Definition of the Basic Principles in Bioethics and Biolaw
1. Why these principles?
2. Autonomy
3. Dignity
4. Integrity
5. Vulnerability
6. In the framework of solidarity and responsibility
This article gives a clarification of the foundation and significance of the basic
principles: Autonomy, dignity, integrity and vulnerability. The task is to elaborate the
philosophical and conceptual framework of the definition of the basic principles. The
point of departure is a discussion of the selection of exactly these principles in the
context of the law of the human person, as well as of the ethical and legal status of the
principles. This leads to the definition of each concept and their mutual relations. It is
important to emphazise that the principles rather than being mutually exclusive are
interdependent and presupposing each other in the protection of human beings. Finally, the
definition of the principles will be seen in relation to social solidarity in the modern
welfare state where we experience a transformation of the legal system towards an extended
notion of state responsibility, and also a concern and protection of the vulnerable and
weak in the European societies.
1. Why These Principles?
The selection of "autonomy", "dignity", "integrity" and
"vulnerability" as the four basic principles in bioethics and biolaw intends to
create a solid foundation for the protection of human beings in relation to the fast
developments in biomedicine and biotechnology. These principles can be said to express a
European Ethical and Legal Culture (1) of autonomy and
integrity of the human being. The principles must be seen in the framework of human rights
law and the law related to the human person. Persons are "liberty holders" and
"right-claim" holders. (2) The principles manifest
the concern to protect the person and to value the development of the individual, which is
a strong communitarian tendency in European societies. The principles imply basic human
rights: the right to self-determination of the individual but also the right to protect
the life and existence of the private sphere of the person. Against this background this
article proposes to interpret the basic principles as being at the same time descriptively
present as immanent normativity in the actual bioethical and biolegal developments, and
(at the same time) as being guidelines for the proposal of a future European politics on
bioethics and biolaw.
Among the four principles autonomy is the most widely mentioned in the debate about
bioethics and biolaw. It has also been widely discussed in the Anglo-American bioethical
debate where the principalist philosophies of Beauchamp and Childress in their influential
book Principles of Biomedical Ethics have become the foundation of much research in
bioethics. (3) This book deals with the principle of respect
for autonomy, the principle of non-maleficence, the principle of beneficence and the
principle of justice. It represents an approach of patient autonomy that has been widely
accepted in American — and to some extent — European countries. At the same time
it has a tendency to consider autonomy as the only guiding principle concerning the
protection of the human person forgetting other dimensions of the protection of human
beings which are particularly important in bioethics and biolaw.
Therefore, other supplementary principles must be taken into account when dealing with
autonomy and the protection of human beings in bioethics and biolaw.
The three alternatives to autonomy, namely dignity, integrity and vulnerability will be
clarified and further investigated. They constitute principles that center around the
protection of the private sphere of human beings. They are presented as more fundamental
than the utilitarian approach of quality of life that plays an enormous role in biomedical
decision-making. (4) They express an initiative to reach the
concrete phenomenological reality of the human life-world. It is presupposed that the
basic principles are implicit in the public debate and the everyday understanding of the
ethics of human existence. The principles must be interpreted as expressions of the
ethical understanding of the human person in daily ethical life.
The four principles must also be seen as an expression of the European humanistic
tradition of giving high value to individual human beings and their development in
society. The principles can be interpreted in a personalistic perspective (5)
as a foundation for a European Humanistic Bioethics and Biolaw. As such the principles
draw heavily on the humanistic conception of the person as well as the corporeal
well-being of the person, something which plays an extensive role in the humanism of
French and Italian philosophy. But the traditions of valuing the freedom of the individual
in Northern European countries are also of basic importance for the understanding of the
cultural foundations of the basic principles. The protection of the psychical and physical
being of the person is of the utmost importance in the modern legal systems as caring for
the subject of law. The concept of a just legal order is closely linked to the protection
of the life and well-being of the participants of society.
The principles can be seen as the foundation for the protection of human rights in
biomedicine. The formulation of the definitions and contents of the basic principles in
the different biomedical subfields are at the same time conducive to formulating the
protection of the human person in biomedicine. The description of the basic principles
contribute to the formulation of the different dimensions of human rights: the protective
dimension and the claim dimension of the concept of human rights. In this way the
investigation of the basic principles implies their legal realisation in the different
legal orders in the European societies. Human rights and biorights can be seen as the
concrete realisation of the necessary protection of the personal sphere of human beings
that is demanded by the technological development in biomedicine.
