98 See Scheffler (2001, 49–51). On the sources of special duties, see also Honoré (1999, 55–58). 99 Shue (1988, 692–693). See also Murphy (1999a, 117–118).

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didate, this does not generate a priority duty toward this politician over a starving stranger, but I have a new duty that can diminish my capacity to help the stranger. We could say that, as a matter of humanity, there are strong reasons in this case to affirm that I am morally obliged to break my promise and help the stranger. However, the general duty does not nullify the special duty I have accepted when my resources are not enough to satisfy both. I have repeatedly remarked that we should not exaggerate the burdens that helping starving strangers would impose on us, since the differences between them and us are huge. Additionally, I have defended that we do not need a redistributive logic to recognize that any human being should have minimal conditions of life. It is true, nonetheless, that there is a practical difficulty in conciliating the whole set of our moral duties. For this reason, Robert Goodin’s proposal of approaching special duties that derive from our belonging to political communities, and the very idea of nation-states, as instruments for the realization of general duties can be useful to consolidate the perspective of humanity in the context of severe poverty. Goodin assumes that understanding nation-states as clubs of mutual benefit could be a way of justifying special duties that, in practice, constrain general duties. Nevertheless, he denies that this view is a suitable conception of a nation-state.100 Objecting to the intrinsic relevance of our duties to compatriots, he proposes to see our special duties in the context of political communities as instruments to distribute general duties we have toward every human being. In this sense, these special duties would be “devices whereby the moral community’s general duties get assigned to particular agents.”101 Following this view, nation-states are structures that are effective to organize universal positive duties, and their moral relevance is dependent on their quality as an instrument. When this structure becomes ineffective or is not effective enough to organize general obligations, those special duties connected with political communities can be overcome by considerations of general duty to which they serve. The persistence of severe poverty worldwide shows that, certainly, nation-states are not instruments effective enough to organize general duties. I will return to Goodin’s seminal proposal in the last section. In what follows I would like to mention some more arguments complementing those addressed either to reject the alleged tension between special and general duties or to show that special duties should not have precedence over general ones. Scheffler himself uses what he calls “the distributive objection” to deny that special duties have primacy over global justice. In his view, special responsibilities are 100 Goodin (1988, 675–678) rejects this view, basically because, first, this would give ethical relevance to the territorial factor and borders, and, second, the way people acquire the status of citizen cannot be equated with the belonging to a club since the logic of mutual benefit does not apply to determine who is a citizen. 101 Goodin (1988, 678).

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unjust because they give to already advantaged people additional advantages that work to the detriment of those who have more urgent needs.102 Dworkin assumes that associative duties can be overridden by considerations of general justice, for example, when those duties lead to discriminatory practices against those who are not members. According to Dworkin, we use parameters of general justice to interpret and decide what people’s associative duties really are.103 In this sense, we could say that since borders generate discriminatory practices against people from poor countries, we are legitimated to reinterpret associative duties making them compatible with considerations of global justice. Even Miller, who defends that comparative principles of justice cannot have a global scale, maintaining that poverty is in most occasions the product of internal political failures, believes that our special duties do not prevent us from having a moral duty to help those people whose basic rights are not granted because they are starving.104 Finally, an additional argument emerges from the idea of positive impartiality embedded in standards of humanity. As Nagel and others emphasize, if we assume that we should have an equal concern for the needs of everybody as separate persons, we should also accept, as a basic criterion to choose between conflicting needs, a priority for those who have the most urgent needs (having always in mind the idea of diminishing marginal utility).105 Although Nagel does not clearly justify why we should accept this priority, I think that the following remark can be helpful.106 Given that I am asked to put myself in another person’s shoes, I should look at her needs as if they were my needs. Most of us would accept that we owe to ourselves a prevalent attention to our most urgent needs over the rest of our needs. The same applies for everybody, and since all human beings deserve the same consideration, we should give priority to those

102

See Scheffler (2001, 56–65, 83–96). I will set aside another interesting, but, in my view, misleading argument posed by Pogge (2002b, 81–91) to justify why special duties do not diminish our general duties. His argument is linked to the idea that special duties tell us that we must give preference to something when, in fact, we already have the permission to do it. 103 Dworkin (1986, 202–206). 104 Miller (1999b, 198–204). Although I will not develop this point here, among these basic rights we can highlight a human right to food as one of those rights that can justify our general duty. In this sense, we do not need to speak about imperfect duties in the context of severe poverty. 105 Nagel (1991, 66–72; 1979, 127). Although Parfit (1997) has also defended this view from a different perspective, I am only using here Nagel’s remarks. See also Campbell (1974, 15). 106 Nagel presupposes, more than justifying, the priority for those who have the most urgent needs. His only arguments are linked to the problem of distribution of natural talents and to the fact that individuals are not always responsible for what happens to them. Nagel (1991, 69–71).

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with the more urgent needs. Obviously, the worldwide starving population is the clearest recipient of this priority. Despite I shall not pursue this idea further, the argument so far is enough to conclude that since the priority of urgent needs is a central point of positive impartiality we require a strong justification to break this impartial concern. We have said that the idea of priority for intimates gives us this strong justification. As I have argued, this is not the case with the rest of our special duties. As a matter of general justice, and if we reject the clan picture of the state, we do not have this strong justification that would allow us to override the priority for urgent needs. Coming back then to the initial question of this section, the fact that we have communal obligations does not weaken our moral duty to help those that are starving far from us. In this way, until we, people from affluent countries, do not undertake effective actions to eradicate severe poverty worldwide, we share moral responsibility for every death and extreme suffering that our self-indulgent, common-sense morality tolerates. The aim of this paper has been to show that we have strong moral reasons to accept a general duty to contribute to famine relief. The arguments I have offered so far work in this direction. However, I would like to conclude by briefly referring to another line of argumentation against individual general duties that focuses on their feasibility rather than on their moral justification. 6. Some scholars have emphasized that, even if we accept a moral duty to help starving strangers when this can be done without significant sacrifice, in practice, the consequences of taking this duty seriously from an individual perspective ends up requiring heroic sacrifices. I will take here Fishkin’s position on this point, and his remarks on this duty that he labels as “minimal altruism.” In Fishkin’s opinion, although the principle of minimal altruism can work at the everyday life scale, its functionality differs when we adopt a more global scale, and it becomes then an impracticable individual requirement.107 Fishkin uses the following example: Let us suppose that each small contribution to famine relief, say five or ten dollars, will save another human life by facilitating delivery of surplus foodstuffs to starving refugees. If we take such charitable appeals seriously, then our principle of minimal altruism requires that we give not only five or ten dollars but many more as well, for each additional small contribution would save another human life at minor cost.108

From this example, Fishkin concludes that taking this duty seriously will require heroic behaviors. On the one hand, minimal altruism is not fulfilled with a single act of help. On the other hand, we will always find multiple occasions 107 108

See Fishkin (1982, 33). Fishkin (1982, 3–4).

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to apply it and multiple persons that need our help. The consequence that derives from adding together those positive acts of help that we can undertake without an excessive cost is to impose an exorbitant individual cost.109 According to Fishkin, in the face of this perverse effect of minimal altruism, there is nothing left but to choose between two moral alternatives: either we abandon the settled idea that certain levels of self-sacrifice are supererogatory or we deny the existence of positive general duties. The first alternative would lead us to something like a moral hell; the second would lead us far from the ideal of impartiality. The dilemmatic situation that Fishkin draws, just as it is presented, cannot be easily eluded. From an individual perspective, if we add together every occasion where minimal altruism is applicable, this certainly requires heroic behavior. It would not be enough to say, for example, that I fulfill this duty when I give ten percent of my time and resources to help others. As Fishkin correctly stresses, if, after giving my ten percent somebody else needs my help, “I can simply ignore the appeal for help? Is it justifiable to claim, given my past history of good works, that I should now feel free to do nothing, that only others should be required to act? In a world of imperfect moral cooperation, others may not step in to do their share. Regardless of my history of action, it seems difficult for me then to avoid a share of the blame if I do nothing.”110 Although, in my view, there are reasons to think that this dilemma can be dissolved at the individual scale, I will not focus on them.111 What is relevant here is to realize that this alleged dilemma vanishes when we move from the individual perspective in order to approach the duty of minimal altruism. If enough attention is paid to the potential of collective action in this context, Fishkin’s considerations turn out to be rather weak. His remarks would be relevant if we would have no tool, apart from individual effort, to carry out our shared general duties. Fortunately, however, this is not true. The alternative to individual altruism is what I would call “organized altruism.”

109 See Fishkin (1982, 54–59, 79, 153–155, 168), and the parallels he draws with the Sorites paradox. 110 Fishkin (1982, 163). Although I cannot explore it here, a way of solving the problem that living in a world of imperfect cooperation poses to individual altruism can be found in Murphy’s proposal (1993, 277–281) of a cooperative principle of beneficence. According to this principle, the duty of beneficence requires each of us to promote others’ well-being, but without having to do more than what would be demanded from us in a situation of full compliance (when all the agents fulfill their correspondent duty). In this sense, we can only be asked to do our share. 111 See, for example, the arguments of Bayón (1986, 48–53, and fn. 28), using the idea of autonomy to overcome this problem, and his interesting comparison with those nontrivial sacrifices that the idea of the social state requires from the citizenry. See also Garzón Valdes’s (1986, 24–27) comments on the confusions the articulation of Fishkin’s dilemma suffers and the ways to dissolve it.

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Global problems such as worldwide severe poverty go beyond any individual dimension of moral responsibility. For this reason, the implementation of our general positive duties requires to undertake collective actions. Some scholars try to solve this problem by assuming that collective entities, as independent moral agents, rather than individuals, have the moral duty to contribute to famine relief. In Peter French’s opinion, the potential longevity of collective persons that goes far beyond the longevity of an individual, or even a generation of individuals, would make them perfect candidates to bear the burdens of minimal altruism.112 Nonetheless, we do not need to assume that collective entities are independent moral persons to acknowledge their instrumental relevance as vehicles of those positive duties that we individuals share. We could say, along with Virginia Held’s also collectivistic view, that when our individual, isolated actions are not enough to carry out our general duties, an organized collective action is morally required.113 In this sense, individuals share a derivative duty to organize themselves just like they share the duty to minimal altruism. The proposal of Henry Shue can be very illuminating to clarify this point. He starts by assuming as obvious that the time, energy, and resources of each isolated individual are insignificant to cover the most urgent needs of all human beings. Shue, nevertheless, regards also as obvious that “the aggregate of individually small investments by large numbers of persons could reach a significant sum, especially if cooperation and coordination occurred among those acting in fulfillment of duty.”114 For this reason, his proposal is to consider our general duties to strangers as indirect obligations in the sense that their implementation needs the mediation of the activity of institutions created to this end.115 Leaving apart the question whether it is better to take these duties as indirect obligations or as direct duties that require organized collective action to be implemented, this proposal has important advantages: on the one hand, it has the practical effect of more efficiency; on the other hand, it has the psychological effect of relieving individuals from the feeling of excessive burden that the principle of altruism could imply.116 112

See French (1992, 83–84, 98–101). See Held (1970, 479). Certainly, we could say that in order to fulfill the duty of minimal altruism it is not enough to undertake particular actions in particular moments. This duty is better seen as a duty whose content is an activity rather than an action, that is to say, as a process or sequence of actions whose bond with the good they are called to protect exceeds the possibilities of both the duration and identity of each individual, and that of a generation of them. For this reason, it is reasonable to affirm that the effective fulfillment of this moral obligation that we share requires us to provide tools to warrant the continuation of this activity beyond our individual possibilities for action. 114 Shue (1988, 695). 115 See Shue (1988, 697). 116 See Shue (1988, 696). 113

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Obviously, the arguments discussed so far open up other important questions such as what kind of institutions should undertake this instrumental role, and what kind of help should be required to effectively contribute to famine relief. These are matters I shall not pursue here. Yet, contrary to what Goodin assumes, nation-states, as we still conceive them today, are not the best candidates to implement our general duty toward the poorest people. This is not only because in a more interdependent world these political structures are starting to be in crisis, but because their logic and parameters of action tend to have a local focus, highly dependent on factors such as borders, citizenry, geographic proximity, and international alliances. As a matter of humanity, the usefulness of organized activity lies in its ability to expand our moral arm, and then, to overcome the difficulties we face due to our limited causal powers as individuals. Nation-states could play this role, but in a different world. Perhaps, as some philosophers have emphasized, other institutions, transnational or nongovernmental, created with the aim of promoting and warranting the equal consideration and respect that all human beings deserve, could undertake this moral task in a more effective and trustful way.117 Nevertheless, the experience shows that these international and nongovernmental structures are still far from being the optimum vehicle. In any event, the implementation of our duty to minimal altruism asks for a more creative effort to figure out how we can use collective structures to this moral aim. The derivative duty to organize ourselves claims for a deeper imaginative exercise concerning how we can expand our moral causal powers.118 In the meantime, it is reasonable to claim that we, those who are not in the situations of being recipients of the moral duty of altruism, mainly because of our good natural luck, share the moral responsibility for the situation of severe poverty. In conclusion, it is not comfortable indeed for our common-sense and domestic morality to accept a moral duty to help those millions of people that are starving in different continents. We have then the danger to enter into a neverending debate about the limits of distributive and social justice, and to what extent cooperative schemes that sustain them can be globally expanded. I have suggested that the debate about famine relief should focus on some very basic considerations regarding the intrinsic worth of all human beings: the perspective of humanity as positive impartiality. I have assumed that these considerations about human worth are so basic that they should be regarded as previous to any 117 See, for example, Beitz (1985), Held (1995). For a general discussion on this topic, see Kymlicka and Straehle (2001). 118 As Iris Marion Young (2000, 250) stresses, “the scope of political institutions ought to correspond to the scope of obligations of justice. Thus if the scope of some obligations of justice in the world today is global, there ought to be stronger and more democratic organizations of global governance with which to discharge those obligations.”

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form of social justice. From this standpoint, the moral solution to poverty is easy. We cannot argue that contributing to famine relief in an effective way would require heroic sacrifices when we become conscious that one percent of our total wealth would suffice to make a difference. Certainly, the perspective of humanity imposes some burdens on individuals, especially the burden of acting morally. However, we only need a small exercise of moral imagination and look at our world with an honest degree of impartiality to realize that this is not a demanding burden at all.

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Shue, Henry (1988), Mediating Duties, Ethics, 98, 687–704. Singer, Peter (1985), Famine, Affluence, and Morality, in Beits, Ch./Cohern, M./Scanlon, Th./Simmons, J. (eds.), International Ethics. A Philosophy and Public Affairs Reader, Princeton: Princeton University Press, 247–261. – (1993), Practical Ethics. Second Edition, Cambridge: Cambridge University Press. Taylor, Charles (1991), The Ethics of Authenticity, Cambridge (Mass.): Harvard University Press. Thomson, Judith Jarvis (1986), Rights, Restitution, and Risk. Essays in Moral Theory, Cambridge (Mass.): Harvard University Press. Torbisco, Neus (2000), Minorías culturales y derechos colectivos: un enfoque liberal, Barcelona: Universitat Pompeu Fabra. Walzer, Michael (1983), Spheres of Justice, Oxford: Oxford University Press. Williams, Bernard (1981), Moral Luck, Cambridge: Cambridge University Press. Young, Iris Marion (2000), Inclusion and Democracy, Oxford: Oxford University Press.

Poverty as Failed Exercise of Rights? Some Theoretical Problems* Francesco Biondo Usually, when we discuss the issue of poverty in legal and political theory we deal with questions of distributive justice or we try to affirm or deny a certain list of basic rights. Poverty, as a state of extreme deprivation, is a sort of “litmus paper” that helps us to confirm or deny particular conceptions of equality (e. g. equality of opportunity, equality of resources, formal equality) or particular theories of rights. It is commonly held that a conception of justice, such as certain versions of libertarianism, is unappealing when it leaves poor people unhelped, provided that this state of deprivation is due to unfortunate circumstances, or when it considers equally free the rich and the poor. Moreover, these benefits are not justified on the basis of charity but are an instance of individual rights, if we want to respect individual dignity. Poverty, then, concerns legal and political theory only in normative analysis: it helps to define a correct account of distributive justice or a comprehensive list of basic rights. However, it is possible to discuss poverty in a different way that remains relevant to political and legal theory. A state of deprivation can be epitomised as a situation that implies not only a lack of resources but even a failed exercise of individual rights. Sometimes, if we consider poor exclusively those who have not enough money we may miss part of the picture or we may pursue inefficient and/or unjust policies. Let us think of handicapped persons that have a certain income; this sum may be enough for healthy people, but it is not the case for those who are not self-sufficient. Thus, we may have people poor and people not poor with the same amount of resources. Poverty, then, must be considered not as a lack of resources but as the difficulty of enjoying relevant opportunities (e. g. reading, writing, having high life expectancy, having shelter, access to health services, etc.) that are, or must be, provided by society or government to everyone. A state of deprivation is a failed exercise of individual rights, rights that are necessary as an index of the development of a certain community. The link between poverty and rights, thus, changes dramatically: from a normative inquiry we shift to a descriptive analy* I am indebted to Bruno Celano and Aldo Schiavello for comments and criticisms.

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sis of deprivation. We do not ask, “In which terms can a just society tolerate poverty?”; we strive to know whether a state of deprivation is a matter of failure in guaranteeing certain basic rights. In this paper, I will raise some doubts to this account of poverty and especially to Amartya Sen’s theory that has developed in full this link between rights and deprivation. In order to achieve that, I will introduce the problem of the analysis of the term “poverty” by shedding light on certain drawbacks of mainstream economics. This helps to understand the reasons of Sen’s alternative approach to the analysis of poverty. I will argue, however, that his approach, although useful, raises doubts about its implementation that the author does not clarify. 1. The Account of Poverty in Mainstream Economics, for and Against When we try to assess a state of deprivation, what we conventionally call “poverty”, two questions arise. The first concerns the way we measure the intensity of deprivation (how much a person is poor), the second deals with the currency of poverty (what we lack when we are poor). Let us start with the first question. When we try to measure the intensity of a state of deprivation we must give an answer to the following query: Is poverty a deviation from a conventional line, the widest difference with the richest, or is it an objective state of affairs? The query concerns two different ways of describing a state of deprivation that we can call respectively: 1) “poverty as extreme inequality”, 2) “absolute poverty”. It is clear, then, that we can start with two different outlooks on the measurement of poverty. The former approach, that is commonly used in mainstream economics, considers poverty as a conventional line which depends on the wealth of a community. Those with an income below a certain level (usually a fraction of the per capita income), what we can call “the line of poverty”, are in a state of deprivation. The state of deprivation, then, depends on what we consider to be the income necessary to take part in our community.1 Hence, according to this outlook, poverty can be considered a state of extreme inequality between different social groups, since this line depends on the breadth of the gap between the people with the highest and the people with the lowest income. However, not just any inequality matters (e. g. inequality of opportunities, or differences in life expectancy, literacy rates, etc.), but only differences in real income.2 1 Hereby, I assume that we are concerned with sheer poverty and not with starvation, hunger, or famine, even though, as we shall see, certain approaches cannot take this distinction for granted. 2 An example of such approach is given by Townsend, 1979 and 1985.

