II: LAW AND THE DEFENCE OF THE HUMAN PERSON
In our last discussion, we considered the relationship between law and ethics, and between ethics and democracy. I argued that ethics provides a link between freedom and truth, especially the truth about the human person, and that it is in the dignity of the human person that we find the seat of fundamental human rights.
All this can be found in the Christian tradition. But it is certainly not unique to that tradition. Indeed, that is the central thrust of what I was trying to argue during the last meeting. It’s interesting to find that the Roman orator Cicero subscribed to and stoutly defended an essentially similar position, half a century before the birth of Christ. He was, as you all know, a lawyer as well as a statesman. He was the leader of the Roman bar of his day - not so much a professional philosopher as a man of affairs who used to turn up at court each day “reeking”, as he himself put it, “of midnight oil”.
It was his view that there is a supreme law implanted in each of us, a law which he called “the mind and reason of the intelligent man, the standard by which justice and injustice are measured” (De legibus, I, 19). Elsewhere he calls it “right reason in agreement with nature”. This universal moral law he distinguished from the “enactments and decrees of nations” - what we would call positive or civil law. And he makes it clear that it takes priority over civil law, calling it “that supreme Law which had its origin ages before any written law existed or any State had been established (De legibus, I, 19).”
He gives as an example sharp practice in commercial transactions. Under Roman law, the seller of a house was under no legal obligation to disclose defects of which he was aware. Provided he did not conceal them, he was free to keep silent about such defects: caveat emptor, as English and Welsh lawyers continued to say until we were recently forbidden to use Latin in Court! But this is what Cicero had to say about the matter: "Owing to the low ebb of public sentiment, such a method of procedure, I find, is neither by custom accounted morally wrong nor forbidden either by statute or by civil law; nevertheless it is forbidden by the moral law. For there is a bond of fellowship - although I have often made this statement, I must still repeat it again and again - which has the very widest application, uniting all men together and each to each. This bond of union is closer between those who belong to the same nation, and more intimate still between those who are citizens of the same city-state. It is for this reason that our forefathers chose to understand one thing by the universal law and another by the civil law. The civil law is not necessarily also the universal law; but the universal law ought to be also the civil law” (De officiis, III, XVII, 68).
In other words, as we said last time, the civil law isn’t conterminous with the moral law, but it must not flout it. There is a famous passage from his book on the Republic, which I can’t resist quoting, in which Cicero makes this even more explicit, underlining the universality of the moral law, and the fact that it cannot be altered or repealed: "True law is right reason in agreement with nature; it is of universal application, unchanging and everlasting; it summons to duty by its commands, and averts from wrongdoing by its prohibitions. And it does not lay its commands or prohibitions upon good men in vain, though neither have any effect on the wicked. It is a sin to try to alter this law, nor is it allowable to attempt to repeal any part of it, and it is impossible to abolish it entirely. We cannot be freed from its obligations by senate or people, and we need not look outside ourselves for an expounder or interpreter of it. And there will not be different laws at Rome and at Athens, or different laws now and in the future, but one eternal and unchangeable law will be valid for all nations and all times…”
As that passage makes clear, even the democratically expressed will of the people cannot dispense from the moral law. “…Justice”, Cicero says, “…is based not upon men's opinions, but upon Nature” (De legibus, I, 29). According to his view, a people can truly be said to exist only when the individuals who form it are bound together by a partnership in justice; in other words, there is such a thing as society, but only when its members recognise a moral law which precedes and informs it. Otherwise, says Cicero, such a gathering “is just as surely a tyrant as if it were a single person, and an even more cruel tyrant, because there can be nothing more horrible than that monster which falsely assumes the name and appearance of a people". This is exactly what results when a democracy enacts laws in defiance of the principles of the universal law of nations: "What of the many deadly, the many pestilential statutes which nations put into force? These no more deserve to be called laws than the rules a band of robbers might pass in their assembly. For if ignorant and unskilful men have prescribed deadly poisons instead of healing drugs, these cannot possibly be called physicians' prescriptions; neither in a nation can a statute of any sort be called a law, even though the nation, in spite of its being a ruinous regulation, has accepted it. Therefore Law is the distinction between things just and unjust, made in agreement with that primal and most ancient of all things, Nature; and in conformity to Nature's standard are framed those human laws which inflict punishment upon the wicked but defend and protect the good."
Some might argue that this is an outdated view, all very well for late republican Rome, but with little relevance to modern politics. Yet as recently as 1978, a man of affairs of our own time, Lord Hailsham, expressed much the same idea in his book The Dilemma of Democracy: “The moment democracy ceases to pay attention to the limitations and restraints which all governments must observe, it ceases to be a form of free government and becomes an organ of tyranny”.