There are a number of proposals for determining the metaphysical foundation of the
basic principles. Without entering deeply into this discussion the investigation sees the
principles as factually present in the debate about the protection of the human person.
The analysis focuses on the cultural signification of the basic principles in the public
debate, the legal regulation and the legislative processes in biomedical issues. In this
context, we experience a closer connection betweeen ethics and law, in which the
basic principles are interpreted both as ethical and legal principles and closely related
to legal and political rights, the principles are a question of "political
morality", and rights can be seen as triumphs in order to realize the protection of
the human person. (6)
The relation between principles and concrete cases shall be understood as a dynamical
hermeneutical relation in which cases and principles mutually determine the development of
biolaw. Principles cannot only be abstractly defined but must be seen in the light of the
situation of application and neither can these situations be understood without general
rules and principles. What is needed is a theory of reflective judgement to determine the
relation between principles and cases. (7) In this way there
is no real contradiction between casuistry and principalism.
The principles should furthermore not be interpreted in a hierarchical way. They
express different dimensions of the same concern for the protection of human beings. This
means that the hermeneutical analysis of the meaning of the principles, in different
ethical and legal orders, implies some specific normative views about how the principles
should function as leading principles in the European societies and their future in the
European Union. In this way the principles can be seen as a "communitarian"
expression of the ideal of a common European legal morality.
2. The Principle of Autonomy
Autonomy consists of "auto" and "nomos". This means self-government
in Greek language, and in Ancient Greece a city state was said to be autonomous when it
was self-governing. (8) In the Western tradition autonomy
has been linked with the freedom of the individual and the possibility of the harmonious
development of the human person according to personal choices, and also wishes for his or
her future life. For Immanuel Kant, the person has moral freedom and is autonomous,
because this is an end in itself. Here persons are their own legislators. For John Stuart
Mill, autonomy is said to be the freedom from coercion and the possibility of acting and
deciding for yourself. The intimate connection between autonomy, moral independence and
personal self-development is also stressed in the European personalistic and
existentialistic philosophies (Sartre’s, Mounier’s). They emphasize the personal
freedom, engagement and moral responsibility of the human individual.
In the existentialist perspective, autonomy also implies a process of reflection and
active presence of the individual. (9) Existential freedom
is a condition for personal identity and self-development. Autonomy is a second-order
capacity of individuals to reflect on their first-order preferences and desires. (10)
It is important to stress that a theory of autonomy must imply positive liberty and active
choices of the individual.
As the political origins of the term "auto-nomos" suggest there is also a
close connection between individual autonomy and the political organisation of society. (11)
Modern political philosophies, represented by John Rawls, Ronald Dworkin and Jürgen
Habermas highly value individual autonomy as the foundation for the political structure of
society. In modern society, the principles of justice presuppose that human individuals
are free and equal. Society is developed in a procedure of construction in which
autonomous agents are supposed to agree rationally on some common principles of justice. (12)
In this context, autonomy often implies other basic characteristics, e.g. rationality,
individuality, independence and moral responsibility of the human person. It is central to
the idea of liberal democracy that the individual has the possibility of self-realisation
and of self-development. A legitimate government has to be built on the self-determination
by autonomous individuals. Therefore, protection of individual autonomy is a basic
principle in all European constitutions. It is important to stress that a society built on
responsible, autonomous decision-making does not necessarily mean a society without
communitarian engagements and common values. (13) Rather,
the choice of such values should be motivated by individual decision-making rather than
collective coercion.
There is, however, a broader and more serious communitarian critique of the concept of
autonomy. It states that the concept of autonomy presupposes an institutional and cultural
background. Autonomy must be recognized as a basic value if it has to have any real impact
on decision-making. Only a free and democratic society can make autonomy possible. At the
same time autonomy should not rule out social obligations to help others. An account of
autonomy cannot be totally libertarian but must recognize the situated subject in a large
number of social practices, commitments, compassions and relations to other people. (14)
Only to focus on autonomy will be forgetful of the fragile and vulnerable components of
the human condition requiring care and respect for the human person.