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The second approach takes the opposite road to shed light on this phenomenon. It considers poverty as an objective state of deprivation. According to this outlook, deprivation cannot be reduced to a gap in income, since we may have communities that are poor even though there are not massive inequalities. Therefore, there is an objective state of poverty no matter how low the medium real income is. However, we may even wonder if deprivation consists only in a lack of income. The second question I epitomised at the outset deals with the “currency of poverty”: Is it a problem of availability of resources, or a question of fulfilment of basic needs? The reasons why we usually think of poverty as a lack of income are clear: we can aggregate and measure different states of deprivation independently of cultural or individual variables, i. e. what a community or a person considers worthwhile or necessary. Moreover, by taking as relevant only the resources one has, we do not impose any ordering of value on him (or her). Therefore, we avoid the risk of judging a person poor each time he or she uses resources in the “wrong way”. In other words, we do not confuse the diagnosis of the phenomenon with a moral assessment and, consequently, we reduce the danger of implementing paternalistic policy measures. However, this account of poverty cannot explain why different people can be differently poor with the same amount of resources. Let us think of two persons: one is handicapped, the other one is not. It is clear that with the same fraction of the medium income they can be differently poor, as their needs are diverse. Therefore, if we talk about poverty we do not want only to know who earns what, but we strive to diagnose who needs what.3 But how can we identify what a person really needs? In fact, needs often conflict with preferences:4 we may not recognise ourselves as needy, or we can fancy something even though we know that something else is necessary.5 Both cases are due to distorted ways of forming preferences: we do not know what is important for us,6 or we are not able to give up to desire something unessential or even harmful.7 Furthermore, there is another case of conflict between preferences and needs that can be considered an instance of free-riding. We can even pretend to be needy in order to get more than is urgent8 or we can choose to 3

See Streeten, 1981. On the conflict between preferences and needs as basic concepts of moral assessment see, among others, Scanlon, 1975. 5 This is the phenomenon of “weakness of the will”; see Mele, 1987. 6 It may be the case, as we shall see, that a person believes that he or she is not in a state of extreme deprivation since he or she cannot even imagine another standard of living. It is an instance of the phenomenon of “adaptive preferences”. See Elster, 1984. 7 On the wide debate on addiction see Elster/Skog, 1999. 4

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have expensive tastes (i. e. buying caviar instead of bread)9 because we know that other needs will be fulfilled anyway. Therefore, if we think that poverty is not only a matter of availability of resources, it does not imply that it is easy to identify which our true needs are. In other words, the concept of “need” may hide two conflicting outlooks on deprivation: one is subjective, the other is objective. According to the first, need is a subjective state that cannot be detected in a way that is independent from what a person wants, or from what he or she believes, or pretends to be. According to the second, need is a state that can be detected no matter what a person’s preferences or beliefs. Hence, an objective account of poverty as “state of need” must make clear how it is possible to understand what is necessary for us and to identify those who pretend or choose to be needy. 2. Sen’s Account of Poverty Sen has devoted much of his work to the analysis of these problems and the answers he has given are considered a fundamental part of welfare economics. In order to solve the problems we have faced before, his approach starts with different assumptions from those held by mainstream economics. The first assumption concerns the concept of deprivation. According to Sen, poverty is not a matter of deviation from a conventional line, but it is an absolute lack of opportunities. This is clear, since the outlook on poverty as gap from the medium income faces three problems. First of all, it does not recognise the fact that when there is starvation, then there is hunger and poverty no matter how low the medium income is. This point implies that poverty does not coincide with equality, since we may be equally poor.10 Moreover, if we consider poor all those below the line of poverty, we are not able to assess distribution of wealth among deprived people, we cannot identify “the poorest of the poor”. In other words, it is impossible to know how wide the gap is between the less and the most poor.11 Suppose that the line of poverty is A 500 per month. According to this account, when we analyse poverty we must simply aggregate the number of all those who have an income below this line, no matter how much lower this income is (A 450, A 400, A 300). This lack in analysis, finally, has a result in social policies: government concentrates its efforts towards those who are less poor than others, so that the number of deprived peo8 This may happen when the state of need is addressed through cash benefits. I can pretend to be needier, or I can keep with harmful conduct in order to get financial benefits. 9 On the concept of “expensive taste” and the wide issue of justice and responsibility for one’s choices see Dworkin, 1981, Cohen, 1989 and 1993, Kymlicka, 1990. 10 Sen, 1984, 329–332. 11 Sen, 1992, 103.

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ple falls. This is clearly unacceptable, since it leaves the poorest unhelped.12 Therefore, the analysis of deprivation must be refined in order to make policymakers aware of the complexity of this phenomenon; only then can the needs of the poorest be fulfilled. The second assumption concerns the currency of poverty, how we can assess degrees of deprivation. Sen shows that income and preferences are not reliable data when we deal with measurement of individual states of affairs. He offers two cases. Often, some deprived people cannot command their income. Let us think of women who suffer permanent discrimination. They do not control their income, since this sum is added to incomes earned by other members of the family and it is spent according to the will of the household, which is usually male. In this case, those women may not be considered poor, as their income is not below the poverty line, even though they do not control what they earn.13 Moreover, we can have data, like the high rate of morbidity and death in urban ghettos in USA, that prove that it is possible to be “poor in affluent society”. In other words, certain communities may have an income higher than other groups in other countries, but have a lower life expectancy or a lower level of literacy.14 Are preferences, then, a better indicator? According to Sen, no, as permanent discriminations can bring about the same results. Suppose we consider poverty as a subjective state of deprivation that can be detected through opinion polls. It is the case that people permanently deprived are not aware of their low standard of living and they are so used to this situation that they are not even able to consider any alternative. In other words, they tend to form preferences and desires according to a state of deprivation, they start to get “grace from small mercies”. It is the case of “adaptive preferences”, the circumstance that we do not form our ordering of preferences out of the void, but on the basis of our cultures that can be discriminatory.15 3. Social Policies and Assessment of Deprivation Sen’s theory of poverty has important implications in the field of social policies. According to him, if governments want to avoid the problems above epitomised (adaptive preferences, extreme deprivation, free riding, paternalism) they should undertake three steps. First of all, in order to avoid the risk of relying on adaptive preferences when we assess a state of deprivation, the success of policy measures must be assessed through empirical data concerning recipients’ states of affairs (literacy, 12 13 14 15

Ivi, 105. Sen, 1995, 265. Sen, 1992, 114–116. Sen, 1990, 126–127.

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morbidity, mortality, access to jobs). These data are an index of the availability of certain opportunities. They confirm a descriptive judgement: that certain people are able to do certain things (e. g. reading and writing). These opportunities are available not when individual preferences, that conceal a condition of discrimination, deprivation and the like, are satisfied, but when an objective state of affairs has occurred (e. g. a high rate of literacy).16 Analysis of poverty, then, must rely on the poor’s states of affairs: what people do with their income or what they enjoy of a service (e. g. public health). This is what Sen calls “functioning”, the objective description of what a person does or enjoys with something he or she is entitled to, regardless of his or her preferences. A person, then, can be deprived in terms of functioning (since the morbidity rate is high), even though he or she feels happy or has a high personal income. However, how can we be sure that policies can reduce poverty? Is it enough to pour resources on the recipients? We saw that it is often not the case. We can lavish resources that do not enhance the standard of living of a population if those people form their preferences in an adaptive way. In fact, resources are used in a way (e. g. they are given to the male household) that tends to perpetuate the discrimination that is a cause of deprivation. On the other hand, resources can be not only given but also accumulated or changed with other goods. In other words, we can have the interest of pretending to be needy in order to get more benefits. If we want to avoid these risks, it is necessary to provide in-kind benefits, instead of in-cash. The former give more opportunities of enhancing the objective standard of living than the latter, as these benefits cannot be transferred; therefore, we do not satisfy adaptive preferences. Moreover, the risk of free-riding is reduced, since we cannot accumulate in-kind benefits.17 Finally, the shift in poverty analysis does not affect only the diagnosis of the phenomenon, but it sheds light on an assumption in the moral background of social policies. When government gives benefits to the poor it does not aim only at realising certain functionings, but it strives to make people free to choose between these functionings. The choice between these states of affairs (what people do or enjoy with something) is what Sen calls “capability”. This is exactly what lies at the core of a policy that can be morally justified: to open opportunities to people. Poor is not the person who cannot enjoy a state of affairs but who cannot decide to enjoy it or not. Poverty, then, is an objective lack of capability, a deprivation of opportunities to have or to do something.18 If we do not want to leave governments as ultimate judge in valuing social 16

Sen, 1999, 62–63. Sen, 1997, 94. We must assume, however, that in-kind benefits are tailored in such a way as to be used only by the recipient, otherwise they can be transferred. 18 Sen, 1999, 86–92. 17

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welfare, the problem of poverty must be conceived as the question of the failed exercise of individual rights, not only welfare, but also civil and political rights. In fact, civil and political freedoms have an essential role in assessing a state of deprivation, as they make people able to express what it is that really concerns them, what Sen calls “freedom as medium of information”.19 This outlook on poverty seems to overcome the problems epitomised above. An essential role is played by the link among deprivation, opportunity, and individual rights. In order to have an objective account of deprivation we must consider it as a lack of opportunities not to be poor, as failed realisation of certain states of affairs. Thus, if we agree on an index of relevant opportunities (literacy, health, access to jobs, etc.) we can diagnose “objectively” if a person is poor, no matter how high or low medium income is and regardless of individual preferences. This is exactly what other accounts of poverty cannot do. Moreover, these opportunities are to be considered as the object of individual rights, not only welfare but also civil and political rights, as without the guarantee of these rights we cannot say that development takes place, or that a policy reduces deprivation. In fact, even assignment of in-kind benefits can be influenced by permanent inequalities (e. g. different facilities and access to education according to gender, race, or ethnic origin) that bring about poverty. According to the cases offered by Sen, which show how diffusive discrimination may be, these inequalities can barely be redressed if we leave government as final judge of what constitutes poverty and how we can reduce it. Freedoms, then, are “instrumental” to development in the sense that they are necessary conditions for the reduction of poverty and the enhancement of the standard of living.20 Therefore, the thesis of the inescapable conflict between economic achievements and the guarantee of human rights is to be rejected.21

19

Sen, 1996, 162. Sen, 1999, 152–154. One can criticise this identification between capabilities, as opportunities, and moral rights. I do not think that this issue can be handled here in depth since it could bring us far from our discussion. I limit myself to scattered observations relevant to the topics. If opportunities were considered as different from moral rights, then we would talk only about social morality (what people owe to each other) but we would not face the issue of the duty of government towards citizens. However, for the sake of the criticism, let us think of capabilities, or opportunities, as something different from moral rights, something to be considered worthwhile even in non-liberal communities. If this were the case, then it would be difficult for Sen to sustain that rights are necessary instruments in order to reduce poverty. On the necessary connection between the concept of capability and the term “individual right” see Biondo, 2003. 21 I do not introduce Sen’s theory of development, since it would bring us too far from our topic. 20

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4. Poverty as Lack of Capabilities: Descriptive Analysis or Normative Approach? Sen’s theory of poverty as lack of opportunities and failed exercise of rights faces three problems. The guarantee of certain opportunities can be considered the object of a set of rights only if we start with a conception of “rights as benefit”. According to it, an individual X has a right when someone else (Q) has a duty to perform an act (or omission) which is in X’s interest, independently of X’s preferences. This theory, then, justifies a right insofar as it protects a certain interest that is of paramount importance according to an objective value. The instances of such rights are those called “welfare rights” or rights that imply a “duty of intervention” (e. g. the right to health). On the contrary, according to a “choice based theory of rights” X has a right when he or she enjoys a sovereign choice over some alternatives no matter if other people consider the object chosen as bad or repugnant.22 Civil rights (freedom of expression, freedom of conscience, secrecy of correspondence, etc.) epitomise the type of claims that lies at the core of this conception of rights. It is clear that a theory that starts with an “objective account of poverty” implies the former conception since it considers individual choice (better, the fact that somebody has got what has chosen) not as the proxy of a worthwhile state of affairs. In fact, a preference is to be taken into account only if we are sure that certain needs are fulfilled, otherwise we run the risk of leaving a situation of “hidden poverty” untouched. In other words, a choice-based theory of rights implies the so-called “right to do wrong” (i. e. not to take care of his or her health). This choice, however, can always be blamed on being a result of “adaptive preferences”. Hence, these interests are relevant as such, not insofar as they are required in a community. The objectivity of needs, hence, clashes with a choice-based theory of rights, since the latter considers the right bearer as the person who has the power to claim the performance of a duty or to discharge the duty bearer from the requirement.23 If we think that a person has the choice to decide whether or not he or she wants his or her needs fulfilled, we weaken the objective character we attribute to needs when we diagnose poverty. Thus, if we accept the distinction between these two conceptions of rights we could say: it is false that people have the right not to be poor (which entails the right to remain poor); by contrast, the government has the duty not to let people be 22 On the difference between “choice-based” and “interest-based” theories of rights see Waldron, 1984, 9–12. 23 However, it does not mean that a choice-based theory of rights implies forms of conventionalism or moral subjectivism, since we can consider as objectively worthwhile the domain of a choice, even though what is chosen is wrong. On this difference see Biondo (forthcoming).

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poor. Sen’s theory of poverty as lack of opportunity hides a conflict between different conceptions of rights. What is the matter with that? The problem for Sen is that this conflict opens a second puzzle for a theory that tries to identify poverty with a failed exercise of rights. This objective account of poverty (deprivation as failed exercise of rights, as lack of opportunity) brings about a confusion between the theoretical and the normative inquiry. In Inequality Reexamined Sen does not consider poor those people who voluntarily choose not to take advantage of an opportunity, such as those who choose to fast.24 This position has clearly the merit of drawing attention to the differences between cases of chosen deprivation and cases of unwilling poverty. Behind his account of deprivation hides, however, a moralised conception of poverty: someone is poor only insofar as he or she deserves to be helped. This is clearly a theoretical fallacy insofar as it shifts the analysis of a phenomenon with a moral evaluation: the person x is poor because he or she squandered his or her assets, therefore he or she must not be helped. This could not be a problem for an economist who accepts that when we assess poverty we start with supposed objective moral judgements (e. g. certain choices are morally wrong because they increase the risk of leaving the person poor). However, this is difficult to sustain because such a principle needs an agreement on every element that causes and maintains a state of deprivation, especially when we consider poverty as a concept that entails a large number of opportunities. Suppose health is considered a relevant opportunity, how many are the elements that can potentially endanger or reduce the chance of enjoying this state of affairs? Furthermore, as Sen himself recognises, we can prefer some opportunities at the expense of others, according to our social attitudes.25 In this case certain governments may see medical coverage as a basic right, while others can see different opportunities as more important (i. e. basic education, low unemployment). If this line of reasoning is right, the objective account of poverty as lack of relevant opportunities must accept that a relativist approach, such as “poverty as fraction of the medium per capita income”, is more “descriptive” and “objective” than Sen’s account. His approach, in fact, relies on a set of moral judgements about relevant opportunities that are not objective but relative to social and personal attitudes. Thus, Sen mixes up two different senses of the term “objectivity”: one is descriptive, the other one is prescriptive. We could say that in order to explain what a state of deprivation is he ends up explaining why it is bad to be in such a state according to certain attitudes. Of course it is not correct to say that a state of need consists in a lack of income, but it is still to be proven whether the relevant opportunities are objectively or simply conventionally worthwhile. 24 25

Sen, 1992, 111–112. Sen, 1999, 96–98.

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Moreover, poverty, as failed exercise of capabilities, does not consist of empirical observations and this is admitted even by Sen himself: “the capability set is not directly observable, and has to be constructed on the basis of presumptions”.26 But then, if capabilities and functionings are indexes of morally relevant phenomena, when we presume that they are not exercised, are we producing a moral evaluation or a descriptive analysis of a state of affairs? In other words, how can we say that a society with high life expectancy is less poor than one with a lower life expectancy but with a high rate of unemployment? The question is not only conceptual (How can we spot elements and choices that cause poverty?) but normative as well: when we do not have an agreement on what causes poverty we may face a deadlock situation that lies at the core of the third problem. If poverty is a lack of opportunity, when we measure the intensity of deprivation we must assume that people have the same ordering of preferences about those opportunities. Otherwise, our policies are doomed to failure: we pour resources on recipients who do not consider those opportunities as worthwhile. This is a problem when we start with an “objective account of poverty”. This account tries to cope with the question of adaptive preferences: some people are poor, even though they do not realise it. Nonetheless, this outlook may turn out to be too strict in multicultural societies. Suppose that women in a community prefer staying at home, instead of going out to work. According to a certain index of poverty, they suffer a lack of opportunity, since the number of them who go out to work is extremely low. Thus, we are in a deadlock: either we accept that they are not poor, since we see that they do not take advantage of that opportunity, or we assume that they nourish adaptive preferences and we undertake coercive measures in order to make them less poor. If we accept the first alternative, we should admit that poverty does not coincide with failed exercise of opportunities when people do not consider them as worthwhile. In fact, opportunities are not observable, what we observe are individual behaviours, what a person does about an opportunity, that may be influenced by discriminative cultures. But then, if we accept the latter alternative, since we are sure that those women who do not go out to work are discriminated against, then we run the risk of implementing coercive policy measures (i. e. mandatory enrolment in jobcentres). 5. Concluding Remarks These points, in my opinion, shed light on a tension between the conception of poverty as “objective lack of opportunities” and the theory of “rights as benefit” which lies beneath. However, this is not the only way we can conceive a 26

Sen, 1992, 52.

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right: according to a choice-based theory of rights, we can take advantage of an opportunity, but we can also squander our assets. A conception of right as benefit does not consider this a morally acceptable alternative. Government has the duty to help people in having certain worthwhile opportunities; however, if they do not like them, then they have no right. Therefore, this point is clearly in contradiction with a choice-theory of rights. According to it, we have rights even if we recognise certain decisions (e. g. choosing not to work, squandering our assets, exercising dangerous sports) as unreasonable or stupid. This tension, thus, jeopardises the use of Sen’s account of poverty in measuring and reducing states of deprivation. If somebody does not like the opportunity the government provides, then he or she is not poor. Hence, Sen’s theoretical account of poverty is to some extent a “moralised one”. Objective assessment of a state of deprivation, then, does not coincide with description, since it implies a moral judgement on wrong and right choices. Moreover, this assessment depends on social and individual attitudes towards trade-offs among opportunities. Therefore, it is not true that Sen’s account is not a “relativist” approach to the analysis of poverty. Finally, his account may turn out to be normatively unacceptable for many liberals, since it could implement coercive measures in private spheres. Sen faces, then, a difficult situation: if he keeps on considering poverty as a matter of failed exercise of rights, he must provide a list of goods that must be guaranteed by the government. This brings about the problems of observation (when one chooses freely to lavish his or her assets?) and implementation (what to do with a person who does not want to use the benefits the government provides?) I epitomised before. On the other hand, if he decided to restrict the list of rights, then his approach could turn out to be not much different from the one offered by “mainstream economics” and it would leave unsettled cases of adaptive formation of preferences. However, I do not think that Sen’s theory should be rejected as a whole. On the contrary, it is possible to fine-tune this account of poverty. First of all, it is necessary to make clear the role of rights: if they are used as descriptive concepts or as norms. Sen’s remarks are important, since they shed light on two points: (1) Poverty is not a matter of entitlement of resources, but it is a consequence of their use. (2) Poverty coincides often with infringements of individual rights. However, these points are plausible only if we assume that this use of the term “rights” does not imply a positive or negative evaluation of individual choices. In other words, I can be considered responsible for the fact that I lavished my assets. This, however, does not mean that I am not poor, nor that I am

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not entitled to any benefit.27 In order not to shift the analysis from a description of the phenomenon to an evaluation of individuals’ ways of life, to a moralised conception of poverty, it is necessary to keep this distinction clear. Second, Sen’s outlook needs to clarify the role of individual or social preferences in the assessment of public policies. If communities have different attitudes towards certain opportunities, their protection through individual rights can be fruitful only by accepting the limited scope of these policies. Government cannot ask for an enforcement of certain assumptions (such as the one that considers unemployment as an indication of poverty) through law, since it can be blamed for being paternalistic. This does not mean that these policies would be illegitimate, but simply that they need a different justification. Such a justification might be the requirement of fairness among cultural communities, the fact that benefits to poor are paid by people with different preferences. Therefore, we would deal with a problem of fairness and not with a matter of enforcement of individual rights. Maybe, before saying what we owe, in terms of individual rights, to poor people we should know how we should treat each other. Thus, we could realise that the term “individual right” hides different or even opposite ways of dealing with people in need. References Biondo, F. (2003), Benessere, giustizia e diritti umani nel pensiero di Amartya Sen, Torino: Giappichelli. – (2005), Two Types of Perfectionism, Ratio Juris, 18, n. 4. Cohen, G. A. (1989), On the Currency of egalitarian Justice, Ethics, 99. – (1993), Equality of What? On Welfare, Resources and Capabilities, in Nussbaum/ Sen, 1993. Dworkin, R. (1981), What is Equality? Part 2 Equality of resources, Philosophy and Public Affairs, 10. Elster, J. (1984), Sour Grapes. Studies in the subversion of rationality, Cambridge: Cambridge University Press. Elster, J./Skog, O. J. (eds.) (1989), Getting Hooked: Rationality and Addiction, Cambridge/New York: Cambridge University Press. Kymlicka, W. (1990), Contemporary Political Philosophy. An Introduction. Oxford: Oxford University Press.

27 I must point out that, in order to avoid the risk of free-riding, benefits provided to people who are responsible for their state of deprivation must be less than those given to people who fell into poverty due to bad luck.

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Mele, A. R. (1987), Irrationality: An Essay on Akrasia, Self-Deception, and Self-Control, Oxford/New York, Oxford University Press. Nussbaum, M./Glover J. (eds.) (1995), Women, Culture and Development. Oxford: Clarendon Press. Nussbaum, M./Sen, A. K. (eds.) (1993), The Quality of Life, Oxford: Clarendon Press. Scanlon, T. M. (1975), Preference and Urgency, Journal of Philosophy, 72. Sen, A. K. (1983), Poor, Relatively Speaking, Oxford Economic Papers, XXXV. – (1990), Gender and Cooperative Conflicts, in Tinker (1990). – (1992), Inequality Reexamined, Oxford: Clarendon Press. – (1995), Gender Inequalities and Theories of Justice, in Nussbaum/Glover, 1995. – (1996), Legal Rights and Moral Rights: Old Questions and New Problems, Ratio Juris, 9, n. 2. – (1997), On Economic Inequality. Enlarged edition with a substantial annexe: On Economic Inequality after a Quarter Century, Oxford: Clarendon Press, II ed. – (1999), Development as Freedom, Oxford: Oxford University Press. Streeten, P. (ed.) (1981), First Things First: Meeting Basic Needs in Developing Countries, Oxford: Oxford University Press. Tinker, I. (1990), Persistent Inequalities, Oxford: Oxford University Press. Townsend, P. (1979), Poverty in the United Kingdom, London: Allen Lane and Penguin Books. – (1985), A Sociological Approach to the Measurement of Poverty: A Rejoinder to Prof. Sen, Oxford Economic Papers, 37. Waldron, J. (ed.) (1984), Theories of Rights, Oxford: Oxford University Press.