Cicero, too, locates the source of ethical principles in the dignity of the human person, endowed with reason. In his book on laws, he argues that the nature of justice must be sought in the nature of man. For him, it is the human person who is the true absolute and in whom fundamental rights and ethical principles have their origin. But this raises the question: What is the human person? Of course, the word “person” is a legal term of art, but it is not in that sense that I use the word here. We need to get at the reality of what it is to be human. It is precisely because this is the subject of debate that we have such fundamental disagreement on morals. After all, not many would be prepared to argue that a human being does not enjoy rights and responsibilities. But what exactly is a human person? The importance of the question is obvious. What is it that defines the human person? Is it consciousness, or physical integrity or mental capacity? Is a patient in an apparently irreversible coma a person? Or a foetus, or an embryo?
We’ve said that ethics and law are not conterminous. Law doesn’t exist to make men good, but to uphold public order and the common good, that is create the conditions for people to flourish and live freely and well. But, as the pagan Cicero realised, law should never contradict fundamental moral norms; any law which does is not a true law. But which moral imperatives should it enforce and which not? Where do we draw the line in ceasing to enforce them? Nobody today is asking to criminalise areas like adultery and homosexual acts between consenting adults committed in private. It would do more harm than good. But the fundamental rights of the person to life, good name and property should be enforced and backed up by law.
The first of these is in some danger at the present time. Why? Because society is no longer clear what a person is. It seems to be certain only of the rights of the post-born person, and even then only in some circumstances.
The notion of sanctity of life, or human dignity, has led to confusion and needs clarification. It is in danger of being superseded by the notion of ‘quality of life’. So when human existence falls below a perceived minimum ‘quality of life’, it can, and some would say ‘should’, be terminated. But this leaves a good number of people – the sick, the elderly and the handicapped – vulnerable and without the protection they have a right to expect under the law.
Without a subject to possess and enjoy them, it is obvious that we cannot have human rights. We need to arrive at a true understanding of what a human person is. Therefore we need a definition, or an understanding, of the human person which includes an agreed beginning and end of human life. We must avoid notions which maintain that there is no definite point at which a human individual comes into being, because such ideas do not afford protection to the person.
Society has moved away from the Hippocratic principle, for so many centuries the standard of medicine and law. The Declaration of Geneva said in 1948: “I will maintain the utmost respect for human life from the time of conception.” The last word was changed in October 1983 to “commencement”. That change was made in the name of ‘pluralism’, but by concealing differences of view as to when a human being can be said to come into existence, it evades the only question that really matters. Pluralist language of this kind cannot answer the questions that really matter. Like much international diplomacy, it masks irreconcilable differences but does not resolve them. It is said that the late Cardinal Hume, while still a housemaster at Ampleforth, once rebuked a noisy pupil with these words: “I don’t mind your making a noise, as long as you don’t mind my stopping you”. That is very much a reductio ad absurdum of ethical pluralism, but it contains a kernel of truth.
There are, of course, entirely legitimate forms of pluralism. In practical politics, for example, it is not merely permissible but essential. Even in the sphere of ethics, there is room for a plurality of views on many topics. Yet some moral principles, some basic human rights, are so fundamental that truthfulness requires us to accept and respect them in all circumstances. Surely there is no room in a civilised society for a plurality of views about the morality of torture or slavery or the sexual abuse of young children? If there were, the law would have to respect that pluralism by tolerating such activities. The trouble is that those who argue in favour of moral relativism often seek to foreclose the debate by appealing to a distorted form of pluralism: “You may disapprove of human cloning, but others think it perfectly acceptable; therefore, the law must respect that divergence of view by tolerating human cloning so as to leave the choice to the individual”. Such an argument seeks to trump traditional morality, but its appeal to pluralism actually begs the very question under discussion. In truth, ethical pluralism of this kind is really nothing more than ethical relativism wearing a different hat.
And so, if we are not careful, the very legitimacy of political, cultural or other acceptable forms of pluralism may persuade us that pluralism must be extended to all spheres of human thought and activity alike – even to the most fundamental ethical principles that underpin our civilisation. It is this misplaced form of pluralism that has led to the notion that traditional morality is merely one of a practically infinite number of equally ‘valid’ ethical systems. In a democratic society, so the argument runs, there is no agreement on morals and the best the law can do is to accommodate the widest possible range of ethical points of view. One way of doing that is to mask divisions of opinion by the kind of verbal sleight-of-hand we have just seen in the 1983 change to the Geneva Declaration. But pluralism can take many other forms. On one view, for example, it is for a democratic majority to resolve disagreements about practical ethics. The obvious flaw here is that the majority view may well be quite wrong. This leads to what Cicero trenchantly called “pestilential statutes” – laws that are fundamentally unjust.