The problem is if autonomy presumes a total substantial and procedural independency, or
if it is possible to be autonomous and at the same time rely on communitarian values,
legal systems, moral or religious authorities. This points to the question if it is
possible to act autonomously in situations which to a large degree are steered by outer
determination? And in which way are autonomous decisions allowed to rely on the opinions
of other persons? In this context it should be evident that moral autonomy is related to
the free and autonomous choice but that this does not imply total independence from outer
factors.
Autonomy implies the capacity to make your own decisions about your own life. These
decisions can, however, also be taken in collaboration with other human beings and
according to other values. To be morally autonomous is related to the sincere choice and
personal decision-making rather than to the inventing of some genuine personal values.
Autonomy does not necessarily presuppose your own idea of a moral law (Sartre) but can
presume equally the personal insight in moral reason and the categorical imperative
(Kant). Moral autonomy is a question of free moral choice according to a set of values
that the individual considers right and just. (15)
The central importance of autonomy for the development of the human person (personal
agency), for political democracy and our conceptions of moral decision-making is the
background for the basic significance, attributed to autonomy as a fundamental right that
is used to justify proctection of privacy, confidentiality, refusual of treatment and
informed consent. After the Nüremberg Declaration and the Helsinki declarations the
notion of "informed consent" has been introduced as a basic requirement in most
European Countries. Every medical intervention must be legitimated in informed consent.
The patient must have the right to make his or her own decisions about treatment, and
refusal of treatment. The concept of informed consent is introduced to secure a
thoroughgoing self-determination of patients in medical treatment.
The patient has the right to make the decisions about his or her own body in the
context of medical treatment. There can be formulated some basic requirements of the
doctrine of informed consent that are necessary for the functioning of the concept in
practical medicine. (16) It supposes that the patient has a
meaningful choice and freedom in relation to the process of medical treatment. Therefore
the patient has to engage him- or herself intentionally and with understanding and
knowledge in the process of treatment. The patient has to be free and capable of decisions
without any violence and coercion. An autonomous action means: 1) freedom 2) authenticity
3) deliberation 4) moral reflection. (17) The decisions are
compatible with an existing moral tradition in the hospital as long as they are totally
free and independent decisions. Informed consent should be considered as an event, as a
process of communication and action between physician and patient eventually leading to
the decision and undertaking of the treatment. In this context according to Beauchamp and
Childress essential elements in informed consent are: 1) disclosure 2) understanding 3)
voluntariness 4) competence 5) consent. (18)
Although it is of enormous importance in biomedicine to secure the right treatment of
individuals, autonomy and informed consent are concepts which comprise several problems
meaning that they cannot be the only concepts to express the humanistic idea of
biomedicine and the protection of human beings and person in the biomedical field. Briefly
one can mention a certain number of difficulties necessitating the completion of autonomy
with the other fundamental principles in bioethics and biolaw.
First of all the concept of autonomy cannot be abstracted from the vulnerable and
fragile human condition and the existence of the person as a "situated subject".
It is not certain that the patient is able to judge the treatment process or fully
understand the situation of treatment. Further there is the problem of the correct
disclosure of information and the possible paternalist intervention of the doctor. And
what about the therapeutic privilege of the doctor in a situation where the information
would be of doubtful benefit for the patient? One could also mention the moral traditions
and conceptions of the hospital, in conflict with the personal conceptions of the
patients. (19)
Apart from these inner difficulties in using the principle of autonomy, there are
situations in bioethics and biolaw where the principle of autonomy simply does not apply.
In cases concerning the unborn life, embryos, fetuses, the human body and its body parts,
the body after death, organs etc. the principle of autonomy is of little signification,
because one cannot say that the body before birth and after death, or the different body
parts, have moral autonomy. This also goes for incompetent patients, e.g. minors, coma
patients or mentally diseased, who are not able to make their own decisions. We are,
however, reluctant, not to contribute moral value and concern to these people and living
objects. Therefore, the concept of autonomy is very limited as a basic concept in
bioethics. The adequate protection of the human person must take into account the other
dimensions of protection: the principles of dignity, integrity and vulnerability.