Poverty and Access to Justice: Rethinking Legal Aid Models* Isabel Fanlo Cortés Before the Law stands a doorkeeper. To this doorkeeper there comes a man from the country and prays for admittance to the Law. But the doorkeeper says that he cannot grant admittance at the moment. The man thinks it over and then asks if he will be allowed in later. “It is possible,” says the doorkeeper, “but not at the moment.” Since the gate stands open, as usual, and the doorkeeper steps to one side, the man stoops to peer through the gateway into the interior. Observing that, the doorkeeper laughs and says: “If you are so drawn to it, just try to go in despite my veto. But take note: I am powerful. And I am only the least of the doorkeepers. From hall to hall there is one doorkeeper after another, each more powerful than the last. The third doorkeeper is already so terrible that even I cannot bear to look at him.” These are difficulties the man from the country has not expected; the Law, he thinks, should surely be accessible at all times and to everyone. (Franz Kafka, “Before the Law”, The Penal Colony: Stories and Short Pieces, Schocken, New York, 1961) Legal Aid is regarded as a deus ex machina, which, if only correctly assembled, restores equality to the legal system. (P. Alcock, Legal Aid: Whose Problem?, “British Journal of Law and Society”, 4, 1976, p. 165)

1. Introduction The complex question of access to justice, henceforth used in the narrower sense of access to courts,1 lends itself, as is evident, to various interpretations, destined to assume particular characteristics when considered in the light of the * I am grateful to Mauro Barberis, Silvana Castignone, Pierluigi Chiassoni, Paolo Comanducci, Giulio Itzcovich, Pablo Moreno, Francesca Poggi and Mariangela Ripoli for their comments and suggestions.

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economic and social disadvantages that typify the poor, or as they are often termed by legislators, the ‘non affluent’ people.2 A possible approach to the problem is suggested by the title itself of the panel in which this paper is presented, which by associating poverty with the lemma fundamental rights calls to mind the reciprocal implications between the themes of access to courts (understood as access to judicial protection) and fundamental rights. These implications are apparent at the institutional level, given that in the majority of modern legal systems, the possibility3 of applying to a court to have rights protected is included among the so-called fundamental rights – sometimes by express constitutional provision (a case in point being article 24 of the Spanish Constitution) but more often by interpretation.4 But they are also apparent at the theoretical-general level, where in the context of discussion on the relationship between rights and their guarantees,5 the feasibility of jurisdictional remedy (as an instrument typical of, but not exclusive to, 1 Therefore falling outside the range of analysis is the broad theme of extra-judicial instruments for access to justice. I refer to the wide array of ‘alternative’ solutions extraneous to the institutional context of the Courts and today high on the agenda of the theoretical and political debate. 2 Throughout this paper, by ‘poor’ is meant a person defined as such by the various national legislatures (albeit using less pejorative synonyms) and therefore as eligible for free or partly free access to legal aid services. To be noted is that the legislative definition of ‘poor and poverty’ is generally based on two alternative criteria. Either the definition of ‘poverty’ is based on an objectively fixed criterion concerning income alone, without account being taken of other variables (and this is the solution generally adopted by Italian legislation), or it assumes a relative character by considering as relevant to the definition, besides the person’s economic circumstances, also the cost of the trial and other possible variables. Partly free access to legal aid services, where provided for (in France, England, Sweden and Germany), and the power conferred on the judge (for example, in France) to grant exceptional access to legal assistance (free or partly so) also to those whose incomes exceed the legislatively established threshold, act as correctives to the two above-mentioned criteria, while also serving to rationalize overall demand for legal assistance. 3 Interpreted not only ‘in negative’ as the absence of external impediments but also ‘in positive’ as the availability of means. 4 As regards the international level, it is worth noting that ‘access to justice’ is not a term explicitly used by international human rights instruments in their provisions, although some elements of it are expressly considered (consider for example Article 6 of the European Convention on Human Rights): see Cousin 1992; MacBride, 1998; Harlow, 1999. If we refer to the European context, perhaps the only exception is the recent Charter of Fundamental Human Rights adopted by the Nice European Council on 7 December 2000, which, in the third clause of Article 47 (Right to an effective remedy and to a fair trial), expressly establishes that: “Legal aid shall be made available to those who lack sufficient resources in so far such aid is necessary to ensure effective access to justice”. 5 At least as regards Italy, in recent years this discussion has been the subject of renewed interest, thanks also to the seminal contribution by Luigi Ferrajoli and his 1998 essay “Diritti fondamentali” (Ferrajoli, 1998), which gave rise to animated debate. See in this regard the papers collected in Vitale, 2001.

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the protection of rights) is often viewed not only as a condition for the effectiveness of rights but also as the premise for their legal (not merely moral) existence6 (ubi remedium, ibi ius). However, this paper takes a different – and in certain respects ‘specular’ – point of view with respect to the one that addresses the problem of access to courts in terms of a constitutional guarantee granted to all individuals and as (at least) a condition for the effectiveness of rights. The purpose of this paper instead is to call attention to the evolution and main features of the political models developed in response to the access to courts by the poor. The expression ‘models’, with its deliberate ambivalence, refers both to the concrete institutional solutions adopted to implement a certain policy, and to the normative proposals on which those solutions are based. An analysis of the kind conducted in this paper, whose main referents are the Western legal systems, is conditioned by an underlying assumption which is difficult to confute empirically: namely that the strategies adopted at the levels of both principles and legislative policy to facilitate access by the poor to courts have tended to rely less on ‘intrasystemic’ measures (in order to simplify legislative language and court procedures and to reduce court fees), than on ‘external’ remedies based on the provision of expert help. Accordingly, in the next section I shall examine, albeit inevitably in outline, the main models (in the sense indicated above) in which these strategies have found historical expression. To this end, I shall use a quite well-known classification which, by distinguishing among charitable, judicare, and combined systems, is based on the manner in which expert help for the poor is funded and staffed. Among the various issues – normative (for example, issues of political legitimacy and the role of the State) and more strictly sociological (the development of welfarism and the impact of cultural traditions in different societies) – that an analysis of this kind usually addresses, I shall concentrate on one in particular, for I believe it to be paramount for understanding the models analysed and their most recent evolution. I refer to the role performed (or which should be performed) by the professional figure of the lawyer in solving the problem of access to courts by the poor.7

6

Thus, according to the ‘realist’ thesis: cf. for instance Guastini, 1994 and 1996. Here and henceforth I use the term ‘lawyer’ in a broad and generic sense which comprises all three roles traditionally associated with the figure of the lawyer: that of mere ‘representative’ or interest advocate (well exemplified by the old French avoué or the British solicitor), that of the technical expert or consultant, and that of the defence counsel (the British barrister, or the French avocat before the reform of 1971). 7

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2. The Evolution of Legal Aid Models: Some Solutions and their Problems Awareness that one of the main obstacles separating the citizen from “justice” is economic in nature (although a substantial role is obviously played by other barriers as well8) is not a historically recent perception. On the contrary, it has accompanied the organization and administration of justice since their rudimentary beginnings. Equally long-standing is the idea that the justice administered by courts – with its expressive forms so difficult to construe (for both rich and poor) – requires some intermediary able to manoeuvre among the intricate ramifications of legal jargon and to act as a linkage between the organs of justice (judges in particular) and the recipients of their decisions. And because this so-to-speak ‘intermediative’ activity has its costs, the main problem of the poor in search of justice – or conversely of those who are pursued by it – has always been identified in and encapsulated by (according to some in a reductively biased manner) the expression “legal aid”. As I shall try to show, “legal aid” is a vague expression which, in the course of time, has become typically associated with a specific legal institution. The term is used in a restricted sense to refer almost exclusively to the free provision of legal assistance or defence in proceedings by professionals (lawyers). But it is also employed in a broader sense to allude – especially in normative discourse (in some cases translated into legislative terms: this being, as we shall see, the case of England) – to that wide array of free legal aid services for the needy which comprises legal education, advice, assistance, representation, and defence before courts.9 Whatever the case may be, it is a key reference which despite its ambiguity, or perhaps precisely because of it, has enabled the focus to be trained on the ways in which the Western legal systems have traditionally addressed the issue of access to justice by the poor, while at the same time endeavouring to solve it, given that, without excessive contrivance, the different meanings of “legal aid” can be used to trace the evolution of institutional responses to that problem.

8 Besides ‘economic poverty’, in fact, there is also the ‘organizational poverty’ defined by Cappelletti (1994, 81) as the obstacle of organizational nature impeding protection of subjective juridical situations in certain respects atypical with respect to the individualist scheme that shapes the traditional rules and institutions of trial law (one thinks in this regard of so-called ‘collective’ or ‘diffuse’ interests). There is, furthermore, the specifically procedural obstacle whereby certain traditional types of procedure are unable to provide protection, thereby creating space for ‘alternative’ solutions. For obvious reasons, here I am concerned with the first type of obstacle, the economic one, to which only contingently do the organizational and procedural ones add themselves and overlap. 9 See for instance Legal Action Group, 1982.

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When examined through the lens of “legal aid”, the problem of access to courts by the less well-off raises, at both the practical and justificatory levels, at least three kinds of questions: (a) Who should pay for the costs of legal aid (and why)?; (b) In what form and with what instruments should they do so?; and (c) Who should be the users of the service, and on the basis of what criteria should they be identified (in short, who are ‘the poor’)? 2.1. The ‘Charitable’ Model With regard to the first kind of questions (discussion of which involves the other two as well), it is generally believed that access to justice pertains to the public sphere. Hence, it is the State that should assume the costs of justice for those with insufficient means to provide for themselves. However, this belief is historically and ideologically conditioned and today is severely tested by policies to restrict the welfare State. In reality, the first historical manifestations of legal protection received by the poor came from the spontaneous charity of private individuals. During the Middle Ages, for example, legal aid, like other assistance to the miserabiles personae of Christendom, was a form of charity furnished mainly by the Church and by the Christian faithful as a pious duty. There was no lack even then of signs of the ‘institutionalization’ of such protection into more secular form, but they concerned temporary measures resulting from the somewhat sporadic personal charitable impulses of lords and kings motivated by a paternalistic duty to support the oppressed.10 They were far removed from the modern idea of State aid, an idea that would not even have been intelligible before the advent of the modern State. Rather surprisingly, however, the ‘charitable’ connotation that initially attached to legal aid tenaciously survived the passage of time and was able to resist the political and social upheavals that marked the eighteenth and nineteenth centuries. The principle of the gratuité de la justice proclaimed by revolutionary France in 1790 soon proved illusory, and in the latter half of the nineteenth century legal assistance to the poor was subject to specific legislation which established under the aegis of the Rule of Law the benefit to be given, and the class that was to receive it. This at least was what happened in the Western world, and in particular in the United States after the Civil War, in France after the revolutionary movements of 1848, in England after the Reform Bills, and in Germany and in Italy after national unification.11 In substance, however, these legislative 10 11

Cf. Cappelletti/Gordley/Johnson, 1975 for references. See also Friedman, 1979. For deeper historical details see Cappelletti, 1975, 16 ff.

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measures were all based on the same mechanism as adopted in the Middle Ages – namely, the assignment to the needy of private lawyers who should plead without receiving recompense from either their clients or the State. Thus, despite the innovation of giving juridical formalization to the problem of legal aid, so that access to legal services was guaranteed by the force of positive law for all members of a defined class of the poor, the nineteenth-century legislators did not substantially diverge from the conception of legal aid as charity which had typified the Middle Ages. An explanation for this may be that a decisive role was played by the influence exerted on the political thought of the time by the doctrine of natural rights, and by the conception of justice that it subsumed. As is well known, this doctrine viewed justice as the preservation of the natural rights of man from encroachment by the State or by fellow citizens, and thus demanded that all men should have access to courts where their rights would be protected. But as the French discovered after a failed attempt to abolish their bar, and as the Americans found from similar colonial experiments before their revolution, access to courts hardly meant that the service of lawyers could be dispensed with. Yet for the State to provide these lawyers – by paying either public or private attorneys to serve the poor – would have set it at odds with the contemporary conception of how rights are to be protected. According to this conception, ‘natural rights’ do not require affirmative State action for their protection; on the contrary, they are ‘natural’ rights because they are prior to the State itself and are preserved when the State does not act to infringe them and refuses to allow encroachments by the actions of others. We may consequently conclude that the markedly ‘charitable’ component of the legal aid solution in the nineteenth century, with its reliance on the gratuitous services of the legal profession, was in a certain sense instrumental to the principle of excluding the State as far as possible from the lives of citizens.

2.2. The ‘Judicare’ Model In the century that followed, the superseding of the purely formal conception of equality embraced by nineteenth-century liberal thought, together with the rise of the welfarist impulses incorporated into modern constitutionalism, gave rise to the opposite tendency. The emphasis was now on the role of the State in accomplishing ‘substantial equalities’ through measures to remedy economic and social disparities. This change of perspective also affected the problem of how to provide the poor with access to justice by means of legal aid. After the Second World War, in fact, the legal aid system underwent a period of intense legislative revision. Although the underlying rationale was left unaffected (it remained substantially that of furnishing the services of a lawyer to those unable to afford one), there was a tendency to transfer the financial onus of remunerating the ‘lawyers of the poor’ to the State, which in some cases employed

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them on a par with civil servants (the so-called ‘salaried staff attorney’ model adopted in the United States and later in France), or in others utilized them as a private professional corps (the ‘compensated private attorney’ model adopted in England). This new model of legal aid (widely known as the ‘judicare system’) was introduced almost everywhere, first in the UK, the Netherlands, the USA, Canada, Sweden, and Australia, and then in the rest of Europe.12 It also brought with it an endeavour to extend the compass of legal aid beyond the traditional boundaries of criminal and matrimonial cases, and also, from the subjective standpoint, to expand the class of the ‘poor’ that were eligible for legal aid. The exception to this wave of institutional reforms was Italy which indeed continued to be an anachronistic example of a typically nineteenth-century conception of legal aid.13 Yet, paradoxically, it was precisely in Italy that there began in the 1970s the broad movement of thought of international reach which, under the impetus of a group of leading exponents of Italian legal culture,14 undertook an ambitious project for the study and reform of access to justice.15 The inspiration for the undertaking was the idea that if “rights were to be made effective, that is, accessible to all”,16 the active intervention of the State was indispensable. At the institutional level, however, after animated debate in the Constituent Assembly on what formulation should be given to the future article 24, clause 3 of the Constitution17 – and therefore to the possible model of legal aid compatible with it18 – the decision was taken to maintain the view adopted by the Fascist legislature in 1923 (which in its turn reached back to the ‘Legge Cortese’ of 1865). The latter conceived the provision of legal aid (gratuito patrocinio) as an “honorary and obligatory duty” of the legal profession and stipulated that lawyers must act for the poor if called upon to do so and without receiving fees for the service rendered (unless, and only in civil cases, their client prevailed and costs were recovered from his opponent).

12

See the collection of essays edited by Regan et al., 1996. See, in a critical perspective, Denti, 1980 and 1988; Cappelletti, 1968 and 1977; Chiarloni, 2001. 14 Most notably Mario Cappelletti. 15 The results of this study and research, also with a view to reform of access to justice, were set out in a monumental six-volume work edited by Cappelletti and published in 1978–79. Around one hundred jurists, sociologists, economists, political scientists, and psychologists from the five continents contributed to the work, generally known as the Florence Access to Justice Project (See the review by Denti, 1982 and the partial French translation by Cappelletti/David, 1984). 16 See Cappelletti/Garth, 1978. 17 Article 24, clause III of the Italian Constitution establishes that the poor are entitled by law to proper means for action or defence in all courts. On the genesis of this provision see Pizzorusso, 1967; Trocker, 1995; Cipriani, 1999. 18 See Camoglio, 1970; Gallo, 1990; Rodio, 1991. 13

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This legislative solution survived exemplary censure of Italy by the European Court of Human Rights (Artico v. Italy, 198019), and it was strenuously defended by a Constitutional Court very fearful of the normative vacuum. As a consequence, it remained in force – at least in civil proceedings apart from some minor adjustments – until two years ago.20 However, the judicare legal aid model, which in Italy too (albeit belatedly) has led to the dismantling of the previous charity-based system, is the same model that elsewhere has caused much dissatisfaction, and has disappointed the perhaps overly optimistic hopes of its supporters. Like its rise, also the decline of the publicly-funded legal aid system in the advanced capitalist countries is amply documented in the literature with analyses and statistics. Various explanations have been put forward for this decline, all of them relating to a greater or lesser extent to the much-discussed crisis of the welfare State, from which not even the justice system has been immune. Anyway, there is one aspect that seems difficult to dispute: the rhetoric of equal justice embodied in the model of State-funded legal aid has been forced to reckon with the shortage of available resources. To simplify, the concrete cases that have arisen are almost always one or the other of the following: either the public funds invested have not been sufficient ab origine to ensure the functioning of the system (which sadly seems invariably to have been the fate of the Italian system); or ‘no expense has been spared’, so to speak, but in this case the excessive burden on the State – mainly due to the growth of demand – has compelled national governments to drastically reduce expenditure, with a consequent reduction in funding for lawyers for the poor, the curtailment of services, and, above all, the restriction of eligibility for free legal assistance. This last case is well illustrated by England, which in the 1950s introduced a legal aid system which won praise both for the large sums of money allocated by the government,21 and for the wide range of services delivered. However, a combination of factors – most notably increased demand for the service and exponential growth of legal expenditure with respect to the inflation rate – has gradually brought the system to the point of breakdown. Its funding requires levels of spending judged excessive by the tax authorities, and the service is only available to an increasingly smaller segment of the population. In England as elsewhere, in fact, one of the most evident signs of the crisis of the judicare system (or perhaps the one with the greatest repercussions at the social level), 19 European Court of Human Rights, 13-5-1980; Series A, No. 37. On this cf. Pizzorusso, 1980. 20 For a recent study on the theme see Scarselli, 2003. 21 Estimates in 1988 put the figure at proportionally 17 times more than ever spent on legal aid in the United States, and around 8 times more than expenditure in France and Germany. For a reasoned comparison among funding provisions for legal aid programmes for the poor in the main Western democracies see Justice E. Johnson, 2000.

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besides being the outcome of ‘restrictionist’ policies, has been the gradual shrinking of the system’s range of application.22 Close restrictions set on eligibility have excluded from the service the so-called ‘forgotten class’: that large section of the middle class too affluent to qualify for legal aid but too poor to afford a trial and a lawyer (especially in countries like England where the latter are very expensive). 2.3. Towards a ‘Combined’ Model In the more ‘advanced’ systems, where publicly-funded legal aid has already come to terms with its difficulties, the strategy to resolve the crisis – adopted in several countries of both civil and common law traditions – is to resort to what is today termed an ‘articulated’ and ‘pluralistic’ response. A response, that is to say, which, with a view to ‘rationalizing’ demand for legal aid on the one hand, and to curbing public expenditure on the other,23 seeks institutionally to involve a broad array of actors (although in the majority of cases these are still lawyers) in the delivery of legal aid services to the needy – also externally to the courts. Predominant in this ‘involvement’ strategy is the use of “private” instruments, which, for that matter, is entirely consistent with the ideology of ‘integrated welfare’ and its intent to give private actors a socially active role.24 Increasing use is thus made of private insurance arrangements for legal defence. Indeed, insurance schemes were tried as early as the first decades of the last century in a number of continental European systems (including Italy’s, with its traditional suspicion of insurance schemes) as a solution which was less integrative than anticipatory of the judicare system.25 This tendency is also apparent in the recent and widespread legalization of the speculative and conditional fee agreements which belong to the broader category of ‘no win no fee contracts’.26 Under these arrangements the lawyer agrees with the client (except in certain circumstances) to be paid only if he wins the case, and receives a proportion of the pecuniary sum awarded to the client. These contractual forms are especially common in England where, in emulation of the American example and despite some opposition among scholars,27 they have exploited ‘market’ mechanisms to offset the risk of losing a 22

See Calabresi, 1979. See for example Pierson, 1996. 24 See de Leonardis, 1996. 25 For a survey of these schemes, see Trocker, 1995. 26 “No win no fee contracts” divide among speculative, conditional, and contingent fee contracts. The three institutes revolve around the same rule of an, because in all cases the lawyer is paid for his services only if he wins the lawsuit, while they differ in respect to the quantum. For more details, see Passanante, 2002. 27 See for instance Zander, 1995; O’Dair, 1999. 23

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lawsuit (this being the counterweight to the lawyer’s opportunity for higher profit) and rapidly replaced the legal aid services previously provided by the State. Use of this form of pacta de quota litis – which are prohibited for Italian, Spanish, and French lawyers – not only brings conspicuous savings for the State budget but also, according to its supporters, has two advantages: first, it enables also the poor (obviously if they have a good chance of winning) to take legal action or defend themselves by drawing on the technical advice of the best lawyers; second, it enables the State, de iure condendo, to concentrate its financial and organizational resources on the creation of a ‘machine’ which provides the poor with extra-judicial services of good quality. But as well as private arrangements, the combined legal aid system is not loath to reprise typically medieval/nineteenth century means based on “private professional charity”. Consider in this regard the services provided – and now formalized in the form of ‘moral duty’ by a code of professional conduct28 – by the ‘pro bono advocates’ of the USA, most of whom belong to medium-tolarge law firms and provide free legal assistance to the poor. Or consider the ‘trainee voluntary work’ undertaken by American law students as part of socalled clinical programs29 intended to provide legal defence for those who otherwise could not afford it.30 It therefore seems that the modern and more advanced Western legal aid systems are moving towards a pluralist and flexible solution. Yet the assertion that this is the best remedy for the problem of access to justice by the poor – besides the narrow and therefore unsatisfactory definition of ‘poor’ generally adopted – is susceptible to criticisms at the level of legal policy. It’s quite easy to imagine the tenor of these criticisms. First, they express the dissent of those who maintain that the remedying of social inequalities is a typically ‘public’ task (although it’s not always very clear what is meant by ‘public’). This criticism therefore discerns in the ‘involvement strategy’ the risk that the State will shirk its responsibilities and use the new model of welfare (the ‘integrated’ one, that is) as a pretext to transfer social needs into private structures and actors. The second criticism, which closely connects with the first, maintains that combined solutions to the problem of access to justice make the effectiveness of 28 See Model Rules of Professional Conduct: rule 6.1., which states, not that a lawyer ‘must’ but rather that he ‘should’ furnish at least 50 hours of pro bono service to persons unable to provide for their own legal assistance because they lack the means or an organization to do so. See on this Rhode, 1998; D. Johnson, 1998. 29 See Rhode, 2000b. 30 Commentators are unanimous that, by providing pro bono services, the forensic profession fulfils a crucial function in offsetting the inefficiency of US legal aid, which despite its range and flexibility, is officially estimated as being able to satisfy only 30% of demand for legal aid by the poor (see Rhode, 2000a). And this despite the rhetoric that not infrequently surrounds this deontological ‘aspiration’ of present and future lawyers: see, for instance, Weissman, 2002.