Another view, recognising this difficulty, expects the judges to decide moral questions. But as we have already seen, the positive law is law only in so far as it accords with the ethical law, which therefore comes first. Courts of law are used to making decisions on utilitarian grounds. That is all well and good in many situations, for example when a judge has to decide whether a deterrent sentence is necessary, whether to grant an interlocutory injunction in a civil action, or whether the interests of a particular child are best served by making a residence order in favour of the father or mother. But when it comes to fundamental moral problems, utilitarianism is no more satisfactory than pluralism. As Cicero put it: “…nothing can be expedient which is not at the same time morally right; neither can a thing be morally right just because it is expedient, but it is expedient because it is morally right”. And so there can be no guarantee that the judges will get the answers right any more than a democratic majority will necessarily do so. The fact is that pluralism always ends up by subordinating the moral law to the civil / positive law. That is its very nature and essence. It denies the priority of ethics over law, of truth over freedom, and reverses the true order of things. That is why it leads to injustice.
This injustice takes the form of a lack of protection for the vulnerable in society. Any civilised legal system worthy of the name must take responsibility for such people even if society entertains ambivalent or contradictory views on these fundamental moral questions. In fact, there is an argument for saying that the law has a pedagogical role and should take a lead on fundamental points of human rights, rather than follow the uncertainties of society. Judges, as well as MPs, have a moral responsibility and important role to play which, at the very least, merits discussion.
Of course, if the Hippocratic principle is followed, this also outlaws IVF, embryo experimentation and cloning. It affords protection for patients in persistent vegetative state, locked-in syndrome, coma and so on. Also, medical knowledge about these states is at present, to say the least, sketchy. If the right to life keeps getting whittled down, then great numbers of us will be at risk and the law will not be doing its most fundamental job. The very people who most need the law’s protection are those most in danger of being deprived of it.
Ever since Descartes’s famous cogito ergo sum, our view of the human person has become more and more consciousness-based. If our own intellectual activity is the only thing we can take for granted, we are bound to regard conscious thought as the touchstone of our humanity. But is this right? To what extent has this view of man influenced our law, and does our law provide sufficient protection to the vulnerable in society?
Surely a person is more than just consciousness? A human being is material, as well as spiritual or intellectual, and has material as well as spiritual needs. The human person is a dynamic unity of the material and the non-material. For all their faults, aren’t men and women the most perfect beings in all creation? Capable of knowing all things, we enjoy the capacity for self-determination. Cicero says that man is different from the beasts because he has reason. But this is not the same thing as the Cartesian view, which denies the unity of mind and body. If a human being is merely a mind trapped inside a body, then it is only the conscious mind that possesses worth, and the body is then nothing other than a more or less useful appendage – a prison, even – having no intrinsic dignity of its own. It is easy to see how, on that view, a person who is not able to exercise or enjoy his mental faculties may come to be regarded as less than fully human. So the pre-born infant, the irreversibly unconscious patient or the person with advanced senile dementia are seen as having little or no ‘quality’ of life, and hence may legitimately be killed. As Professor Luke Gormally put it in a recent lecture: “For a ‘quality of life’ ethic, only a subset of human beings have valuable lives, namely those with developed abilities of understanding and choice who exercise those abilities in ways which result in them thinking of their lives as valuable”.
The obvious difficulty with the ‘quality of life’ ethic is that it has to deny the equal dignity of every human being. It is able to do that because it starts out by denying the fundamental unity of the human person. But once we realise that the human mind and body form a single dynamic whole, it becomes clear that we cannot say that some people are more human than others, or have lives of greater value. This is the traditional view. It is also the Christian view, but like our earlier conclusions, it is not confined to Christianity and does not depend upon religious doctrine. As our pagan colleague Cicero put it: “And so, however we may define man, a single definition will apply to all. This is a sufficient proof that there is no difference in kind between man and man; for if there were, one definition could not be applicable to all men; and indeed reason, which alone raises us above the level of the beasts and enables us to draw inferences, to prove and disprove, to discuss and solve problems and to come to conclusions, is certainly common to us all, and though varying in what it learns, at least in the capacity to learn it is invariable. For the same things are invariably perceived by the senses, and those things which stimulate the senses, stimulate them in the same way in all men; and those rudimentary beginnings of intelligence to which I have referred, which are imprinted on our minds, are imprinted on all minds alike; and speech, the mind's interpreter, though differing in the choice of words, agrees in the sentiments expressed. In fact, there is no human being of any race who, if he finds a guide, cannot attain to virtue…But what nation does not love courtesy, kindliness, gratitude, and remembrance of favours bestowed? What people does not hate and despise the haughty, the wicked, the cruel, and the ungrateful? Inasmuch as these considerations prove to us that the whole human race is bound together in unity, it follows, finally, that knowledge of the principles of right living is what makes men better”.
From all this we can conclude that the moral law is seated in the intrinsic dignity of the human person, and that it applies equally to all, regardless of intellectual ability or physical integrity. Consequently, it can never be right to treat a person at any stage of development from conception to death or in any state of mental or physical health, as being of less worth than another, even with that person’s consent. Unless our own laws jealously respect and guard this fundamental human dignity, they run the risk of causing injustice to the weak, the elderly and the unborn – the very people who are most in need of the law’s protection.
Tom Teague Q.C.