3. The Principle of Human Dignity
There is a close link between autonomy and dignity. Sometimes dignity is even equated
with autonomy, and is seen as a part of being a human person. Human dignity has been a
very influential concept in the western tradition. The principle of human dignity
signifies that the human beings have a special position that places them over the natural
and biological position in nature. As a moral being and because of its status as a human
being the notion of "dignitas" is contributed to its intrinsic value and place
in the world. From the beginning it emphasized this out-standing position of the human
being in the universe. The Stoics pointed to the "dignitas" of man as an
essential contribution to the human being. As moral beings having freedom, autonomy,
capacity of moral reasoning and responsibility human beings are assigned a dignity
(dignitas) that determines their value and position in the world. The idea of the
intrinsic value of human life and dignity was developed in Christianity when the
individual human person was assigned an intrinsic value. Augustin said that the human
being was created in the image of God and therefore individual life would be inviolable.
The concept of dignity is a characteristic of human beings having to choose between good
and evil, and securing its own as well as the dignity of other people. In Renaissance
thinking the concept developed further especially in the writings of Pico della Mirandola,
where dignity means that human beings are free to choose if they want to fall down to the
lower levels characterised by animal life, or attend the higher divine levels. (20)
In Antiquity, Christianity and the Renaissance the concept of human dignity expressed the
moral superiority and responsibility of human beings in relation to themselves, animals,
nature and the whole universe.
These aspects of human dignity found a new synthesis in Immanuel Kants philosophy about
the human being as an End in itself and the idea of the categorical imperative. The
Kantian idea is to treat every human being as an end in itself because of the relation
between human autonomy and self-government. Kant states that every human being possesses
dignity and sovereignty because of its will and inner intrinsic value. In Kant's
philosophy human dignity is a basic moral principle. Because of the human capacity for
losing and acquiring dignity, the protection of dignity becomes a great moral requirement
that is closely linked to the concept of personal autonomy. (21)
The intimate connection between dignity and autonomy is also very important in
existentialist philosophies and can be determined as a modern way of interpreting the
concept of human dignity. The underlying argument in Jean-Paul Sartre's defense of
existentialism as a humanistic philosophy is the connection between human dignity, freedom
and autonomy. (22) Because of the intrinsic capacity for
choosing the meaning and significance of their own lives, human beings have intrinsic
value that can be lost or destroyed. Human dignity applies to the intrinsic human
capacities of engaged existence in passion and action in the world. This idea of human
dignity is of great significance in Gabriel Marcel's famous lectures from 1963. (23)
But it is also present in Simone de Beauvoir’s argumentation for the equal dignity
between man and woman (24) as well as in the antiracist
argumentation for the extension of the concept of human dignity to the whole of mankind.
Consequently human rights are universal and inalienable. (25)
What is essential in this humanism is the protection of what is "human" and how
to develop the characteristics of human dignity in future social life.
The concept of human dignity is essential as the foundation of the development of human
rights as legal instruments for the protection of the human person. This is particularly
relevant in the extension of the concept of human rights to the so-called biorights. In
this context the specifically human, implied in the concept of human dignity, is seen as
unity of body and soul. This means that the human body and body parts can be seen as
something that states human dignity as an expression of a human person and of what is
specifically human. Therefore to respect the human body and its body parts is a question
of respect for human dignity. The understanding of the person as bodily incarnated is the
primary task in the legal regulation of the biomedical sciences. The French jurist Noëlle
Lenoir says that the aim of bioethics and biolaw is to protect what is human, i.e. the
human dignity in the technological development. (26) It is
the task of human rights law to promote the humanistic ideals in Western European Culture
and take care of the idea of the intrinsic dignity of human beings as the foundation for
autonomy and personal freedom. In this way human dignity becomes more fundamental than
self-determination, because human beings can lose their dignity by having the wrong
relation to self-determination. The respect for human dignity as a recognition of what is
specifically human expresses a fundamental principle of justice that goes beyond
self-determination and distribution of goods in society. In this way human rights express
human dignity and are dependent on a view of the human person that goes beyond the sole
protection of the conscious agent. The right to life, fairness, equal treatment and other
basic rights express the European constitutional culture, in which the constitutional
state can be seen as the "cultural gene of humanity". (27)
4. The Principle of Integrity
Integrity is a philosophical concept that is closely connected with autonomy and
dignity. It concerns the integrity of the human person, and the personality. The human
person has a private sphere which can be described as the sphere of integrity. This sphere
of integrity has at the same time a spiritual and a corporeal dimension: the psychical and
physical integrity. The spiritual dimension can be expressed by the concept of the zone of
the "untouchable", developed by the Danish philosopher Løgstrup. In relation to
psychiatry he argues that a permanent focus on motives for actions rather than reasons
constitute an intervention in the integrity zone of the individual. (28)
The intervention in the zone of the untouchable involves the ignorance of the integrity of
the person, and therefore psychiatry should not intervene into the personal untouchable
aspects of the human person. This concept can be generalized as a definition of integrity.