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this access depend on market laws and variables; and these, owing to their volatility, are unable to realize one of the most solemn claims of modern constitutionalism: the guaranteeing of jurisdictional protection. However, no matter how important they may be, it is not these issues that I intend to examine here. Rather, my concern is to highlight and discuss a more general feature, which far from constituting a trend in contemporary legal systems, has instead long been a feature shared by every definition of legal aid. I refer to the centrally important role of defence, as the minimum guarantee for access to justice, and to the consequent value set on the professional figure embodying that role, namely the lawyer. But I refer also to the ideological assumption on which (somewhat reductively) this view seems to be based: that is, the problem of access to courts by the poor may be largely resolved by flanking them with a good lawyer. 3. Justice for the Poor in the Hands of the Lawyers? The foregoing survey, in its attempt to give the most thorough picture possible of the main trends in the Western legal tradition with regard to the problem of the poor’s access to the courts, has been unable to take account of the numerous studies about the factors responsible for the diversified development of legal aid in the advanced Western countries. Some of these factors are political and social in nature (for instance, the level of State welfare provision in its different manifestations;31 or the impact of religion, and in particular, different attitudes towards assisting divorce by virtue of the fact that “family law dominates all legal aid programmes”;32 or again, the influence of interest groups and the power of bureaucracy33). Others relate to the different traditions of common and civil law, as well as to different proceedings models.34 But none of them is 31 For examples see the analyses by Blankenburg, 1992; Gorierly, 1994; and Regan 1999a. 32 Abel, 1985. 33 See for instance, Cousin, 1993 and 1994. 34 Hence, in this respect, the particularly close attention paid in England to the problem of access to justice (to which the reform project that gave rise to the Civil Procedure Rules 1998, published with the title Access to Justice. Final Report to the Lord Chancellor on the Civil Justice System in England and Wales, July 1996, London, HMSO, was devoted) could, at least in part, be motivated by the exigency to counteract, by means of the ‘corrective’ instrument of legal aid, certain degenerative aspects of the adversary system on which the English (and North American) civil trial is traditionally founded. This model, in fact, because it functions on the assumption of formal equality between the parties, seems structurally unsuited to take account of the substantial differences between the parties. As stressed, among others, by Taruffo, 2001, however, the traditional adversarial/inquisitorial dichotomy should today be revised, also in light of the institutional changes that in the course of the last few decades have attributed to both English and North American judges numerous and deci-

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able to explain on its own, decisively and coherently, the multiform and complex normative dimension. Yet abstracting from this variety and complexity is the prime purpose of the legal assistance and technical defence provided (for free or otherwise) to the poor by professionals; and as just pointed out, it is a feature shared since its beginnings by all forms of legal aid, in both its contents and purposes. As a consequence of its legal formalization, the institution of legal aid for the poor is apparently so closely conditioned by the presence of the legal profession that, since the 1970s, some Anglo-Saxon sociologists of law of Marxist orientation have been induced to claim that it is nothing but “a solution in search of a problem”35 or a “demand-creation” exercised and pressured by private legal professions attempting to stimulate new legal markets in a period of an oversupply of lawyers.36 It is evident that these opinions reflect a broader critique of modern legal systems which alleges that they reduce ‘social’ problems to ‘legal’ ones, claiming to solve them by recourse to legislation (per se “never an impartial forum in the capitalist societies”). But, according to this perspective, legislation, far from producing redistributive effects, inhibits rather than facilitates access to justice for those who don’t belong to the ruling class.37 Nevertheless, the fact remains that both the institutional debate on reform of the legal aid system and theoretical discussion on the latter’s justification have revitalized the figure of the lawyer; and they have done so after centuries of indifference or even outright suspicion shown towards that figure by Western legal, philosophical, and literary culture.38 This has not occurred only in the legal systems traditionally oriented to a ‘paternalistic’ conception to the right to defence, so that the inviolability of the right as enshrined in the constitution also entails that it cannot be renounced (and consequently that a lawyer’s professional services are not relinquishable

sive powers to regulate and direct the proceeding which undermine the traditional image of the judge as ‘passive umpire’. For an analysis of these changes see Galanter, 1976; Jolowicz, 1975 and 1996; Varano, 2002. For the North American context and in particular the emergence of the figure of the ‘managerial judge’ in the USA see the well-known essay by Resnich (1982). 35 For example Richard Abel (1986) argues that “legal aid is a social reform that begins with a solution – lawyers – and then looks for a problem it might solve, rather than beginning with the problem – poverty, or oppression, or discrimination, or capitalism – and exploring a solution”. More recently and in a similar perspective see Cousin, 1994. 36 See for instance Alcock, 1976; Bankowski/Mungham, 1976; Bankowski 1981. 37 For a critique of this position see Paterson/Nelken, 1984. 38 An ample and well-documented survey which starts with Plato, passes through Hobbes, and continues until ‘postmodern’ theories of law, testifying to this indifference towards, or distrust in, the professional figure of the lawyer, is provided by La Torre, 2002.

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either).39 Matters do not seem significantly different in those systems (I refer mainly to those belonging to the common law tradition) where this form of ‘institutional’ dependence on lawyers does not exist, and where predominant instead is an individualistic perspective which, at least in principle, views selfdefence as the expression of an individual autonomy intolerant of constraints even when other fundamental rights and guarantees are at stake.40 At the same time, this trend towards a ‘lawyerized’ legal aid system hasn’t been belied by recent policies introduced in England (not coincidentally in concomitance with 39 Exemplary in this regard is the Italian legal system, where, moreover, the question of the obligatory nature of defence at least in criminal trials was the subject of animated debate in the 1970s following cases of contestation in trials with a political background (documented in the collected work edited by Grevi, 1977). When called upon to pronounce on the matter, the Constitutional Court reiterated the inalienable nature of the right to defence (see Corte Cost. 10 ottobre 1979, n. 125, in Foro italiano, 1979, I, pp. 2513–2517), thereby confirming a stance widely taken in legal culture. A similar solution was also upheld for civil cases, although in this case the obligation of legal representation may be waived in particular types of litigation: see Camoglio, 1970 and 2000; Rota, 2000. 40 In England, for example, at least in the civil proceedings, the principle obtains that every citizen has an almost unrestricted right to self-representation, without assistance or defence by a lawyer. Until 1999, the Right to Sue in Person, indeed, was foreseen by the O. 5 r. 6 of the Rules of Supreme Court then in force. Despite repeal of this provision when the new Civil Procedure Rules entered into force, it continued to operate on a par with the principle implicit in the interpretation of a broad series of provisions, most notably those on trial costs (for details see Passanante, 2003). In certain respects, this explains the widespread phenomenon of so-called “litigants in person” (for a relatively recent survey see G. Applebey, 1997), although in many cases this originates less from considered personal choice than from ‘necessity’, in that the parties do not have access to legal aid and cannot afford a lawyer and are therefore forced to conduct their own defence: see on this the treatment in Plotnikoff/Woolfson, 1998, The Study of the Services Provided under the Otton Project to Litigants in Person at Citizens Advice Bureau at the Royal Courts of Justice, in http:// www.lcd.gov.uk/research/1998/798es.htm (and for similar considerations on the disadvantage at which ‘unrepresented’ parties are placed in the USA, Engler, 1999). Similarly, in the US system, the idea that parties are masters of their own trial strategy and can therefore dispense with counsel is affirmed in Title 28 of the Judiciary and Judicial Procedure USC, § 1654, which expressly states that parties may avail themselves of counsel or conduct their own cases “personally”: for details see Cuomo Ulloa, 2003. It should be pointed out, however, that in the USA the right to defence is constitutionally guaranteed only for defendants in criminal prosecutions (Sixth Amendment), and that in the landmark Gideon Case of 1963 the Supreme Court ruled that all defendants in criminal trials whose freedom was therefore at stake and could not afford a lawyer had a right to counsel paid by the State. In civil proceedings, however, the right to defence is subject to only negative guarantee in that it is not possible to preclude the party’s right to legal representation; apart from in exceptional circumstances, however, corresponding to this right is no positive guarantee in favour of a party unable to afford a lawyer. This at least is the established jurisprudential opinion on the matter since the case of Lassiter v. Department of Social Service decided by the Supreme Court 1981, despite the openness shown by the same Court in 1971 (Boddie v. Connecticut, 401 U. S. 371) and the lively dissent expressed by legal scholars (see Houseman, 1998; Hazard, 1999; Rhode, 2000).

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cutbacks in the judicare legal aid system) in order, it seems, to discourage recourse to lawyers. I refer for example to the providing of on-line resources for ‘do-it-yourself ’ legal aid;41 or to the facilitating of legal action by ‘litigants in person’;42 or again to the permission for the parties to adopt bizarre forms of legal representation instead of those usually furnished by a lawyer.43 The combined system, in fact, is unable to do without the technical services of the lawyer. Although its principal concern is to relieve the State of the costs of legal aid, it does not hesitate, as we have seen, to devise alternative sources of technical support for the poor which ultimately depend on the generosity and entrepreneurial spirit of lawyers. Oddly enough, the dictum “One who is his own lawyer has a fool for a client” was coined precisely in the United States (and, moreover, by judges of the Supreme Court44), and it is in the English-speaking countries that it enjoys wide currency. 41 Consider for example the experimental on-line service set up by the British government for the settlement of monetary claims whereby claimants and defendants can begin proceedings via Internet without the services of lawyers (see http:// www.courtservice.gov.uk). Initiatives of this kind replicate in spirit those introduced by the courts in the United States through the creation of legal aid offices, call centres, and legal forms downloadable on-line (for further details see Flaherty, 2002). 42 The intent of the British legislator to encourage the phenomenon of litigants in person, while at the same time attenuating the side effects, is manifest in various ways. Firstly, the judicial reforms of 1999 further simplified the procedure for small claims and raised the value limit (see Zander, 1999). Pursuing the same purposes are the granting of greater powers to the judge (which in the “small claims track” is most evident in the informality of the procedure: see Baldwin, 1998) and the introduction of specific rules on trial costs for the parties who decide to represent themselves personally. Also to be mentioned are the tribunals conceived as alternatives to the ordinary courts, especially in disputes between citizens and the public administration (see on this Varano, 1973), although their inadequacy to the needs of litigants in person has been recognized by government sources themselves (see Tribunals for Users One System, One Service. Report of the Review of Tribunals by Sir Andrew Legatt, March 2001, refer to the Internet site ). 43 Consider the two English institutes of the Mckenzie Friend and the Lay Representative, which are inspired by the same rationale of providing the party with an instrument of representation other than personal defence. The former originated from a jurisprudential case of the 1970s (McKenzie v. MacKenzie [1970] 3 All ER 1034, [1970] 3 WLR 472) and is based on the principle that a party who appears personally may ask the judge to permit a relative, friend, or neighbour to assist him or her in court. Under the ‘lay representative’ system, which was instituted by the Lay Representative (Right of Audience) Order of 1992, the party may be represented by a trusted person in all small claims cases, transferring to the latter the right to appear in his or her interest. However, this right is restricted to the so-called “right of audience” and does not extend to the so-called “right to conduct litigation”: the lay representative, that is to say, may address the judge, call and question witnesses, but does not possess all the powers pertaining to a lawyer (e. g. initiate proceedings or sign documents on behalf of the party). For further details see Passanante, 2003. 44 See the decision handed down in Faretta v. California, 422 U. S. 806 [1975], p. 852, whereby the Supreme Court declared illegitimate the imposition of defence counsel on the defendant in a criminal prosecution. On this see also Bradlow, 1988.

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It is also quite curious that it is in the cultural context of the ‘coordinated’ systems, to use the ideal types proposed by Mirjan Damasˇka45 (i. e. those systems where the trial machinery is a means for resolving conflicts rather than implementing government policy, and where lawyers may not even appear, and if they do so must rigidly comply with the interests and wishes of the parties), that expression is given to ‘ethicist’ or ‘perfectionist’ conceptions of the lawyer’s role.46 Such conceptions, that is to say, tend to endorse the idea that the lawyer should not restrict himself to zealously advancing his client’s interests alone. He should also, as the incumbent of a munus publicus, contribute, like the judge, to fulfilment of ‘substantial’ justice in the case at hand, performing a ‘public’ role which is not necessarily confined to the courtroom. As already said, it is precisely the debate on the problem of access to justice by the poor, addressed from the standpoint of legal aid, that has provided fertile terrain for the development of these conceptions, especially in the Anglo-Saxon countries (and in the United States in the wake of studies on Legal Ethics47).

45 In his well-known comparative analysis of 1986 (Damas ˇka, 1986), the scholar identified two fundamental types of legal system: ‘hierarchical’ and ‘coordinated’. Whilst the former type largely coincides with the legal systems of continental Europe, the latter share many features with the common law ones. After identifying the main distinction between the two models as the different powers given to the judicial organs, Damasˇka links these two types of legal system to ideal-typical forms of the State, which in their turn correspond to two types of purpose pursued by the trial. Whereas in the hierarchical systems the role of government (the so-called ‘active’ State) is “to manage the lives of people and steer society” ( p. 11) and the function of the trial is to implement a certain policy, in the coordinated systems, where the government (the so-called ‘reactive’ or ‘liberal’ State) seeks to “maintain the social equilibrium and merely provide a framework for social self-management and individual self-definition”, the purpose of the trial is to resolve conflicts and to promote individual rights (to tell the truth, Damasˇka does not draw a complete identification among adversarial system, reactive State, and the “conflict-solving” function of the trial, looking instead for intersections among these ideal-typical categories: Damasˇka, 1986, chap. 6). Distinctions such as these obviously also concern the role performed by the lawyer. According to Damasˇka, whilst in the “policy-implementing” trial the lawyer operates on a par with a functionary in the administration of justice, in the coordinated systems, far from performing ‘public functions’, the lawyer is a mere auxiliary to the party, who is the protagonist of the trial. 46 However, it is possible precisely where, according to Damas ˇka, the lawyer’s role is solely to “advance his client’s interests only as the latter defines them . . . even if [he] himself is not convinced that these arguments constitute the best interpretation of the law” (Damasˇka, 1986, p. 142), namely in the cultural and institutional of the ‘coordinated’ system (which closely corresponds to the US trial), that the elaboration of idealizing models of the lawyer’s role is accompanied by a critical stance towards the status quo. 47 For an early survey of these studies and the theses defended in them see Luban, 1983; Luban, 1988; Rhodes, 2000b; O’Dair, 2001. Recently and in a comparative prospective see Dondi/Hazard, 2004.

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Thus, one of the main criticisms brought against the recent English reform of the legal aid system (towards the superseding of the judicare system) is that it tends to “damage the ‘political’ lawyer’s project of empowering the underprivileged client and countering social injustice”,48 thereby annulling one of the main prerogatives of the legal profession. Likewise imbued with ideologies that emphasise the ‘political’ and ‘social’ role performed by lawyers is the older, but still current, sociological doctrine of ‘legal needs’.49 This doctrine attributes the problem of justice for the poor largely to the fact that they are unaware of their legal needs (as in ‘unmet legal needs’) and proposes as a solution that lawyers should be invested with the twofold task (almost ‘missionary’ in nature) of satisfying those needs and ‘enlightenedly’ encouraging the poor to ‘mobilize the law’ in a ‘reconciliatory’, so to speak, relationship with the institutions.50 In more general terms, the ‘ethicist’ conceptions as defined above, which echo the figure of the “lawyer-Statesman” theorized by Anthony Kronman,51 today serve to legitimate a certain model of legal aid, and in particular the judicare or State-funded system. Especially those who, by adopting a consequential48

Sommerlad, 2001, 335. The legal needs literature is vast. Among the early, well-known studies were for instance Abel-Smith/Zander/Brooke, 1973 from the UK and Curran, 1977 from the USA. Among recent studies are the Comprehensive Legal Needs Study (CLNS), conducted by the American Bar Association (see Cantril 1996 for references and a summary) and Blacksell, Economides, and Watkins, 1991 from the UK. As well as for its ideological conditionings, the doctrine of legal needs has often been criticised for its methodological and conceptual weakness. In particular, as regards the latter, the notion itself of ‘legal need’ seems vague and unsuited to achieving the goal which the studies on legal needs pursue, namely that of improving our general understanding of how law actually functions in a society (Griffiths, 1980). As emphasised by various authors, in fact, on the one hand the (normative) concept of ‘need’ involves value judgements rather than empirical assessments (Griffiths, 1980; Cousin, 1994), while on the other the adjective ‘legal’ tends to ignore the fact that, as Morris, 1973 puts it, “need is socially defined . . . and legal need cannot be viewed in any absolute sense, nor can it be isolated from a more general idea of social need”. For a recent contribution to the theme, in the sense that despite its theoretical limitations the doctrine of legal needs can nevertheless provide a foundation for future legal aid policy development, see J. Johnsen, 1999. 50 Not by chance, the doctrine in question is closely connected with the so-called “neighborhood law firms (NLF) for the poor”. Specialized legal assistance centres located in lower-class neighbourhoods and formed of publicly-salaried lawyers, these organizations arose first in the USA during the War on Poverty Program of 1965 and then spread mainly to Australia, Belgium, Canada, England, and the Netherlands on the initiative of ‘activist lawyers’. If, as the proponents of the doctrine of legal needs maintain, “the lack of economic resources – the unequal opportunity to retain a lawyer – is not the principal barrier to access to justice for poor” (Carlin/Howard, 1965) but a decisive role is also played by a lack of information and the difficulty of the poor in contacting a private lawyer, then the NFL represent an excellent solution. See in this regard Garth, 1980. 51 See Kronman, 1983, criticised by Silva Marques, 2002. 49

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ist approach rather than making appeal to the principles of equal justice (the socalled ‘access argument’52), have sought to argue that the State should invest in legal aid rather than in other benefits (health care, for example, or housing for the poor) have been forced to demonstrate that providing legal services to the poor is a cost-effective way to improve their situation. Performing a major rhetorical-argument function in the proof of this assertion has been, in many cases, the important political, social, and broadly moral task undertaken (or which should be undertaken) by lawyers, both within and outside the courts.53 Thus, not only have conceptions of this kind served to legitimate a normative model which, as we have seen, largely relies (and not only in the judicare version) on the legal profession, but in their endeavour to show that legal aid is important because it provides the poor with material and psychological benefits (in large part due to the action of lawyers),54 they have also furnished a response to those who, although they may endorse the idea that the State should concern itself with legal assistance for the poor, have contested the instruments normally used, asking “Why lawyers rather than cash?”.55 However, as we have seen in the case of England, the model which ‘moralizing’ proposals with regard to the lawyer’s role tend to advocate – namely the one based on State-funded legal aid – has not stood up to the facts. Moreover, aside from any value judgements on this model, the ‘ethicist’ conceptions in re ipsa considered – besides imposing roles and responsibilities on lawyers which should instead pertain to other actors – tend to undermine that ‘partiality’ instrumental to the principle of defence which, as also Giovanni Tarello reminds us, is the distinctive feature of the lawyer’s function (mainly, but not only, the criminal lawyer).56 Stated otherwise, this is the “moral immorality” (the oxymoron with which St. Peppert has efficaciously summed up the essentially ambiguous role of counsel57) which makes zealous partisan advocacy essential for 52

Cf. for example, Cappelletti, 1978; Luban, 1988; Legal Action Group, 1992. See for instance Cahn/Cahn, 1964; Morris, 1973 and Sommerlad, 2001. 54 The Cahns, 1964 argue for example that lawyers working in the ‘neighbourhood law firms’ (see note 50) could play a crucial role in championing the views of the poor. People could take their problems to lawyers without the fear of stigma. Furthermore, using their legal knowledge and skills in advocacy, the lawyers could express the opinions of their clients to a wide range of institutions in a wide variety of ways. 55 See Abel, 1985. 56 See Tarello, 1982. Again with regard to the Italian legal-philosophical literature, a position rather different from Tarello’s has been taken up by Lombardi Vallaur,i 1981, who invests the lawyer with pedagogical and ‘therapeutic’ functions by dint of which, rather than acting as defence in the trial stage (‘pathological’), he should perform the role of ‘peace-maker’, as a sort of ‘pre-judge’ concerned to prevent rather than encourage conflict between the parties. A highly moralizing conception of the lawyer as a ‘pacifier’ and ‘reconciler’ is also put forward by Lombardi Vallauri’s pupil, Giovanni Cosi (see Cosi, 1998). 57 See St. Peppert, 1986. 53

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accomplishment of what the trial claims to represent: to wit, as Fuller and Randall put it, “a public trial of the facts and issues”.58 Above all, however, when considered in the light of the debate on the problem of access to justice, there is a risk that the political and social role of the ‘lawyers of the poor’ may distract that debate’s attention from an important consideration: access to defence is, to use an apt Kafkaesque image, only the first ‘door’ through which the poor in search of justice must pass; it is certainly not the only one, nor is it always the most narrow of them. First and foremost, it appears rather illusory, if not mystifying, the idea that the presence of lawyers in the proceedings is sufficient to guarantee equality among the parties. Such an idea, which Auerbach critically traces back to the “morality” of the adversary system,59 seems in fact to ignore the market rules which dominate the lawyer-client relationship and the fact that lawyers can be, and are in fact, unequal in preparation and ability in the conduct of defence, with the obvious consequence that it is the “stronger” party on the economic level that assures itself of the ablest lawyers, while the weaker party is forced, in general, to content itself with professional services of a lower level. Last but not least, the shortcoming of the normative solution offered in the form of legal aid is that it has concentrated (at least to date and with some important exceptions) almost exclusively on assistance and technical defence60 without being concerned to explore alternative or integrative forms of access to “justice”61 – ones which are not only practicable for those in straitened economic circumstances but also do not entail, in the name of ‘deformalization’ of 58

See Fuller/Randall, 1958. Auerbach, 1976, 280 and see also Taruffo, 1990, 344. 60 And mostly limited to technical assistance and defence in court cases, given that in many continental legal systems the problem of legal advice and extra-judicial assistance for the poor has remained not only unsolved but also largely neglected. See the essays collected by Zuckerman, 1999. 61 It should be pointed out, however, that alternative or integrative forms of access to justice (above all simplified, rapid, and cheap procedures for small claims cases and the creation of non-judicial conciliation mechanisms for civil cases or reparatory mechanisms in criminal ones) correspond to a need that has been perceived for a long time and had their first applicatory experience in the United States where, already in 1924, the Conference of Delegates of the American Bar Association greeted the informal method of resolution of controversies practised in the Small Claims Courts as one of the solutions more suitable to the problem of access to justice by the poor: cf. R. H. Smith, 1924. Beginning in the 1970s, and closely related to the idea of a “crisis” in the legal-official judicial system, the expansion of methods of “informal justice” became the declared objective of the movement for the access to justice headed by Cappelletti. To this subject, almost the entire volume II of the already-cited Florence Access to Justice Project (see note 15) is in fact dedicated. Along the same lines, on the level of practical experimentation, a conception of the protection of rights less exasperatingly “procedural”, both in the criminal sphere and in the civil one, seems to gain ground, along the path of the Anglo-Saxon example, in different countries, with 59

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justice and its efficiency, any diminishment in the guarantees afforded to the underprivileged.62 References Abel, R. L. (ed.) (1982), The Politics of Informal Justice, New York: Academic Press. – (1985), Law without Politics: Legal Aid under Advanced Capitalism, UCLA Law Review, 32. – (1986), The Paradoxes of Legal Aid, in J. Cooper/R. Dhavan (eds.), Public Interest Law, Oxford: Basil Blackwell. Abel-Smith, R./Zander, M./Brooke, R. (1973), Legal Problems and the Citizen, London: Heinemann. Alcock, P. (1976), Legal Aid: Whose Problem?, British Journal of Law and Society, 4. Applebey, G. (1997), The Growth of Litigants in Person in the English Civil Proceedings, Civil Justice Quarterly, 16. Auerbach, E. (1976), Unequal Justice. Lawyers on Social Change, New York. Baldwin, J. (1998), Small Claims Hearings: The Interventionist Role Played by District Judges, Civil Justice Quarterly, 17. Bankowski, Z. (1981), Commissioning Legal Services, in Scots Law Time. Bankowski, Z./Mungham, G. (1976), Images of Law, London: Routledge.

results often questionable, in particular on the level of the guarantees afforded to the weaker subjects. 62 As is well known, the risk inherent in ‘alternative’ forms of access to justice is that they may give rise to situations in which the deciding body, in the absence of the guarantees typical of courts, is more vulnerable to pressures and interference, especially in the case of economic-social disparity between the parties. Similarly, as already noted by Mnookin/Kornhauser, 1979, in relation to familiar cases, it is not said that for the sole fact of coming to an “informal” agreement social inequalities, personally and economically existing between the parties, do not influence the determination of such an agreement, which ends in favouring the “stronger”. It is really regarding such aspects, moreover, that conspicuous criticisms point to the acclaimed methods of informal justice and to the ideology it is tinged with. For a general picture of such criticisms cfr. the two volumes edited by R. Abel, 1982. It is evident, however, that the inadequacy of the outcomes often obtained by the movement towards a greater “informality” and the inconveniences tied to it are not a sufficient argument to disparage the search for mechanisms which, in the words of Abel (by the way, one of the more passionate detractors of informal justice), tend “to offer equal access to the many rather than unequal access to the few, that operate quickly and cheaply, that permit all citizens to participate in decision making rather than limiting authority to professionals, that are familiar rather than esoteric, and that strive for and achieve substantive justice rather than frustrating it in the name of form”: see R. Abel, 1982, 310, and also on this point Cosi, 1998, 335–372.

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Blacksell, M./Economides, K./Watkins, C. (1991), Justice Outside the City: Access to Legal Service in Rural Britain, Essex: Longman. Blankerburg, E. (1992), Comparing Legal Aid Schemes in Europe, Civil Justice Quarterly, 11. – (1995), Access to Justice and Alternative to Courts: European Procedural Justice Compared, Civil Justice Quarterly, 14. Bradlow, J. (1988), Procedural Due Process Rights Of Pro Se Litigants, University of Chicago Law Review, 55. Cahn, E. S./Cahn, J. C. (1964), The War on Poverty: A Civilian Perspective, Yale Law Journal, 73. Calabresi, G. (1979), Access to Justice and Substantive Law Reform: Legal Aid for the Lower Middle Class, in M. Cappelletti/B. Garth (eds.), Access to Justice: Emerging Issues and Perspectives, III vol. of the Florence Access to Justice Project, Alphen aan den Rijn/Milan: Sijthoff and Noordhoff/Giuffrè. Camoglio, L. P. (1970), La garanzia costituzionale ed il processo civile, Padova: Cedam. – (2000), Procura (diritto processuale civile), Enciclopedia del diritto, VI. Cantril, A. H. (1996), Agenda for Access: The American People and Civil Justice, Chicago: American Bar Foundation. Cappelletti, M. (1968), La giustizia dei poveri, Foro italiano, IV. – (1969), Processo e ideologie, Bologna: Il Mulino. – (1977), Giustizia e società, Milano: Ed. di Comunità. – (1994), Dimensioni della giustizia nelle società contemporanee, Bologna: Il Mulino. Cappelletti, M./David, R. (1984), Accès a la justice et état-providence, Paris: Economica. Cappelletti, M./Garth, B. (1978), Access to Justice: The Worldwide Movement to Make Rights Effective, now in Paterson A./Goriely T. (eds.), 1996. Cappelletti, M./Gordley, J./Earl Johnson (eds.) (1975), Toward Equal Justice: A Comparative Study of Legal Aid in Modern Societies, Milano: Giuffrè. Carlin, J./Howard, J. (1965), Civil Justice and the Poor, New York: Russel Sage Foundation. Chiarloni, S. (2001), Patrocinio dello Stato e patrocinio gratuito: violazione del principio di uguaglianza . . . tra avvocati?, Giurisprudenza italiana. Chiavario, M. (ed.) (2003), La difesa penale, Torino: Utet. Cipriani, F. (1999), Avvocatura e diritto alla difesa, Napoli: E. S. I. Cosi, G. (1998), La responsabilità del giurista. Etica e professione legale, Torino: Giappichelli. Cousin, M. (1992), Access to the Courts: the European Convention on Human Rights and the European Community Law, Dublin University Law Journal, 51.

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– (1993), Civil Legal Aid in France, Ireland, the Netherlands and the United Kingdom: A Comparative Study, Civil Justice Quarterly, 12. – (1994), The Politics of Legal Aid: A Solution in Search of a Problem?, Civil Justice Quarterly, 13. Cuomo Ulloa, F. (2003), Autodifesa o assenza di difesa? La difesa personale nel processo americano, in A. D’Angelo (ed.), Good Morning America, Milano: Giuffrè. Curran, B. (1977), The Legal Needs of the Public, Chicago: American Bar Foundation. Damasˇka, M. (1986), The Faces of Justice and State Authority, New Haven: Yale University Press. Denti, V. (1980), Patrocinio dei non abbienti e accesso alla giustizia: problemi e prospettive di riforma, Foro italiano, V. – (1982), Accesso alla giustizia e Welfare State, Rivista trimestrale di diritto e procedura civile. – (1988), Assistenza giudiziaria ai non abbienti – II) Diritto processuale civile, Enciclopedia giuridica, vol. III. Dondi, A./Hazard, G. C. (2004), Legal Ethics: A Comparative Study, Stanford: Stanford University Press. Engler, V. R. (1999), And Justice for All: Revisiting the Roles of the Judges, Mediators and Clerks, Fordham Law Review. Ferrajoli, L. (1980), Processo penale (princìpi teorici), in C. Donati (ed.), Dizionario critico del diritto, Roma: Savelli. – (1998), Diritti fondamentali, Teoria politica, 2. Flaherty, M. (2002), How Courts Help you Help Yourself: The Internet and Pro Se Divorce Litigant, Family Court Review, 40. Friedman, L. M. (1975), Access to Justice: Social an Historical Context, in M. Cappelletti/J. Weisner (eds.), Access to Justice. The Florence Access to Justice Project, Alphen aan den Rijn/Milan: Sijthoff and Noordhoff/Giuffrè. Fuller, L. L./Randall, J. D. (1958), Professional Responsibility: Report of the Joint Conference of the ABA AALS, American Bar Association Journal, 44. Galanter, M. (1976), Why the ‘Haves’ Come Out Ahead: Speculations on the Limits of Social Change, Law and Society Review, 9. Gallo, E. (1991), Assistenza giudiziaria ai non abbienti – I) Diritto costituzionale, Enciclopedia giuridica, vol III. Garth, B. (1980), Neighbourhood Law Firm for the Poor, Alpen den Rijn: Sijthoff & Noorhoff. Gorierly, T. (1994), Why Do Some Societies Have Civil Legal Aid While Others Don’t?, Paper to the Third European Conference on Legal Profession, Rouen, France.

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Griffiths, J. (1980), A Comment on Research into “Legal Needs”, in E. Blankenburg (ed.), Innovations in the Legal Services, Cambridge: Gunn & Hain. Guastini, R. (1994), Diritti, in P. Comanducci/R. Guastini (eds.), Analisi e diritto 1994, Torino: Giappichelli. – (1996), Distinguendo. Studi di teoria e metateoria del diritto, Torino: Giappichelli. Harlow, C. (1999), Access to Justice as a Human Right: The European Convention and the European Union, in P. Alston (ed.), The EU and Human Rights, Oxford: Oxford University Press. Hazard, G. C. (1999), Legal Ethics: After Legal Aid is Abolished, Journal of the Institute for the Study of Legal Ethics, 2. Hazard, G. C./Koniak, S./Cramton, R. (eds.) (1999), The Law and Ethics of Lawyering, Westbury. Houseman, A. W. (1998), Civil Legal Assistance for the Twenty-first Century: Achieving Equal Justice for All, Yale Law and Policy Review, 17. Johnsen, J. (1999), Studies of Legal Needs and Legal Aid in a Market Context, in Regan F. et al., 1999b. Johnson, D. (1998), The Legal Needs of the Poor as a Starting Point for Systemic Reform, Yale Law & Policy Law Review. Johnson, E. (2000), Equal Access to Justice: Comparing Access to Justice in the USA and Other Industrial Democracies, Fordham International Law Journal. Jolowicz, J. A. (1975), The Active Role of the Court in Civil Litigation, in Id./M. Cappelletti (eds.), Public Interest Parties and the Active Role of the Judge in Civil Litigation, Milano/New York. – (1996), The Woolf Report and the Adversary System, in Civil Journal Quarterly, 15. Kronman, A. T. (1993), The Lost Lawyer, Cambridge (Mass.): Harvard University Press. La Torre, M. (2002), Il giudice, l’avvocato e il concetto di diritto, Soveria Manelli: Rubbettino. Legal Action Group (1982), The Scope of Legal Service, now in A. Paterson/T. Goriely, 1996. Leonardis, O. de (1996), I welfare mix. Privatismo e sfera pubblica, Stato e mercato, 46. Lombardi Vallauri, L. (1981), Corso di filosofia del diritto, Padova: Cedam. Luban, D. (ed.) (1983), The Good Lawyer. Lawyers’ Roles and Lawyers’ Ethics, Totowa, N.J. – (1988), Lawyers and Justice. An Ethical Study, Princeton: Princeton University Press. MacBride, J. (1998), Access to Justice and Human Rights Treaties, Civil Justice Quarterly, 17.

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Rights and Borders Alienage as an Immutable Characteristic: Current Practices on Alien Exclusion under Scrutiny Victoria Roca

1. Introduction The alien/citizen classification, you might agree, challenges, as many other classifications throughout history, the moral ideal of equality of treatment; its reconsideration will lead us to review some settled (even if unsettling) ideas on our immigration practices and to highlight the normative – as well as the factual – complexities that could be found in the implementation of the egalitarian principle. 1.1. This paper is a very tentative exercise that might be framed within one of the major debates in political philosophy: the debate about the legitimacy of states once we question their efficacy – in an economically globalised world – as major agents for the human rights case (see Ferrajoli, 1999). Without any doubt, the so-called nation states played an important role in the history of democratisation of our societies (Habermas, 1996) as well as in the history of the implementation of what has been known as the welfare state. But it might be the case that the development of our society has taken such a path that the nation state as a political border division does not any longer play – or at least does not solidly play under the current status quo – a morally sound role. To my purposes, it might be the case that in our time, more than ever, we face the moral dubiousness of the alien/citizen distinction attached to (see Hierro, 1995, and Atienza, 2001) our national legal systems (here including more complex political organisations such as the European Union). Or, in not so dramatically challenging terms, maybe there is a moral imperative that compels us to reconsider at least some aspects of the current political division of the world as well as some aspects of other social structures that might be supporting an unfair distribution of welfare and life opportunities. Basically, it seems to me that we are somehow forced to reconsider the causes of the current distribution of wealth and power which place a vast majority of human beings far from meeting the life conditions protected by – among others – Article 25. (1) of the Universal Declaration of Human Rights: “Everyone has the right to a standard

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of living adequate for the health and well-being of himself [or herself] and of his [or her] family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control.” 1.2. We should be facing therefore the question of how to implement the moral requirement of equal life opportunities in those terms framed by Amartya Sen (see the notions of capacities and agency in Development as Freedom, 1999). And, maybe in more abstract but also more enlightening terms, we are compelled to face the complexities in the fulfilment of the principle of human dignity (a fundamental value – in spite of all its theoretical obscurities – of the Western democratic societies as it could be read in many constitutions and constitutional projects (see, Project of European Constitution, Salonica, June 2003, part II, Fundamental Rights of the Union, preamble and Title I, Article II-1). 1.3. In The Law of Peoples, Rawls lists the causes of migratory flows (Rawls, 1999, 8–9). Still, in his work, he disappointingly sweeps aside a deep analysis of boundary policies simply by suggesting that the causes of immigration would disappear in a “realistic utopia of society of liberal and decent Peoples” (Rawls, 1999). For simplification purposes, here I will only point out that to my understanding Rawls fails to give account within that list of what seems to be one of the main triggering factors of migratory flows – he only refers to it very indirectly and at a different step of his argument (Rawls, 1999, 106): that is, economic power tyrannies (current outcome of the historical developments of certain structures of the markets) and the resulting burdened societies. Under the light shed by the principle of equal life opportunities or, finally, under the principle of human dignity in this egalitarian understanding of it, in this paper, I will focus on the economic refugees (see Singer, 1993). I consider their case to be more challenging to our current practices than that of political refugees. Though conditions to consider someone a political refugee are harsher these days (the European political leaders are currently listing countries that are to be considered safe for this purpose. See Habermas’s criticism of German controls on asylum seekers: Habermas, 1993), it seems to me that as a matter of current policies, to accept that someone truly is a political refugee implies in our practices to accept her or him into one of the liberal communities (at least as long as numbers of political refugees continue not to be too high). But this is not the case when quality of life interests of the refugees are at stake (that is, economic refugees). So, reconsidering their case, I believe, might be the test whose disturbing results would require injecting some moral impulse into our boundary policies. 1.4. When considering migratory flows there is also another distinction at stake: that is, the distinction between entry policies and integration policies.

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Still this distinction is blurred. The integration policies are related to questions such as the debate on the nature of citizenship, multiculturalism, equal rights for all those living within a political community (equal eligibility to social welfare benefits, working positions and, finally, the equal enjoyment of the rights and duties of political life); the entry policies are related to questions such as conditions to be met (conditions that are not all under the seeker’s control) in order to be accepted either merely into the territory or into the community, and requirements in order not to be expelled (as we will see, former aliens that later enjoy citizenship or a temporary or permanent permit must meet “good behaviour” conditions risking otherwise being deported, as a “second” punishment attached to ordinary imprisonment in some criminal offences). The entry debate is the core of the open/closed borders controversy and finally, under the current unbalanced “society of nation states,” this is also the debate about one of the possible steps to equal life opportunities. There are, of course, many issues that connect entry and integration policies (family reunification as we shall see might be one of those). 1.5. Vulnerability is probably the common feature shared by many hoping for entry. Our immigration policies, pretending to protect the vulnerable (police systems at borders claiming to prevent the traffic of humans), turn out to be mere administrative management of that vulnerability. Temporal quotas for immigration – accepting in our midst only those workers that are required for some sort of job and granting them permits only to such an extent as current needs of the national economic market dictate (as established in article 42 of the Spanish immigration law) – could be an example of the “managing of the vulnerable” that I am here referring to. 1.6. The minimum core of the right to emigrate can be defined as a human right that the individual has against the state where she/he resides: “every one has the right to leave any country” reads Article 13 of the United Nations Human Rights Convention. Even this very minimum content suffices to condemn current claims from Western societies invoking the compromise that North African countries should operate in terms of not letting their nationals leave the country. Beyond that minimum core of the human right to emigrate, I think it could be challenging though to consider whether taking seriously that particular right might imply further commitments in relation to individuals wanting to be accepted into particular political communities. The value tension in a hypothetical borderline conversation will be the object of our reflection later in this article. 1.7. In order to approach a critical analysis of our current practices I have studied materials of different sorts. I shall put forth some normative materials that are currently positive law: as Ferrajoli (2001) claims, we do have a set of norms that are enforced law even if they are continuously violated by state leg-

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islation on aliens and immigration. Among those normative documents I should mention: the UN Human Rights Convention, the European Convention for the Protection of Human Rights and Fundamental Freedoms, the Social Rights Charter, the UN Convention on the Rights of the Child, fundamental rights chapters within the constitutions of Western states, and the European Union Constitution Project. The claim to universality of the values and principles protected under those texts is considered the source of moral legitimacy of Western societies, including civil and political rights, private life, economic and social rights, equalitarian ideals, and so forth. The principle of human dignity is its major key. Specifically, Article 2 of the European Union Constitutional Project states: “The Union’s values The Union is founded on the values of respect for human dignity, liberty, democracy, equality, the rule of law and respect for human rights.” I shall refer to the principle of dignity later in this paper. Among my legal materials I have also a set of judgements from the European Court of Human Rights. I consider them especially illuminating for my purposes since to my understanding they can definitely be the best test to the current balance of interests on issues related to state immigration policies. This court, important as its role could be in the task of challenging states’ migratory policies and in the task of contributing to the universal implementation of equality and human rights, has nevertheless played, as a matter of fact, a very timorous role; I believe that many times it has weakened through ambiguous ratio decidendi any optimistic expectation – as to the implementation of the egalitarian requirements – for future judgements. Under the circumstances though, we might very well guess that the timorousness of such a court is probably the price paid so as to guarantee the efficacy of its indictments within the Member States. An account on the current normativity calls too for the presentation of the main lines of the project – as sketched in the several council meetings (Tampere, Laecken, Tessaloniki, and Brussels) – in order to achieve a European Union convergent migratory policy. 1.8. My approach intends to be a small sort of reflective equilibrium exercise. Reading the individual stories that triggered the judgements from the European Court of Human Rights and the implications of its decisions in relation to those and possible future cases might place us in a somewhat disturbing incommodity that would not so clearly appear if we were to start by picturing general norms and practices. Then I should sketch the value balances in those decisions as well as the value balances in the European Union’s convergent policies. After that, I will introduce Walzer’s analyses and then Singer’s, Habermas’s, and Ackerman’s. Ackerman’s analysis will help me to introduce the analysis that I consider relevant, which is the one focused at the core of the principle of human dignity in this egalitarian understanding of it that I am try-

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ing to pursue in this paper. But before getting to this, let us look very briefly at the European Human Rights Court judgements and the European Convergence Policies on Immigration. 1.9. My own warning: before taking any further step I want to state my willingness to approach this issue trying to avoid what I will call – by drawing from Hegel – the unhappy consciousness on the one side and the objective spirit on the other. A critical approach to the question on our moral (negative and positive) duties as citizens of one of the opulent Western societies can certainly give us a picture that will make us realise that our conventional morality could very plausibly be called, as someone already has, “the yuppie’s morality,” drawing from the fact that nearly every act of giving is considered an “heroic sacrifice” once we feel even minimally disturbed in our current – opulent – lifestyle (see also Bayón, 1986). But this would be – important as it could be to shake maybe some very few consciences – merely a “discourse of denunciation” with unfortunately hardly any consequences in terms of serious (realistic) attempts to change our institutions. On the other hand, the “positive spirit” drives me to hopelessness with its “what it is, that alone should be” kind of litany. Maybe the way to trace a sound and realistic analysis in between these two conceptual categories could be by letting a particular kind of question be the leading question to my approach. I suggest this one: Under the light of the egalitarian requirements and the ideal of universal implementation of human rights, what sorts of public policies could be realistically proposed for implementation assuming the features of the current citizens of our States? Morality compels us to the best of all possible worlds. Politics reminds us that to build that best possible world is a collective task where an agreement of all the political forces should be achieved; if we want to avoid the risk of seeing our project not being fulfilled and our societies threatened by xenophobic movements that might gain too many votes in our democratic parliaments. Ackerman’s and Habermas’s proposals, very rightly, warn us against these dangers.