Integrity concerns the untouchable core of the personality that must not be subject to
unwarranted external intervention. In a wider context this implies the protection of the
personal integrity of the individual, e.g to the protection of individuals in relation to
the public storage of personal data.
But the notion of integrity also comprises certain physical characteristics. The bodily
incarnated human subject can be said to constitute a zone of integrity. This zone
represents the personal body which belongs to the subject as such. The personal body in a
phenomenological perspective can be said to constitute a zone of what is personal and
proper to the singular individual. The zone of the bodily incarnated personality is proper
to the singular human person and is therefore untouchable. This means that the human body
and its parts form a sphere of integrity that is supposed to be treated with special care
and comprehension. (29) Here integrity means the right to
life and the right to decide about your own death.
The concept of integrity can also be seen in a legal perspective. It is an old legal
principle that has been made topical in the present legal situation. In the legal sense
the principle originates in Roman law and it derives from the Latin "integritas"
and the other notion of Latin origin "intact", signifies as well as "noli
me tangere", that which is untouchable, undisturbed and not to be touched. In the
French legal tradition this is emphasized by the notion of "L'intangibilité de la
personne", (30) but the principle of integrity also
plays an important role in declarations of human rights and different European
constitutions and can therefore as such be said to constitute a necessary presupposition
for the development of biolaw. The legal reference to the integrity of the human person
sets limits to biomedical interventions into the human body. It is the realization and
protection of the private sphere as a personal zone of the untouchable in which the
individual is protected by limits to the permitted intervention into the autonomy and
dignity of the human person.
The reference to the protection the physical-psychical integrity of the human person is
becoming more and more central in the formulation of legal norms concerning genetic
manipulation and the protection of the human genetic structure. The right to inherit a
genetic substance that has not been artificially changed is an important aspect of
integrity. In this way integrity is used to protect the personal identity of the human
person in connection with manipulation. This does not only concern actual people but it
also applies to what is characteristic of the human species. Integrity protects the
genetic inheritence of future generations and opposes the manipulation of the genetic
patrimony and their genetic identity. (31) Manipulations of
the human body that substantially changes personal identity can be stopped by referring to
the integrity of the human person and the protection of privacy. In this context, there is
an intimate connexion between integrity and the private sphere of the human person as
subject to individual autonomy.
Furthermore integrity does not only apply to the human body but also concerns a wider
sphere of protection of social and economical integrity of the person. Especially the
right to protection of information about the person can be mentioned, but also the right
of vulnerable and weak social groups to be given a minimum of economical and social
protection. Economical and social integrity must respect the protection of a minimum of
welfare for the citizens in a welfare state.
The different perspectives on integrity clearly establish the close connection between
integrity, personal identity and character. As early as in Plato's ethical theory
integrity meant basic moral virtue and human character. The psychical and physical aspects
of integrity confirm this comprehensive definition and relates the right to privacy,
revealed by integrity, to the concepts of autonomy and dignity. (32)
Finally integrity can also be said to apply to the legal system as such. Ronald Dworkin
uses the concept of integrity to describe the political morality of a just legal order. In
this understanding of integrity judges and agents in the legal order are said to have
integrity when building their decisions on impartiality and fairness .They can be said to
confer to each person "equal concern and respect". This is the objective
correspondant to the subjective definition of the integrity of the human person. (33)
5. The Principle of Vulnerability
The principle of vulnerability is, although it is not always directly mentioned, also
an underlying concept in the ethical and legal debate about bioethical questions. But
recently it has become more and more present in the philosophical discourse. One could
argue that a philosophical anthropology of the vulnerable human condition is the
foundation of this concept. Vulnerability can be seen as an expression of the human
condition and is therefore not only a mere descriptive concept but rather a concept with
an explicit, normative content. Vulnerability is also an important notion underlying the
juridical regulation of human activity. One can say that law is fundamentally
institutionalized in order to protect vulnerable human beings.