2. The European Court of Human Rights Judgements on Immigration-related Issues 2.1. I have chosen five different assessments that were passed by the Court on these different cases: the Case of Ahmut v. The Netherlands (1996), the Case of Sen v. The Netherlands (2001), the Case of Moustaquim v. Belgium (1991), the Case of Bensaid v. The United Kingdom (2001), and finally, the Case of Cisse v. France (2002). The first two cases are concerned with the implications in terms of family life of current immigration policies, the second pair deal with deportation or-

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ders, and the last listed case is one involving the freedom of assembly of “undocumented persons.” Given the purposes of my paper I will not go either into the details of the circumstances of the different cases or into the individual arguments. I will still give a brief account of the factual stories, a picture of the interests at stake, and an outline of the balance of those interests as the European Human Rights Court settled them. The Ahmut (1996) and the Sen (2001) cases both involved economic immigrants established in one European country who decided to bring their small children left behind in their country of origin. Ahmut enjoys Moroccan nationality and (let me say for simplicity) has also become a naturalised European. In spite of his years – and naturalisation – in the Netherlands, the European Human Rights Court in 1996 considered that the denial of a permit to his nineyear-old son that would have allowed the child to live with him in the Netherlands was not an interference in his family life (forbidden by Article 8) since the Court thought that the principles of Gül v. Switzerland (1996) were applicable here, too. Those principles were the following: (a) The extent of a State’s obligation to admit to its territory relatives of settled immigrants will vary according to the particular circumstances of the persons involved and the general interest. (b) As a matter of well-established international law and subject to its treaty obligations, a State has the right to control the entry of non-nationals into its territory. (c) Where immigration is concerned, Article 8 cannot be considered to impose on a State a general obligation to respect immigrant’s choice of the country of their matrimonial residence and to authorise family reunion in its territory. As for this particular case, the Court believes that Ahmut was not prevented from maintaining the degree of family life which he himself had opted for when moving to the Netherlands in the first place, nor is there any obstacle to his returning to Morocco. Even if it may well be that Salah Ahmut would prefer to maintain and intensify his family links with his son in the Netherlands, the Court states that Article 8 does not guarantee a right to choose the most suitable place to develop family life. The Court feels not obliged to go into the question whether the relatives of Ahmut’s son living in Morocco are willing to take care of him, since Ahmut has arranged for him to be cared for in Morocco by sending him to a boarding school. The conclusion of the Court is that, in the circumstances, the respondent State cannot be said to have failed to strike a fair balance between the applicant’s interest on the one hand and its own interest in controlling immigration on the other.

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The Sen case (2001) is ambiguous: firstly, the Court admits a dynamic concept of family life that may suggest a change for future cases; secondly, however, the Court invokes its case law (the mentioned Gül case) and constructs a ratio decidendi centred on the fact that the parents of nine-year-old Sen were living at the time in the Netherlands with two more younger children born and bred in this country. Their eldest daughter – nine-year-old Sen – therefore should be allowed a resident permit to join all of them. To my mind – and very unfortunately if we take into account the struggle at the Human Rights Court for children’s rights – a careful reading of the sentence does not give the impression of this argument being an a fortiori kind of argument in addition to the new dynamic concept of family life, but the very core of the ratio decidendi in this particular sentence. The Case of Moustaquim v. Belgium (1991) deals too with family reunification, but the facts of the case are quite different from the previous related cases. Moustaquim arrived at the age of one in Belgium with his parents. Moustaquim had a resident permit. During his teenage years he became a young delinquent and was sentenced several times. When he reached the age of twenty-one he was deported from Belgium. The Court’s decision was to consider a violation of Article 8 but not of Article 14. Let us see its argumentation in relation to this latter. The answer of the Court to Mr. Moustaquim’s claim to being a victim of discrimination on the grounds of nationality, contrary to Article 14 taken together with Article 8, vis-à-vis juvenile delinquents of two categories (those with a Belgian nationality and those from the European Communities, who could not be deported), is to my understanding question begging: the European Human Rights Court merely maintains that Article 14 safeguards – it says – individuals placed in similar situations from any discriminatory differences of treatment in the enjoyment of the rights and freedoms recognised in the Convention. In this instance, the Court maintains, the applicant cannot be compared to Belgian juvenile delinquents: nationals (as well as nationals from other European States) have a right of abode in their own country and cannot be expelled from it (Protocol 4 of the Convention), and this cannot be extended to those aliens enjoying a resident permit. But, I believe, invoking Article 14 as the applicant did would have required more argumentation on the side of the Court. I will later elaborate on this point. In the case of Bensaid v. the United Kingdom (2001) it is the mental health interest of this Algerian national that is at stake. In 1995 – already in the United Kingdom – he experienced the first symptoms of a psychotic illness (schizophrenia). From that time he started receiving antipsychotic medication (olanzapine). He entered the country as a student, gained nationality due to a marriage, and then lost it since the authorities considered that the reasons for him to have it were no longer applicable. No other permit was given due to the fact that the authorities considered too that the previous nationality had been ob-

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tained by deception (i.e. his marriage of convenience). He was given notice of the government’s intention to remove him from the United Kingdom. The Court examines whether there is a real risk that the applicant’s removal would be contrary to the standards of Article 3 (prohibition of inhuman or degrading treatment) in view of his current medical condition. The Court observes that the applicant faces the risk of relapse even if he stays in the United Kingdom as his illness is long term and requires constant management. Removal will arguably increase the risk, as will the differences in available personal support and accessibility of treatment. But since medical treatment is available to the applicant in Algeria, the fact that the applicant’s circumstances in Algeria would be less favourable than those enjoyed by him in the United Kingdom is not decisive in the eyes of the Court from the point of view of Article 3. The risk in terms of his illness is – according to the Court – to a large extent speculative. The Court refuses violation of Article 8 (respect for his private life) and upholds the government allegations for the case: the state immigration policy was necessary for the economic well-being of the country and the prevention of disorder and crime. The applicant was seeking continued medical treatment at the expense of the British taxpayer, adding to the already considerable burdens of the National Health System. There would be seriously destabilising effects if the NHS became liable for providing treatment to a potentially open-ended class of non-European Union citizens. In the Cisse v. France Case (2002), we can learn too the balance of interests as established by the Court. Cisse was a member of a group of aliens without residence permits who in 1996 decided to take collective action to draw attention to the difficulties they were having in obtaining a review of their immigration status in France. Their campaign culminated with the occupation of St. Bernard’s Church in Paris on 28 June 1996 by a group of around 200 “sans papier” immigrants, most of whom were of African origin. They were supported by the priest and his parish council (the religious ceremonies took place without incident). Ten men within the group decided to go on hunger strike. On 22 August 1996, the Paris Commissioner of Police signed an order for the total evacuation of the premises. It was made on the grounds that the occupation of the premises was unrelated to religious worship; there had been a marked deterioration in the already unsatisfactory sanitary conditions; padlocks had been placed on the church exits; and there were serious sanitary, health, peace, security, and public-order risks. The following morning the police carried out the evacuation. All the occupants of the church were stopped and questioned. Whites were immediately released while the police assembled all the darkskinned occupants, apart from those on hunger strike, and sent them by coach to an alien’s detention centre. Orders were made for the detention and deportation of almost all of those concerned. The Court does not share the government’s view that the fact that the applicant was an illegal immigrant sufficed to

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justify a breach of her right to freedom of assembly; however, the Court notes that even though it was peaceful and did not in itself entail any disturbance of public order or prevent churchgoers from attending services, after two months the continued occupation of the church by illegal immigrants, including the applicant, had developed into a situation in which the hunger striker’s health had deteriorated and sanitary conditions had become wholly inadequate. In these circumstances, the Court accepts that restrictions on the exercise of the applicant’s right to assembly may have become necessary. The Court regrets that such methods were employed. However, it notes that the police could quite lawfully intervene under domestic law without a request from the priest and that the authorities’ fear that the situation might deteriorate rapidly and could not be allowed to continue much longer was not unreasonable. Therefore, the European Human Rights Court did not consider the interference disproportionate. 2.2. What follows is a tentative outline of the rules that could be drawn from those assessments of the European Human Rights Court: – Family reunification vs. economic well-being of the country a) If most members of the family (couple and children) are immigrants already with resident permits, then it might be a good reason to privilege this over the economic well-being of the country (see Moustaquim and Sen cases). b) If only a parent is a resident or a naturalised person, even when the seeker of a resident permit is a minor, then the economic well-being of the country is privileged, the child is refused the permit, and the parents are invited to move out of the country to enjoy the family life that they wish to have (Ahmut case). – Health Risks vs. economic well-being of the country a) If there is no evidence that the health of the undocumented immigrant (even if formally resident) under treatment is going to be dramatically affected with deportation, then the economic well-being of the country should be privileged. The burden of proof as to health risk lies with the applicant (Bensaid case). – Interference in personal life vs. security, prevention of disorder, and crime a) An immigrant with a residence permit having committed criminal offences could be imprisoned and then deported when this is a reasonable measure to fight for prevention of disorder and crime. The Court, without further argumentation, believes that nationals and aliens with a permit cannot be considered to be in equal circumstances for this purposes; according to the Human Rights Court, the different treatment in the sphere of criminal law

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is not to be considered a violation of Article 14 (equal treatment) of the Convention (Moustaquim case). – Freedom of assembly of undocumented aliens in order to denounce the treatment they were receiving under certain immigration law vs. security and public order risks a) Undocumented immigrants’ freedom of assembly should be “tolerated” for a certain time (two months is considered a reasonable period). Beyond that, security and public order should prevail. Deportation is legitimate. 2.3. And some further remarks. a) The right to family reunification is not applicable on the same terms to full citizens and to naturalised citizens (Ahmut case). As for what concerns rights that should be implemented and protected, “as a matter of laws,” there are metecos in our societies. b) I believe that Moustaquim, the applicant in the Moustaquim vs. Belgium case, pointed to one morally dubious element of our criminal systems. I am not here considering – even if I do not prejudice such other cases – the case when an undocumented individual commits a crime and once she/he has been released from imprisonment, a deportation order follows pursuing in such a way the re-establishment of a particular status quo. In this latter case, deportation is an administrative measure that, dubious as it might be, does not call for the specific kind of consideration that is at stake when we deal with the double penalty suffered by those whose status is of alien-with-residence permit. As I mentioned before, the very well-established notion in our state legal practices of the alien/citizen distinction leads the Court to a sort of question-begging fallacy found in the Moustaquim case. This type of discrimination is forbidden by Article 15 of the Convention – writes the Court – only when individuals in equal circumstances are not equally treated. The Court considers it sufficient to argue that a resident alien is not equal to a citizen as far as legal consequences due to criminal offences. But the question to be considered is whether it is morally legitimate to establish a criminal system that burdens part of the population residing in a political community (those with a residence permit) more heavily for the same kind of wrongs. The class of metecos seems to appear again challenging the alleged moral foundations – and with it the legitimacy – of our societies. c) The Bensaid case also highlights the immigration practices in our jurisprudence. It certainly might be the case that providing treatment to a potentially open-ended class of non-citizens might have destabilising effects on the National Health System of a certain country, but the case at stake could have allowed the Court (as it did happen in one of the particular votes) to consider, under the circumstances of the case (the applicant had been a resi-

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dent for some years and had been receiving medical treatment), violation of Article 3 (prohibition of degrading treatment) of the Convention. Otherwise, even from a minimal critical approach, we are forced to wonder which sort of relation and in what kind of commitments we are morally compelled to engage with those individuals once accepted into the community. Later we will look at Walzer’s opinions on the immigrant case in this regard. d) The circumstances of the Cisse case lie close to absolute vulnerability. Wouldn’t protection of the right to assembly especially when the agents belong to a particularly vulnerable group (people contesting migratory policy facing immediate deportation) require further duties on the side of the State? To my understanding the lessons drawn from the European Human Rights Court leave little place for optimism. As for now the citizen status seems to be – as Carens (1987) poses it – like a feudal barrier to mobility (this is ultimately the case of those on the bottom line of vulnerability in the Cisse case), to be fully protected against legal double penalty (as in the Moustaquim case), and to be taken seriously even when claiming family reunification (particularly in the Ahmut case). Many will at this point think: things are far more complex. I am sure they are. But hopefully these former assessments from the Court were uncomfortable enough to cast some doubts on the alien/citizen distinction. This was my aim.

3. Immigration, Frontiers, and Asylum Policies in the E. U. The main lines of what are intended to be the convergent immigration European Union policies can be drawn from the presidency conclusions of the Tampere (1999), Laeken (2001), Thessaloniki (2003), and Brussels (2003) councils. Let me start with a paragraph from one of those documents (Tampere) which is dramatically illustrative of the tensions at stake: “From its very beginning European integration has been firmly rooted in a shared commitment to freedom based on human rights, democratic institutions and the rule of law. The challenge of the Amsterdam Treaty is now to ensure that freedom, which includes the right to move freely throughout the Union, can be enjoyed in conditions of security and justice accessible to all. It would be in contradiction with Europe’s traditions to deny such freedom to those whose circumstances lead them justifiably to seek access to our territory. This in turn requires the Union to develop common policies on asylum and immigration, while taking into account the need for a consistent control of external borders to stop illegal immigration and to combat those who organise it and commit related international crimes. ... A common approach must also be developed to ensure the integration into our societies of those third country nationals who are lawfully resident in the Union.”

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The main threads of these documents lead to a clear distinction in terms of treatment between undocumented immigration and documented immigration: (1) The European Union must ensure fair treatment of third-country nationals who reside legally on the territory of its Member States. A more vigorous integration policy should aim at granting those rights and obligations comparable to those of EU citizens. The European Council endorses the objective that longterm, legally resident, third-country nationals be offered the opportunity to obtain the nationality of the Member State in which they are residents (Tampere, 1999). Non-discrimination in economic, social, and cultural life should be enhanced and measures against racism and xenophobia should be developed; considering that successful integration contributes to social cohesion and economic welfare, such a policy should cover factors such as employment, economic participation, education and language training, health and social services, and housing and urban issues, as well as culture and participation in social life. In this respect the European Council welcomes the fact that agreement has been reached on the Directives on family reunification and long-term resident status, which are essential instruments for the integration of third-country nationals (Thessaloniki, 2003). The borders will be open when economic and demographic developments allow for it and, under those circumstances, especially to those persons coming from countries that share a historical and cultural link with the host country (Thessaloniki, 2003). In Brussels (2003), it is recognised that each Member State is responsible for the number of legal immigrants admitted to its territory. (2) As for undocumented immigrants, measures tend to be hardening. Management of frontiers, the visa control system, and the return of “illegal” migrants to their home countries are the main features of the convergent immigration policy. 4. Conversations on Legitimacy at the Border Line 4.1. One very settled assumption on membership in a particular political community is that those who were born in a certain territory or born of parents who were citizens of a polity are more entitled to the benefits of citizenship than the “casual” applicant for membership. In “Aliens and Citizens” (Carens, 1987), we can find some of the most recurrent conventional arguments against open borders (see also Sidgwick 1891): a) Immigration would reduce the economic well-being of current citizens. b) Immigration flows would destroy the culture and history of the particular society. The character of the country and its internal cohesion might be affected by casual aggregates.

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c) Immigration flows would affect the order and integrity of the domestic political process. 4.2. In the following paragraphs, I will, very briefly, introduce Walzer’s, Singer’s, Habermas’s, and Ackerman’s analyses in relation to the open border debate. These analyses, as we will see, challenge – to a different degree – various aspects of our current immigration practices. We will see, therefore, which of the mentioned conventional arguments against open borders are acceptable from their point of view and which do not pass the moral legitimacy test. 4.2.1. Even if Walzer’s work (Spheres of Justice, 1983) has been the standard reference source when trying to legitimate closed borders, there is a part of his analysis that, to my understanding, has not been sufficiently attended to, that is, his opinions contesting the current policies on guest workers (economic immigration with residence permits) in Western societies. I will refer to this latter aspect of his theory afterwards. In Walzer’s theory, the closure of borders is – assuming some restrictions – legitimate. Admission policies, Walzer tells us, are shaped partly by arguments about economic and political conditions in the host country, partly by arguments about the character and “destiny” of the host country, and partly by arguments about the character of countries (political communities) in general. This latter is the most important, for our understanding of countries in general will determine whether particular countries have the right they conventionally claim to distribute membership for (their own) particular reasons. Walzer argues that since distinctiveness of culture and groups is a value, as most people seem to believe, and there is not distinctiveness without closure, then closure must be permitted somewhere. Walzer works his argument through a series of rough comparisons: neighbourhoods, clubs and families; the question at stake is what should countries be like? One can argue for particular admission standards by appealing to the condition and character of the host country and to the shared understandings of those who are already members. As in clubs, individuals may be able to give good reasons why they should be selected, but no one on the outside has a right to be inside. Such arguments have to be judged morally and politically as well as factually. But, as a matter of fact, citizens often believe themselves morally bound to open the doors of their country, perhaps, not to anyone who wants to come in but to a particular group of outsiders, recognised as national or ethnic “relatives.” In this, says Walzer, states resemble families rather than clubs, for it is a feature of families that their members are morally connected to people they have not chosen, who live outside the household. The State recognises what we can call the “kinship principle” when it gives priority in immigration to the relatives of citizens. It is a way of acknowledging that labour mobility – as Walzer elaborates further on – has a social price: since labourers are men and women with families, one cannot admit them for the sake of their labour without accepting some commitment to their aged parents or to their sickly brothers and sisters. In this regard,

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Walzer’s main argumentative line flows in this way: political justice is a bar to permanent alienage. Democratic citizens, then, have a choice: if they want to bring in new workers, they must be prepared to enlarge their own membership; if they are unwilling to accept new members, they must find ways within the limits of the domestic workforce to get socially necessary work done. No democratic state can tolerate the establishment of a fixed status between citizen and foreigner (though there can be stages in the transition from one of these political identities to the other). Men and women are either subject to the state’s authority, or they are not; and if they are subject they must be given a say, and ultimately an equal say, in what that authority does. Otherwise, Walzer concludes, the community is transformed into a tyranny (Walzer, 1983, 60– 61). Walzer’s claims alone, you might agree, contest some of the current practices of our states: equal treatment to those accepted in our midst is not a reality (see the recent, above-mentioned trials at the European Court of Human Rights). But I think there is still a place for more criticism. Walzer’s arguments allow for a very restrictive immigration policy. As some liberals (such as Singer and Habermas) have argued, his theory somehow legitimises current restrictive entry policies. I do agree. He does not contest the second conventional argument against immigration (immigration flows would destroy the culture and history of the particular society; the character of the country and its internal cohesion might be affected by casual aggregates), far from that he maintains that the preservation of the identity of a particular culture and history justifies exclusion from the community of, especially, a certain class of aliens. As I said, other authors have challenged this constraint and have also been explicitly more critical to the argument from the “economic well-being of the country.” 4.2.2. In “Insiders and Outsiders” (Practical Ethics, 1993), and after denouncing the opulence of Western societies, Singer claims that immigration policy should be based on the interests of all those affected. Where the interests of different parties conflict, there we should be giving equal consideration to all interests. This would mean, Singer maintains, that more pressing or more fundamental interests take precedence over less fundamental interests. For these purposes, the interests at stake are, on the one hand, those of the refugees themselves: sometimes the interests of the refugees in being accepted are as basic as the interest in life itself while in other cases the situation may not be one of life or death but still profoundly affect the whole course of a person’s life (such is the case of the economic refugees, my current concern). On the other hand, the next most directly affected group is that of the residents of the recipient’s nation. How much they will be affected, Singer argues, will vary according to how many refugees are taken, how well they will fit into the community, the current state of the national economy, and so on. As a matter of fact, some