Especially the French philosopher Emmanuel Lévinas has defined the concept of
vulnerability as the foundation for understanding human condition. He analyses
vulnerability as the foundation for morality. Morality is a compensation for man's
vulnerability. The moral imperative is an imperative to take care of the other and an
ethical responsibility for the other. In this way vulnerability can be said to imply an
immanent normativity in which the vulnerability is expressed in the corporeal incarnation
of the other, e.g. in the face of the other. The existence of the other person expresses
vulnerability and demands the ethical engagement of the person. Lévinas formulates that
with the imperative "Thou shall not kill" as the very basic concept of the
vulnerable existence. (34) This shows the ethical function
of the corporeal finitude of human beings that has become the foundation for Lévinas'
philosophy. In this perspective the deepest point of morality is revealed in the
vulnerable situation of human beings in the world. Vulnerability manifests an asymmetrical
imbalance between the weak and the powerful and in this context it demands an ethical
engagement and that the powerful protect the weak. It is our vulnerability that makes us
receptive for the responsibility emanating from the other as a vulnerable being. This
ethical receptivity is the fundamental point of the human condition. The same concern for
vulnerability as a fundamental ethical concept can also be shown in Habermas' philosophy.
His argument for communicative understanding in a domination-free dialogue also situates
vulnerability in the center of the ethical concern. This is openness towards the
vulnerable other being taking part in a dialogue. (35)
Vulnerability is therefore an extreme important concept as the foundation for ethical
notions of care, responsibility and emphaty with the other. Vulnerability motivates
ethical concern for the fragility of the human condition. The human condition is marked by
an extreme degree of fragility because of the temporal and finite character of all human
life. The bodily incarnated human subject is destined for death and it is not possible to
abstract it from mortality and destiny as basic to human life. Instead we have to live
with mortality (36) but also to take care of the vulnerable
situated subject.
In this context, vulnerability can also be interpreted as an important legal concept
and even as the foundation for the legal system. The English philosopher of law and
jurisprudence, Hart, says that the vulnerability of human beings is the background for the
regulation of its activities in rules and social institutions. (37)
The task of legal organisation, legal principles and concrete legal rules is to protect
the vulnerable human being, confronted with the possibility of destruction and the
interventions from other people, and the state. It is the task of legal regulations of
biomedical problems to protect the weakest and the poorest in society against the
discrimination and destruction from other social groups.
6. In the Framework of Responsibility and Solidarity
The basic principles as such constitute a sphere of protection of the human person. It
is, however, necessary to consider the basic principles in a larger framework of the
European welfare state. In this context the concepts of state responsibility and
solidarity concerning the protection of vulnerable human beings are of essential
significance.
The principles emphasize the need to protect the corporeal incarnated human subject in
relation to he development in modern risk-society. (38) They
are also necessary tools to secure the development of the right legal rules to protect the
body of the individual. The permanent pressure on the intimate human body in modern
society is the background for the necessity to see the principles in the larger context of
social responsibility and solidarity.
In this context the concept of care is corellative to the dignity, integrity and
vulnerability of the human person. The ethics and law of the human person are closely
connected to the concept of care. Already the humanist Erasmus saw this concept as the
basic attitude of society towards the vulnerable and weak in society. In modern
biomedicine the importance of care is (prominent), not only between individuals but also
between individuals and state. (39) Against this background
the protection and care of vulnerable individuals are becoming an integrated part of
modern legal systems.
The German-American philosopher Hans Jonas in his book "The Concept of
Responsibility" has argued for the fact that the position of human beings in the
modern world and the possible domination and destruction of nature in industrial society
has changed the ethical obligations of the human beings. Society must be conscious of its
responsibility not to destroy all life on earth. This implies a responsible state as to
setting limits to social intervention in nature, animals and the human body as well as to
setting limits to the on-going destructive possibilities of life for future generations.
The principle of responsibility is founded on the intimate connexion between the human
body and the organic nature placing human beings as part of the living world.