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residents will be more affected than others: some will find themselves competing with the refugees for jobs while others will not; some will find themselves in a neighbourhood with a high population of refugees, and others will not; and this list could be continued indefinitely, too. We should not assume, Singer remarks, that residents of the recipient nation would be affected for the worse: the economy may receive a boost from a substantial intake of refugees, and many residents may find business opportunities in providing for their needs. Others may enjoy the more cosmopolitan atmosphere, etc. There are also some other possible and more diffuse consequences, notes Singer, that we at least need to think about: a less restrictive boundaries policy would encourage the flow of refugees in the future; the increasing population might place an additional demand on welfare services (e.g. language classes, housing in the first months, and job placement and retraining). We also may wonder if the increased numbers will lead to a revival of racist feeling in the community. Nevertheless, not taking people also may have negative effects: economic stability and world peace depend on international co-operation based on some measure of respect and trust. What is in Singer’s opinion the right balance of those interests at stake? He creates a hypothetical argument: the interests of the refugees in resettlement in a more prosperous country will always be greater than the conflicting interests of the residents of those countries. Would this imply that the principle of equal consideration of interests points to a world in which all countries should continue to accept refugees until they are reduced to the same standard of poverty and overcrowding as the third world countries from which the refugees are seeking to flee? The acceptance of immigration should not go so far, Singer claims: it might be a point at which, for instance, the resident community had eliminated all luxuries that imperilled the environment and yet the basic needs of the expanding populations were putting such pressure on fragile ecological systems that a further expansion would do irreparable harm. Or there might come a point at which tolerance in multicultural society was breaking down because of resentment among the resident community whose members believed that their children were unable to get jobs because of competition from the hard-working new arrivals; and this loss of tolerance might reach the point at which it was a serious danger to the peace and security of all previously accepted refugees and other immigrants from different cultures. Only when any such point had been reached would the balance of interests have swung the other way. Still, Singer concludes, present refugee intake might increase quite dramatically before any consequences like those mentioned above were reached. Singer’s theory (unlike Walzer’s) does not consider the preservation of a particular culture, history, and character of the country as a serious argument against open borders. The economic well-being of the current citizens (to a certain legitimate extent which in Singer’s theory does not at all imply uncritical

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acceptance of the current status quo) and the order and integrity of the domestic political process are still legitimate interests to stop entry. 4.2.3. Habermas, in his article “Citizens and National identity” (1990), like Singer, denounces the opulence of Western societies and underlines how the political availability to integrate immigrants depends on how the local population understands the social and economic consequences of the phenomenon (perhaps then a great deal of important data research should be done for the purposes of uncovering certain prejudices). To his mind, the moral point of view forbids us to contemplate this problem merely from the perspective of inhabitants of affluent and peaceful societies; we must equally take into consideration the perspective of those who flee to foreign continents in search of refuge, in other words, of a life that is worth living. Besides, the question whether there is a legal claim to immigration is particularly relevant in the situation we are facing these days, when the desire to immigrate visibly exceeds the willingness to accept those who wish to do so. An obligation to provide assistance results especially from: (a) the growing interdependencies of the global society that has become extensively intermeshed through the capitalist world market and electronic mass communications; (b) the historical fact that Europe profited from migratory flows in the past and from a history of colonisation; and (c) the uprooting of regional cultures by the invasion of capitalist modernisation. Habermas considers that the case for economic refugees especially challenges a policy relying on special duties as opposed to universal duties. A plausible answer to this problem, he maintains, calls for an analysis from a liberal perspective of the reasons underlying special obligations. The basic line of his argument follows Henry Shue’s analysis in “Mediating duties” (1988). If special duties are the product of a co-ordination of division of moral work (as Shue maintains) and not close spheres of moral responsibility (as some communitarians have argued), then there is a case for accepting that we do have moral responsibility beyond our political community frontiers, especially for our purposes I should add, to those who are victims of the failure of the institutions (such as states) socially designed for the implementation of human rights. Habermas’s position is initially quite strongly on the side of open borders. He maintains that if we take seriously the claim of someone who wants to immigrate in order to reach a free and dignifying existence (and here he is thinking about the economic refugee, in Singer’s terminology), one might have strong arguments (from Rawls’s original position) for claiming a right to immigrate. Restrictions to that right could only be considered legitimate with equal interest such as avoiding great conflicts and burdens of such a magnitude that would end up putting at risk public order and the economic development of the society. Unlike in Walzer’s theory, according to Habermas’s, neither the common ancestry nor a common language or education could support certain privileges of this sort. The right of a community to preserve the integrity of its citizens’ way of

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life to be acceptable should be understood in non-particularistic terms: this, as a matter of fact, would take us to the conventional argument “c) Immigration flows would affect the order and integrity of the domestic political process.” But, let us elaborate more on Habermas’s arguments opposed to the second conventional argument against immigration and the supposed dangers of leaving a community – if a less restrictive policy were maintained – without identity. Habermas draws from the paradoxes of the communitarian thesis once we accept that in many cases we are living in polities that adhere to universalistic constitutional principles. When it is the case that the particular polity political culture is bound to universalistic constitutional principles, immigrants should be expected only to be willing to accept the political culture of their new home without having to give up the cultural way of life of their origins. Political integration does exclude fundamentalist cultures of immigrants. But it does not otherwise justify compulsory assimilation in favour of the self-assertion of the cultural way of life prevalent in that country (Habermas, 1993). Or in Carens’s words: “People live in communities with bonds and bounds, but these may be of different kinds. In a liberal society, the bonds and bounds should be compatible with liberal principles. Open immigration would change the character of the community, but it would not leave the community without any character” (see Carens, 1987). The moral right to immigrate that might be based on the combination of reasons mentioned above does not justify in Habermas’s opinion guaranteeing individual legal rights to immigrate, but compels us to practice a liberal policy of immigration which opens one’s own society to immigrants and manages the flow of immigrants in line with existing capacities. Like Singer, he considers that the threshold for absorbing immigrants has not been reached in the European societies, which are shrinking demographically and are still dependent on immigration, if for economic reasons alone. The moral justification for a liberal immigration policy, moreover, also engenders according to Habermas the obligation not to limit the immigration quota to the economic needs of the recipient country, in other words, to the “welcome skilled professionals,” but to establish it on the basis of criteria which are acceptable from the point of view of all parties involved (Habermas, 1990). Sound reasons to be acknowledged are in this author’s opinion the preservation of the social and economic stability – as far as their legitimacy is not under question I should add – of our systems. 4.2.4. Finally, Ackerman’s dialogue at the border in Social Justice in the Liberal State (1980) is especially enlightening. Besides, it will help me to introduce my critical analysis of the alien/citizen distinction in light of the human dignity principle. Ackerman invokes neutral dialogue as the only dialogue morally sound. Under those constraints for legitimate organisation of liberal societies a power

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structure would be illegitimate if it can be justified only through a conversation in which some person (or group) must assert that she/he is (or they are) the privileged moral authority. Neutrality implies in Ackerman’s terms that no reason is a good reason if it requires the power holder to assert (a) that his conception of the good is better than that asserted by any of his fellow citizens or (b) that, regardless of his conception of the good, he is intrinsically superior to one or more of his fellow citizens. Let us see now how he approaches the immigration topic. Ackerman maintains that a liberal state cannot operate as if it were a private club, blackballing potential members who do not please its present constituents. The liberal state is not a private club; it is rather a public dialogue by which each person can gain social recognition of his standing as a free and rational being. Under those conditions: I cannot justify my power to exclude you without destroying my own claim to membership in an ideal liberal state. Ackerman scrutinises the established idea that we have the right to exclude non-residents from our midst. Ackerman constructs a hypothetical dialogue in a hypothetical world divided into two nation states: the poor East and the rich West. He makes us hypothetically assume that Western domestic institutions are organised in a liberal sort of way while the East is an authoritarian dictatorship in which a small elite explicitly declares its superiority over the exploited masses. Finally, he invites us to assume that as part of its response to this dark reality, the West has adopted a forthcoming immigration policy, admitting a large number, Z, of Easterners on a first-come, first-served basis. As a matter of fact, Z is so large that it strains the capacity of Western institutions to sustain a liberal political conversation. The presence of so many alien newcomers will generate such anxiety in the native population that it will prove impossible to stop a Fascist group from seizing political power to assure native control over the immigrant underclass. Nevertheless, the Easterners keep coming at an awesome rate; the scene takes places at the armed Western border: E: I demand recognition as a citizen of this liberal state. W: We refuse. E: What gives you the right to refuse? Do you think I would fail to qualify as a citizen of an ideal liberal state? W: Not at all. E: Do you imagine you’re better than me simply because you’ve been born west of this frontier? W: No. If that were all, I would not hesitate before admitting you. E: Well, then, what’s the trouble?

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W: The fact is that we in the West are far from achieving a perfect technology of justice; if we admit more than Z newcomers, our existing institutions will be unable to function in anything but an explicitly authoritarian manner. E: But why am I being asked to bear the cost of imperfection? W: Sorry, we are doing everything we can. But Z is the limit on immigrants. E: But you are not doing everything. Why not expel some of your native-born Westerners and make room for me? Do you think they are better than I am? W: Z is the limit on our assimilative capacity only on the assumption that there exists a cadre of natives familiar with the operation of liberal institutions. If some of the natives were removed from the population, even Z would be too many. E: So what am I to do? I will be dead before I get to the front of the line of immigrants. W: Go back among your own people and build your own liberal state. We will try to help you out as best as we can.

A hard conversation, claims Ackerman. You might agree. As in Habermas’s theory, the preservation of liberal institutions is a legitimate constraint for immigration policy making. I will not try to scrutinise the complexities of the argument against removing current native members; this will take us far beyond any realistic approach to social justice and current possibilities to change immigration policies. I should though consider the burden on the individual number Z+1. This, I believe, leads us to notice the tension between institutional reasons and substantial reasons that appears at the frontier conversation, or as Ricoeur beautifully poses it (see also Atienza 2001), the tension between the generality of the legal rule and the consideration to the dignity of the single human being (see Ricoeur, Le juste, 1995). But let us continue with Ackerman’s argumentation. It would be silly to insist that immigration authorities make an individualised showing that the admission of a particular E would lead to an illiberal upheaval. Since authoritarian revolutions cannot be predicted with accuracy, the most we can demand is that statesmen set an overall Z conscious of an immigrant’s prima facie right to demand entry into a liberal state. We are not entitled to deny this right simply because they have been born on the right side of a boundary line; nor can they escape the demands of dialogue simply because they would find sharing “their” wealth inconvenient. For the question is, precisely, why E do not have a claim to an initial starting point that is equal to the position enjoyed by W. After all, are they not at least as good as we are (Ackerman, 1980, 95)? Like Habermas, Ackerman maintains that the only reason for restricting immigration is to protect the ongoing process of liberal conversation itself. The people living on the rich side of the line, states Ackerman, would be obliged to

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make serious sacrifices in self-regarding investment if they hoped to show their liberalism to be more than gross pretence. There are though more and less illiberal ways of managing the intractable dilemmas of foreign policy, but the two terrible answers are, according to Ackerman, in the background of a liberal world where population growth has outstripped resource development, and of course as far as that has been the case: freedom without legitimacy or legitimacy without freedom.

5. The Principle of Human Dignity and the Egalitarian Requirements 5.1. Ackerman’s theory takes as to the very extreme case, helping us face unavoidable tensions. But to conclude this way, I believe, would imply being extremely condescending with the functioning of our current institutions. It may be that we cannot avoid some moral dilemmas; but it also may be that these situations of tragic choice are sometimes the outcomes of prior morally unsound actions (see Gowans, 1987). 5.2. So far I have elaborated more specifically possible arguments that the community (the group of individuals currently constituting a political community) can claim so as to legitimise certain entry restrictions. Let us go to the other principle at stake: the principle of human dignity. The principle of human dignity is the engine of the egalitarian ideal, the formula “Equal treatment of people” has played (as Bobbio –Igualdad y Libertad, 1977, 68–70, 92 – poses it) a revolutionary role in history and it is – even if in a controversial Marxist interpretation of history – one of the impulsive forces for historical progress. Each attempt to put an end to any sort of discrimination, any step undertaken towards inclusion, can be – under this paradigm – considered progress. Judgements on the relevancy of factual human differences are value judgements and they must be supported by a sound moral theory. The history of men and women is a history filled with assumed-to-be relevant differences whose alleged moral legitimacy was subsequently placed under question. The gender-based reasons for excluding women from political and further public life throughout history might inspire us to project ourselves into a time trip that might help us to recover the moral approach due. That is, the moral dimension of our decisions to include or exclude people when considering eligibility to social welfare benefits, employment, and, finally, participation within the institutional political life. 5.3. The alien/citizen distinction is based on an immutable characteristic (such as alienage) over which the individual can exercise no control, whereas the principle of dignity prescribes men to be treated according to their decisions, intentions, and expressions of consent. In so far as we adopt this prin-

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ciple and have no justification for adopting other principles, then the illegitimacy of any measure which discriminates among human beings emerges through the distribution of resources on the basis of factors which are not subject to their will (see Nino, The Ethics of Human Rights, 1991). 5.4. It has been argued that in the case of economic refugees, the alien/citizen qualification is under the agent’s control since the agent freely agrees to place herself/himself under the legal system of a different country gaining in such a way the status of alien or non-citizen (Hierro, 1995). I will try to contest this argument by elaborating on the concept of human dignity. To speak about control is to speak of voluntary acts. We can say that an act is voluntary in two different ways: (a) when it is the outcome of the will of the individual and neither physical compulsion nor reflex movements meet – the will of the individual is then the outcome of her/his own balance of reasons; (b) when in the process of formation of the will neither coercion nor fear meet. Under this definition it could be the case that certain reasons are so heavy a burden in the act of balancing (we cannot blame someone for acting upon them: such as in my giving the money to the burglar when she points a gun at me) that they might “determine” the outcome of the balance. That is, they determine the will and in this sense we cannot consider it free – the action was not truly under the control of the individual. My claim is that the principle of dignity is related to this second interpretation of the idea of a voluntary act. In this sense, even if the immigrants do freely in the first sense initiate their trip, it is not true that they freely do so in the second sense. Let me suggest the notion of determinism of reasons. To take dignity seriously, I – tentatively – believe, will imply to consider as voluntary only those acts of the person that are not determined by reasons that could not be reasonably expected to be put aside. That is, there are certain reasons that from a normative point of view cannot be expected to be outside of our balance of reasons, those special kinds of reasons compel us to act in a certain way. In that sense their act was not free. 5.5. Even if it might be right to argue against the consideration that economic refugees freely place themselves under our legal systems and that therefore we violate their dignity when we enforce the consequences of our legal systems, this argument still misses the point. The relevant question is not whether the agent placed herself voluntarily or not under a foreign legal system but whether human dignity and the requirements of equality are violated when she is denied entry (a) to the territory and to the job market, (b) to eligibility for social welfare, or (c) to the political community, merely on the basis of her alien status. Since the socially constructed distinction (both political and legal) relies on a feature that the agent cannot control, I believe that the distinction at stake could only claim legitimacy if it was possible to draw a morally sound justification of states (a justification that might then help to legitimise the otherwise morally dubious alien/citizen distinction).

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5.6. Maybe it could be argued that the institutional design underlying this distinction is itself legitimate in terms of (as Shue claimed in “Mediating duties” – 1988) the best division of work as to fulfilment of our positive duties towards our fellow human beings. Only to that extent could the distinction play a legitimate role. In a well-ordered society of peoples (as it was pictured by Kant, Zum ewigen Frieden, 1795; and later by Rawls, The Law of Peoples, 1999), such a distinction would play the mentioned role; in such a world people will most probably not be willing to move as they do currently (as a matter of fact, it seems that people have a tendency to remain in their native land if they can foresee a decent life there). Under those possible though still ideal circumstances, when someone came to the border none of the legitimate arguments for exclusion (preservation of the economic and social system) would be applicable since numbers will be less elevated than they currently are. So at the border, the distinction will not be admissible. But, let us come to the current status quo of the world: I believe that the legitimacy of the limitation in the number of admissions to a certain Z so to preserve legitimate economic development and liberal institutions could only be subscribed if two additional conditions are met: a) When the social system is at risk due to a possible upheaval of racist members of our societies it is true, hard as it is, that immigration policies should take into consideration these dangers. But since that threat to public order does not emerge caused by the unintended cumulative effect of individually just action [see Rawls, 1999] but from current citizens rioting to prevent others from exercising legitimate freedoms, I believe that a truly democratic policy should take into account the real economic consequences of migration flows while trying to fight against racism and xenophobic prejudice. b) The legitimate limitation is nevertheless in tension with the need to attend the particular reasons of the person at the border. Why should, as Ackerman poses it, the person Z+1 be burdened with the cost of the functioning of the system? I should suggest that since we, as it seems, have been compelled to face this tension between institutional reasons on the one side and the dignity of the individual and the requirements of egalitarianism on the other by previous or current moral wrongs on the side of Western societies – a history of terribly unfair structures of our markets is at least one of the major causes of current economic refugee flows – then we have to be extremely careful with the design of immigration policies. As a matter of fact, under those circumstances, a distinction that is merely dubious becomes morally grotesque.

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Afterword The cynic might claim, “Release our societies from the dignity value and its bothering implications; remove its mention from our constitutional projects.” And still, we are compelled to take a critical approach to our practices if, as Ferrajoli claims, even very realistic reasons – that is, prudential reasons – are invoked our own lives, and not ever more the continued maintenance of our current welfare, might be at stake.

References Ackerman, B. (1980), Social Justice in the Liberal State, New Haven: Yale University Press. Atienza, M. (2001), Los límites de la interpretación constitucional. De nuevo sobre los casos trágicos [1998], in Vázquez, R. (ed.), Interpretación jurídica y decisión judicial, México: Fontamara, 187–213. Baubock, R. (2000), Multicultural citizenship: Towards a European policy, Siirtolaisuus-Migration, 4: 4–14. Bayón, J. C. (1986), Los deberes positivos generales y la determinación de sus límites. Observaciones al artículo de Ernesto Garzón Valdés, Doxa, 3: 35–54. Beitz, C. (1983), Cosmopolitan Ideals and National Sentiment, The Journal of Philosophy, 80/10: 591–600. Bobbio, N. (1993), Igualdad y libertad, trans. by P. Aragón, Barcelona: Paidós. Carens, J. H. (1987), Aliens and Citizens: The case for Open Borders, Review of Politics, 49: 251–273. Cottingham, J. (1986), Partiality, Favouritism and Morality, The Philosophical Quarterly, 36/144: 357–373. Ferrajoli, L. (1999), Derechos y garantías. La ley del más débil, trans. by P. Andrés and A. Greppi, Madrid: Trotta. – (2001a), Los fundamentos de los derechos fundamentales, trans. by P. Andrés et al., Madrid: Trotta. – (2001b), Las razones del pacifismo, Jueces para la democracia, 48: 314. Garzón Valdés, E. (1986a), Algunos comentarios críticos a las críticas de Juan Carlos Bayón y Francisco Laporta, Doxa, 3: 65–68. – (1986b), Los deberes positivos generales y su fundamentación, Doxa, 3: 17–34. – (1993), Intervencionismo y paternalismo [1990], in Id., Derecho, Ética y Política, Madrid: Centro de Estudios Constitucionales, 379–399. Goodin, R. E. (1988), What is so special about our Fellow Countrymen?, Ethics, 98: 663–686. Gowans, Ch. W. (1987), The debate on moral dilemmas, in Gowans, C. W. (ed.), Moral dilemmas, Oxford: Oxford University Press.

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Habermas, J. (1990), Ciudadanía e identidad nacional, in Facticidad y validez, trans. by M. Jiménez Redondo, Madrid: Trotta, 619–643. – (1993), Struggles for recognition in Constitutional States, European Journal of Philosophy, 1/2: 128–155. – (1996), The European Nation State: its Achievements and its limitations. On the Past and Future of Sovereignty and Citizenship, Ratio Juris, 9/2: 125–137. Held, D./McGrew, A./Goldblatt, D./Perraton, J. (1999), Global Transformation: Politics, Economics and Culture, Cambridge: Polity Press. Hierro, L. (1995), Las huellas de la desigualdad en la Constitución, in Reyes Mate (ed.), Pensar la igualdad y la diferencia. Una reflexión filosófica, Madrid: Argentaria/Visor, 131–150. Kant, I. (2001), Sobre la paz perpetua [1795], trans. by J. Abellán, Madrid: Tecnos. Lucas, J. de/Torres, F. (eds.) (2002), Inmigrantes ¿cómo los tenemos?: algunos desafios y (malas) respuestas, Madrid: Talasa. Miller, D. (1988), The Ethical Significance of Nationality, Ethics, 98: 647–662. Nielsen, K. (1983), Global justice and the imperatives of Capitalism, The Journal of Philosophy, 80/10: 608–610. Nino, Carlos S. (1993), The Ethics of Human Rights, Oxford: Clarendon Press. Pogge, T. W. (1999), A Global Resources Dividend, in Crocker, D. A./Linden, T. (eds.), Ethics of Consumption: The Good Life, Justice, and Global Stewardship, Lanham (MD): Rowman & Littlefield: 501–538. Rawls, J. (1999), The Law of Peoples, Cambridge: Harvard University Press. Ricoeur, P. (1995), Le Juste, Paris: Éditions Esprit. Ruiz Miguel, A. (1989), Problemas de ámbito de la democracia, Doxa, 6: 97–120. Santos, B. de Sousa (1995), Toward a New Common Sense: Law, Science and Politics in the Paradigmatic Transition, New York: Routledge. Sassen, S. (1998), Globalization and its Discontents. Essays on the New Mobility of People and Money, New York: The New Press. Sen, A. (1999), Development as Freedom, Oxford: Oxford University Press. – (2002), How to judge globalism, in www.prospect.org Shue, H. (1983), The Burdens of Justice, The Journal of Philosophy, 80/10: 600–608. – (1988), Mediating duties, Ethics, 98: 687–704. Sidgwick, H. (1891), Elements of Politics, London: Macmillan, 1919 (4th ed.), avail. in http://cepa.newschool.edu/het/profiles/sidgwick.htm Singer, P. (1993), Insiders and Outsiders, in Practical Ethics, Cambridge: Cambridge University Press. Twinning, W. (2000), Globalisation & Legal Theory, London: Butterworths. Van Gunsteren, H. R. (1988), Admission to citizenship, Ethics, 98: 731–741. Walzer, M. (1983), Spheres of Justice. A defense of Pluralism and Equality, New York: Basic Books.

HIV Status in Hungarian Law and Practice – Immigration, Social Care, Education, and Employment Eszter Csernus First of all, let me introduce myself briefly. You may have noticed that there is no university mentioned in the program close to my name. At the time I applied to this conference, I was a PhD student at the University of Szeged (Hungary), but I felt the need to get more involved in human rights protection on a daily basis and at a practical level. I have therefore suspended my PhD studies and decided to work full time as a human rights advocate. I have been working with the Hungarian Civil Liberties Union (HCLU) for a year and a half now. HCLU is a local (national) non-profit and non-governmental organisation that deals with human rights issues linked to the following areas: – data protection and access to information of public interest, – harm reduction drug policy, and – patients’ rights – this is the field I am in charge of. It might be clear by now that I have hardly ever dealt with legal philosophy issues and that my approach to health matters will be much more practical than theoretical. It has been really challenging for me to be here. I have to confess that when I realised after arriving here that what I planned to say was probably not of great interest to you, my first idea was to cancel my presentation. But later I changed my mind and decided to try to involve you in a kind of brainstorming and to look together for some possible solutions to the HIV-related problems we face in Hungary. As this presentation is not the result of months and months of research and thinking, I would like to thank all of you in advance for your patience and understanding. I dedicate the following to being a kind of transition between the “real” presentations and the debate we will soon have. Let me give you a short presentation of the Hungarian epidemiological situation and the HIV-related regulations in the country. The first HIV case was diagnosed in Hungary in 1985. Since 1986, blood and blood preparations have been automatically tested.1 This quick reaction by the 1 Ministry of Social Affairs and Health Decree 5/1988 (V. 31.) on the Measures Required for Preventing the Spread of the Acquired Immune Deficiency Syndrome and of Directions for Testing.

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state has probably contributed to keeping the prevalence low: since the appearance of the virus in the country, only a total of 1,000–1,100 cases have been registered. Although according to estimates by the Joint United Nations Programme on HIV/AIDS (UNAIDS) 2,000–3,000 more people are likely to be HIV positive (without knowing that they carry the virus), Hungary’s situation is still a privileged one. The country still has the possibility to prevent a major epidemic. The Hungarian AIDS policy and legislation have been based on the traditional public health approach. HIV/AIDS is still considered to be part of the group of infectious diseases2 like malaria, plague, tuberculosis, etc., and the principles that apply when dealing with it are the same:3 – identification of the infected persons through screening, – reporting of the known cases, – isolation of the infected people, – screening of their environment (contact tracing), and – curing.4 This procedure was worked out to combat diseases which are communicated through everyday contact, which have a brief latency period, and for which there is a widely known therapy for curing them. By contrast, HIV is transmitted only through sexual intercourse or blood and certain kinds of mucus, but not through ordinary social intercourse. The transmission of the virus can be prevented by simply observing certain basic rules of hygiene and of conduct. HIV-positive people may live without symptoms for several years, even decades if they receive appropriate therapy, and can retain their capacity for working, though at present, there is no therapy that would cure those who are infected, nor is there an effective vaccine for preventing the disease. Despite these facts, the traditional public health approach mirrored by the related Hungarian legislation5 means the following in terms of testing, health care, immigration, education, and employment: (1) Mandatory testing without the possibility of getting anonymous results. In December 2002, after a heated debate and thanks to strong civil society pressure, an amendment to the Health Care Act was voted by the Parlia2 Ministry of Welfare Decree 18/1998 (VI. 3.) on the Epidemiological Measures Necessary for Preventing Infectious Diseases and Epidemics. 3 Act CLIV/1997 on Health Care, henceforward “Health Care Act”, and Act XLVII/1997 on the Handling and Protection of Health Related Data and Personal Data Related to Them. 4 What is unfortunately not possible at the moment in the case of HIV/AIDS. 5 Detailed analysis of the Hungarian legislation and the related international documents can be found in HIV/AIDS and Human Rights (Ed. Eszter Csernus), Hungarian Civil Liberties Union, Budapest, January 2004 (http://www.tasz.hu).

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ment. This amendment made possible fully anonymous testing and is considered to be a major achievement compared to the previous rules that allowed only “partly anonymous” testing.6 Unfortunately, some problems have remained: – the group of people who have to undergo compulsory testing is still too wide; – persons who are to be tested without consent don’t have the right to ask for an anonymous test, not even for personal use; – in reality, anonymous tests are not always anonymous, as the state testing facilities often ask for their clients’ health insurance card. (2) Compulsory care and treatment. All of those who need treatment have free access to it, but therapy is provided in only one single hospital in the country. There is an obligation to go on therapy, just as in the case of all other “traditional” infectious diseases, despite the fact that if an HIV-positive person decides not to take medicine, this would not endanger other people’s health. The right to selfdetermination in matters of health care of HIV-positive people is therefore violated. (3) HIV status is not indifferent at the entry to or for the stay in the country. For a short-term visa, applicants only have to declare whether or not they are HIV positive. For a longer-term visa or a residency permit, they have to present medical proof of their HIV status. If the applicant for a long-term visa is HIV positive, immigration authorities can choose to deliver the visa or to refuse the application, but in case of a residency permit, the law doesn’t leave them any choice: they have to refuse the application.7 (4) HIV-positive children are supposed to attend private lessons. There is no rule saying so, and if there was such legislation, it would definitely be unconstitutional; but in reality, exclusion from school of HIV-positive children happens. (5) A negative HIV test is a precondition to more jobs in practice than it should be according to the legislation. The wording of the Health Care Act is too general and, according to the related decree,8 it is the physician of the company who has to decide which 6 The first test (ELISA method) could be anonymous, but if its result happened to be positive, the tested person had to give his or her personal data in order to have access to the second, confirmatory test (Western-Blot method). 7 Act XXXIX/2001 on Aliens’ Entry and Stay, henceforward “Aliens Act”. 8 Ministry of Health and Social and Family Affairs Decree 18/2002 (XII. 28.).

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category of work represents a risk and who has to be tested. In practice, nobody controls or monitors the decisions of the company physicians, although HCLU knows of cases in which being HIV negative was a precondition to being employed as a cleaning person. Why have I summarised these problems for you? Actually, the impression I had of the topics discussed earlier is that the theories or models presented focused mainly on the “pre-legislative stage” of the issues. Questions raised were connected with the legitimacy of forthcoming legislation: How can we assess that there is a duty to help people who are starving very far from us? How can we link science and expertise to decision making? What shall we consider when dealing with bioethics? And so on. These questions are of course extremely important, but I believe that, for example, the principles of and the justifications linked to the fight against HIV/ AIDS have already been laid down and that a wide consensus on what shall be done and how it shall be done to be effective exists. The problem in this field is no longer how to convince the Ministry of Health or the Parliamentary Deputies that the legislation should be changed – although it could take time, arguing with the unconstitutionality of, for example, the provisions of the Aliens Act would certainly be feasible. But having the right provisions adopted is only the first step: one still needs to make them effective, and this is another cup of tea. I have tried to identify the main obstacles we currently face in relation to the above-mentioned issues: (1) People’s decisions are basically motivated by irrational arguments. Most of them know they should not act as they do, but their fear of AIDS is stronger and they just go on acting the wrong way. This is what happened when an HIV-positive teenager was refused access to high school and the Educational Affairs Commission of the local authority decided not to investigate the case. None of the commission’s members wanted to deal with the topic because they felt lucky that they were not in the shoes of the headmaster who dismissed the child. (2) The truth has “lost its credibility”. The World Health Organisation (WHO) and UNAIDS keep on saying that the modern public health approach9 is the effective way of dealing with HIV/AIDS. The testimonies of countries that have achieved some results thanks to this approach and the tragic examples of countries where the epidemic is fuelled by inappropriate strategies are well known. But despite all this, scientific facts are just blown away by the “nothing is ever 100% sure” answer. When it comes to impor9

Based on co-operation with all parties and the full respect of human rights.

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tant decisions – such as those that may have an impact on your life or on your children’s lives – people don’t dare to believe what they are told and prefer to take their own precautions. A possible reason for this is that they have already experienced that official truth can be in fact very far from reality, and they don’t want to take any more risk. (3) People tend to reject automatically proposals and solutions that come from “outside”. International pressure and “shame” can be useful tools sometimes, but they cannot replace inner motivation and will. For example, a lot of amendments have been adopted to comply with European Union norms, but I wonder what percentage of them will be effectively put into practice. If people – those who worded the amendments and those who are supposed to implement them – do not feel that these new rules are theirs, they will not really comply with them.

About the Authors Alemany, Macario Assistant Professor at the University of Alicante (Spain), Legal Philosophy Department. Master’s degree “summa cum laude” in Legal Theory, Brussels, 2000 (European Academy in Legal Theory). PhD in Legal Philosophy, June 2005, University of Alicante (Spain), “Doctor Europeus” honorary mention. PhD Research: “El concepto y la justificación del paternalismo”. Publications: “Las estrategias de la benevolencia. Sobre las relaciones entre el paternalismo y la bioética”, Doxa. nº 26 (2003); “EL paternalismo jurídico”, Iustel (Website of Law); “Las estrategias de la igualdad. La discriminación inversa como un medio de promover la igualdad”, Isonomía, 11, 1999. Alvarez, Silvina MPhil University of Cambridge; PhD Universidad Autónoma de Madrid. Álvarez Ramón y Cajal Professor at the Universidad Autónoma de Madrid, Spain. She has lectured in Philosophy of Law, Legal Philosophy, Human Rights and Women Studies, at several Universities in Spain and abroad. She has been a Visiting Fellow at the European University Institute of Florence and at the University of Oxford. Her main interests are on moral and political philosophy as well as on gender theory and human rights; at the moment she works on the ethical, political and legal aspects of Pluralism and Multiculturalism in Europe. Some of her publications are La corrupción política (co-editor with F. Laporta; Alianza, Madrid, 1997); Feminismos (with E. Beltrán, V. Maquieira, C. Sánchez; Alianza, Madrid, 2001); La racionalidad de la moral (CEPC, Madrid, 2002); ‘Gli argomenti della rappresentanza’ in Ragion Pratica, 21, 2003. Biondo, Francesco Francesco Biondo, degree in Philosophy, PhD in “Human Rights. Evolution, protection and limits”, University of Palermo. Currently he is Research Fellow in Legal Theory at the Dipartimento Studi su Diritto, Politica e Società, University of Palermo. Publications: Benessere, giustizia e diritti umani nel pensiero di Amartya Sen, Giappichelli, Turin 2003, “Conceptions of the Person and Currency of Distributive Justice in Van Parijs and Sen”, in A. Soeteman (ed.), Pluralism and Law. Proceedings of the 20th IVR World Congress Amsterdam, 2001, Volume I: Justice, ARSP Beiheft 88.

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Csernus, Eszter Lawyer, HIV/AIDS and Patients’ Rights Program Coordinator of the Hungarian Civil Liberties Union (HCLU), which has been a leading NGO in the field of drug policy reform advocacy in Hungary. Patterned after the successful model of the American Civil Liberties Union, HCLU provides legal aid service for vulnerable populations, such as drug users, psychiatric patients and people living with HIV/AIDS in addition to its drug policy reform activities.

Donadoni, Paolo Paolo Donadoni obtained a PhD degree in “Bio-ethical Research” from the University of Genoa, Law Faculty. He is a lawyer. His research interests include Ethical theories, Religious-cultural problems and Bioethical matters. Among his publications: La disciplina biogiuridica della clonazione umana, “Materiali per una storia della cultura giuridica”, 2000; Il desiderio e il diritto. Maternità per conto terzi?, “Ragion Pratica”, 2000; La legge 91/’99 sui trapianti d’organo. Quali diritti garantire alla famiglia?, “Famiglia Oggi”, 2001; with Paolo Becchi, Informazione e consenso all’espianto di organi da cadavere, “Politica del diritto”, 2001; Alcune questioni preliminari in tema di clonazione umana, in “Materiali per una storia della cultura giuridica”, 2005.

Fanlo Cortés, Isabel Isabel Fanlo Cortés is Researcher in Philosophy of Law at the University of Genoa. In 2003 she obtained a PhD degree in “Human Rights” from the University of Palermo, and in 2005 a PostPhD degree in legal and political philosophy from the University of Naples, “CRIE” (“Centro di Ricerca sulle Istituzioni Europee”). She has been visiting researcher at the University College (Oxford), at the Newnham College (Cambridge) and more recently at the “Universidad Autonoma” of Madrid. Her main field of study and research regards human rights, access to justice and social policies. Among her publications: Los derechos del niño y las teorías de los derechos: introdución a un debate, in “Bien común y gobierno”, VIII, 88, 2002, and in “Justicia y derechos del niño” (Unicef), 4, 2002; Diritti dei minori e doveri degli adulti. Appunti teorici sul ruolo della comunità internazionale, in “Teoria politica”, 2–3, 2003; La “prima porta”. Riflessioni sull’accesso alle Corti da parte dei non abbienti, in “Materiali per una storia della cultura giuridica”, XXXIV, 1, 2004; Difesa e ruolo del difensore nel processo penale: modelli e ideologie a confronto, in AA. VV., Diritto in trasformazione, E.S.I., Napoli 2005; “Monelli banditi”. Linee evolutive (e involutive) del modello rieducativo nella giustizia minorile italiana, in “Materiali per una storia della cultura giuridica”, XXXVI, 1, 2006. She is also the editor of the book Derecho de los niños: una contribución teórica, Fontamara, México, 2004.

Ferrer Beltrán, Jordi Is Senior Lecturer in Philosophy and Theory of Law at the University of Girona (Spain). He holds a law degree from the Autonomous University of Barcelona and a

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PhD in Legal Philosophy from Pompeu Fabra University (Barcelona, Spain). His research interests concern primilarly questions of legal theory and legal systems. Selected publications: Las normas de competencia. Un aspecto de la dinámica jurídica (2000); Prueba y verdad en el derecho (2002), and a number of articles in Rechtstheorie, Analisi e diritto, Ragion Pratica, Associations, Legal Theory, etc.

Gaido, Paula Paula M. Gaido, Master in Fundamental Rights (Carlos III University of Madrid), doctoral scholarship holder of Conicet (Scientific and Technological Investigation Center, Argentina). Her main work line is developed around the normative claims of law.

Iglesias Vila, Marisa Marisa Iglesias Vila is Professor of Legal Philosophy at Universitat Pompeu Fabra, Barcelona. She holds a law degree from the University of Barcelona and a PhD in law from Universitat Pompeu Fabra. She has been a visiting scholar and researcher at the European Humanities University of Minsk, Oxford University (Balliol College), the Law Faculty of Puerto Rico University, and the Global Law School of New York University. Her main fields of research focus on legal epistemology and theories of interpretation. She is currently working on the justification of political obligations and the scope of individual responsibility in a global age. Selected publications: “Una crítica al positivismo hartiano: El problema del seguimiento de reglas” (1999), Facing Judicial Discretion. Legal Knowledge and Right Answers Revisited (2001), “Los conceptos esencialmente controvertidos en la interpretación constitucional” (2001), “Violencia ambiental, liberalismo y responsabilidad” (2003), “El positivismo en el estado constitucional” (2005), “Justicia global y derechos humanos: hacia una ética de las prioridades” (2005).

Leclerc, Olivier Docteur en droit, Maître de conférences en droit privé (Université Paris 10-Nanterre). Main research interests: science and law, evidence, procedure, comparative law, labour law. Selected publications: Le juge et l’expert. Contribution à l’étude des rapports entre le droit et la science, Paris, LGDJ, 2005; “Sur la validité des clauses de confidentialité en droit du travail”, Droit social, nº 2, 2005.

Lokiec, Pascal Maître de conférences at the University of Paris X-Nanterre. His main areas of teaching are contract law, labour law and comparative law. He has published a thesis on the issue of “contract and power”, in private law, coordinated a book on fundamental rights and social law (with Professor Antoine Lyon/Caen), and written several articles for French legal reviews.

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de Lora, Pablo Pablo de Lora (PhD) is Professor of Jurisprudence and Legal Philosophy at the School of Law of the Universidad Autónoma de Madrid. His main research interests are the philosophical foundations of constitutionalism, human rights and bioethics. He has written several books and articles among which are: “La interpretación originalista de la Constitución” (The originalist interpretation of the Constitution, 1998); “Justicia para los animales” (Justice for animals, 2003), “Entre el vivir y el morir” (Between Living and Dying, 2003) and Human Rights: A Memory (forthcoming 2006). Pozzolo, Susanna Susanna Pozzolo is Researcher in Philosophy of Law at Brescia University. 1993, Bachelor of Law; 1998, PhD in General Theory of Law and Analytical Philosophy; 2000, bar exam. She has received several fellowships to study in Italy and abroad from Genoa University (Spain and Scotland). Among her publications: “Note su Derecho, moral y política di Carlos S. Nino”, “Analisi e diritto 1997”; “La especificidad de la interpretación constitutional”, “Doxa 21”; “La legittimazione attraverso il consenso. A proposito di The Constitution of Deliberative Democracy”, “Notizie di Politeia 1998”; “Un breviario per un’etica quotidiana non può essere consultato come un libro di ricette”, “Ragion pratica 2001”; “Congetture sulla giurisprudenza come fonte”, in L. Triolo (ed.), Prassi giuridica e controllo di razionalità, Torino, 2001; Neocostituzionalismo e positivismo giuridico, Torino, 2001; “Un constitucionalismo ambiguo”, in M. Carbonell (ed.), Neoconstitucionalismo(s), Madrid, 2003; “La ragionevolezza dell’universalismo. A proposito di Tolleranza, responsabilità e Stato di diritto di Ernesto Garzón Valdés”, in “Rivista Trimestrale di Diritto e Procedura Civile 2005”. Roca, Victoria Assistant Professor at the University of Alicante (Spain), Legal Philosophy Department. PhD in Legal Philosophy, November 2002, University of Alicante (Spain). PhD Research: “Derecho y razonamiento práctico en C. S. Nino”. Visiting Researcher at the Yale Law School (USA), Fulbright fellowship (1999–2001). Assistant-member of the Bibliography Section of Doxa. Cuadernos de Filosofía del Derecho. Selected Publications: “¿De qué hablamos cuando hablamos de deberes jurídicos? Algunas consideraciones sobre las fuentes del Derecho a partir de la tesis de Nino del caso especial”, Doxa, nº 25 (2002); “Los presupuestos metaéticos del comunitarismo: la tensión no resuelta entre el realismo y el convencionalismo moral. A partir de La racionalidad de la moral. Un análisis crítico de los presupuestos morales del comunitarismo de Silvina Álvarez”, en Anuario de Filosofía del Derecho, 20 (2003); “Racionalidad judicial: la construcción del caso y sus límites”, Law and Justice in a Global Society. Abstracts, special workshops and working groups, XXII IVR, Congreso Proceedings, Granada, 24–29 Mayo 2005; “Derecho y razonamiento práctico en C. S. Nino”, ed. Centro de Estudios Políticos y Constitucionales (2006).