The duty to protect vulnerable and fragile life is an application of the categorical
imperative in bioethics and biolaw. Hans Jonas extends this to future generations. The
imperative says to act in a way to secure that there will exist genuine human life on
earth in future. (40) This means that the protection of the
autonomy, dignity, integrity and vulnerability of the human person must be directed
towards the protection of future generations and the variety of the species in nature to
give future human beings the best possible conditions of existence. Therefore the
principle of responsibility is the foundation for the formulation of basic principles as
legal principles that go beyond pure utilitarian pragmatism. State responsibility implies
a heuristics of fear, in which society in the light of the vision of respect for autonomy,
dignity, integrity and vulnerability is conscious of the consequences of their own actions
and puts a limit to a scientific and industrial development that manipulates the private
sphere of the human person.
The concept of state responsibility is somehow already present in the legal development
in modern risk society where social intervention in the intimate sphere of the human
person is more and more common. (41) The principle of
responsibility was earlier seen as a well defined juridical notion. It concerned a
person’s responsibility for a definite juridical action as its conscious agent. But
now the consequence of Hans Jonas’ definition of responsibility is that the human
responsibility of future generations and the following duty to take care of the weak and
the vulnerable must be seen as a part of responsibility. In other words, we are confronted
with an extension of the content of the notion of responsibility, which means that we are
responsible for not contributing to the adequate protection of the vulnerable populations.
Today, it is possible to be responsible without having committed an error in a strict
juridical sense. Juridical responsibility is also social responsibility. In the welfare
state this responsibility implies the duty to take care of the weak, the poor and the sick
people in society. The extension of the notion of responsibility in the modern welfare
state implies that the welfare state must in legislation and legal practice continue the
protection and care for the individual human body, something which was earlier a question
of private activity or just handed over to social institutions like the church and the
medical profession.
The implementation of the basic principles in modern legal practice, is not only
present in civil and criminal law but also in social, health and labour law. The actual
legal development shows an extended protection of the human person as the driving force in
bioethics and biolaw. The French philosopher Francois Ewald shows in his famous book
"L'Etat Providence" about the modern welfare state how risk society compensates
for work accidents, sickness and social problems by developing an extended system of
insurance — work and health insurance, collective systems of care that force
companies and society to give compensation for social unhappiness, even though neither the
companies nor society can be held responsible for the destiny of the individual in a
juridical perspective. (42) Social insurance is created in
opposition to the increased intervention into the intimate personality of the individual.
This means that legislation and juridical practice tries to develop an extended protection
of the human person more or less by implicitly applying the basic principles of autonomy,
dignity, integrity and vulnerability.
The link between responsibility and the protection of the basic principles constitute
the framework of social solidarity concerning the formulation of norms about intimate
human corporeality in the modern welfare state. (43) The
project of care in the welfare state, realised in social security as state responsibility
protects the legal subjectivity of the vulnerable and the weak. In most European
constitutions the basic principles are more or less present as indications of basic human
rights of the personality. Legal subjectivity does not only imply taking part in a social
contract, rather it is included as a subject for the protection of law. The legal subject
has become the one who is worthy of respect and care. (44)
The aim of the law is to protect the autonomy, dignity, integrity and vulnerability of the
human personality.
The relation between basic principles, rights and protection of person and body must be
seen as a consequence of the development of the welfare state and risk society into a
caring and protectioning state of care and protection. Legal regulation is no longer built
on a contractual relation between legal subjects but develops into a relationship of
social solidarity and collective responsibility that also concerns the basic principles
related to bodily incarnated human person. In this way law is built on social solidarity
between the members of society. The law recognizes the autonomy of the individual but as
the other three principles suggests at the same time, society has a collective
responsibility to put limits to the rights of the individual to its own body. The basic
principles in relation to the human body must be considered in a broader perspective. The
notions of dignity, integrity and vulnerability are expressions of the necessary
protection of the human body in the present legal development and motivates a human rights
oriented duty to the protection of the personal and corporeal sphere of the individual in
the modern welfare state. In the framework of responsibility and solidarity the basic
principles confronted with the threat of powerful technological intervention in the
personal sphere of the human person constitute an effort to formulate a humanistic
conception of man as a foundation for policy and legal regulation in the welfare state.
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