Reasonableness and biolaw

lundi 25 janvier 2010, par Stéphanie Hennette-Vauchez

Thèmes : Bioéthique

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Référence : Article publié dans Law and Philosophy Library,vol. 86, août 2009, p.351-361.

The original publication is available at

There can undoubtedly be a procedural approach to reasonableness. R. Alexy argues that conditions such as taking “all relevant factors” into account or “putting all relevant factors together in a correct way” (Alexy, 2009) are necessary for reasonableness to be pursued –and a fortiori achieved. In the particular field of biolaw, C. Faralli argues somehow similarly that reasonableness can only be reached when norms proceed from a “shared method of discussion” (rather than from an “antecedent doctrine”) and if they are based on the assumption that dilemmas faced by biolaw can not be expressed nor analyzed in terms of truth and/or falseness but only pretend to be “adequately argued and justified” (Faralli, 2009). At any rate, a non-procedural (eg. substantial) approach of reasonableness may well be said to be quite unlikely in early 21st century European academic settings, for natural law theories articulated around substantial standards of validity are readily said to be out of [scientific] fashion. Indeed, it would have been surprising to hear speakers and the Reasonableness and the Law conference argue that the concept of reasonableness was a promising ground for validating certain conducts and norms as “reasonable”, and invalidating others as “unreasonable”. However, the frontier between a procedural and a substantial approach of reasonableness is not easy to draw. Consequently, and despite the above recalled procedural approach to reasonableness, the concept sets the legal theorist on a slippery slope towards axiological assessments of legal cases –a reason for which it will be argued it is best relinquished.

Indeed, reasonableness rings a little bit like a variety of concepts that regularly attract legal theorists’ attention because of their everlasting hope that the satisfying answer to the question of how hard cases really are determined will eventually be found. For legal theory has never accepted Jerome Frank’s breakfast theory ; in fact, it has mostly deemed it inadmissible [1]. Instead, it has relentlessly devoted time and efforts at looking for concepts that would convey less arbitrariness but still be able to account for the fact that in many cases, since there is no “one good legal answer” to a given situation, something else and more than positive law does play a part in the manufacture of legal norms. Common sense, ordre public, justice, fairness, rationality, human dignity… all these concepts have been or still are regularly called upon in positive law and theoretical inquiries in the name of their ability to bring together the description of what lawmaking is and that of what it ought to be. They succeed in fulfilling that mission because they formally are presented as “legal” categories (hence they avert the spectrum of arbitrariness) and substantially have no precise or definite definition (hence they can accommodate many different or even contradictory interpretations).

Fairly enough, reasonableness –unlike ‘common sense’ (Boaventura, 1995) or ‘human dignity’ (Feldman, 1999 & 2000) - is not a purely substantial concept ; hence the idea that it has to do with methods of discussion where all viewpoints are considered and balanced in the hope that something like an overlapping consensus is reached. Thanks to this procedural dimension of reasonableness, the concept is deemed susceptible of being objectively discussed. It may therefore be argued that it is less of a disguise for a particular judge’s personal preferences (or breakfast menu) than other solely substantial ones may be. Indeed (the argument unfolds), whereas it is possible that no agreement would ever be reached on the substantial assessment that a particular behavior is or is not contrary to human dignity [2], there would be a guarantee of possible common and objective grounds for discussion as to whether the decision has been reasonably reached. However, it is suggested here that Reasonableness is but another variation on a same theme of axiological modes of legal reasoning, for despite a readily procedural presentation, it always and inextricably conveys much substance. For indeed, whether one will deem the recourse to human dignity in legal reasoning in a particular case “reasonable” or not strongly reflects one’s personal understanding of the principle. This is why it is considered here that the border between procedural and substantial aspects of reasonableness is not easily drawn and thus that legal usage of the concept conveys the risk of shifting from legal analysis to axiological prescription.

There is much to expect from the immediate ‘testing’ of the theoretical construction of a concept in a particular field of law ; and biolaw appears to be a particularly relevant field for putting theoretical approaches of ‘reasonableness’ to the test, if only because it is one in which the idea of reasonableness has historically played a strong role. However, it is a “test-field” from which the idea of the concept’s relevance to legal theory returns weakened ; and there are, at least, three reasons to that. First, it all seems that the idea of reasonableness as a central concept in the process of elaborating norms in the field of biomedical issues disappeared with the shift from bioethics to biolaw ; in other words, bioethics/biolaw specialists have a relatively strong case for arguing that reasonableness is a somewhat outdated concept. Second, it can be claimed that the use of reasonableness as an assessment device of legal regulation in the field of biomedical issues is difficult to justify in from a perspective of legal theory, for it can very easily be but the clumsy mask of political critique. Finally, and on a more general standpoint, it is arguable that interest paid to reasonableness by legal theory is only a (supplementary) confirmation of the contemporary pervasiveness of ethical considerations and principles in the field.

1. Reasonableness as an Outdated Concept : the Perspective of a Biolaw Specialist

What is striking in definitions of reasonableness such as the ones recalled above – and what is best seen from the point of view of biolaw- is that they rely on the kind of argumentations that used to be prominent some twenty or even thirty years ago in the then-emerging field of bioethics. It shares many a resemblance with central concepts of the time, such as that of “secular moral reasoning” developed by Tristam Engelhardt (Engelhardt, 1986) as a means of overcoming the “moral fragmentation that characterizes postmodernity” (Engelhardt, 1986, 421) and identifying “foundational” consensual values (Engelhardt, 1986, Chap. 2), or that of “middle-level principles” that Beauchamp and Childress had put forth (Beauchamp & Childress, 1979)3 [3]. It also corresponds to the manner in which these theoretical views initially influenced the actual and institutional practice of bioethics. As an illustration, one only needs to look back at the creation and generalization of Ethics Committees that initiated in the early 1980s. Those committees were indeed presented as means of securing a deliberative, consensual and pluralistic model of rule-making (Moreno, 1994, 1995). Additionally, their composition and working methods generally strongly reflected “reasonableness” understood as a “shared method of discussion” in which the highest requirement is that all positions are “adequately argued and justified”, so that the final outcome (the committee’s opinion) is in a position to pretend to authoritativeness (Bayertz, 1994). One could also observe that such concepts (secular morality, middle-level principles…) and such practices (the institutionalization of ethics) were typical of times during which both the capacity and the legitimacy of legal regulation in the field of biomedical questions were under question –if not denied. The French example is very telling in that respect. The Comité Consultatif National d’Ethique was created in 1983. Typically during the early 1980s (Flis-Trèves, Mehl, Pisier, 1991), there was a strong and quite dominant notion that law was an inadequate tool for regulating biomedicine because it was both too general to satisfactorily apply to cases that were ever particular and specific and too slow in its elaboration to ever catch up with science’s pace [4]. In this context, it is hard not to see the institutionalization of ethics as an attempt to find and develop an alternative source of normativity.

However, things have changed and the 1990s could be said to have favored a shift from the “bioethics” paradigm to the “biolaw”. It is indeed a decade during which there was a growing sense that the consensus strategy typical of the first “ethical” phase had failed and that it was therefore necessary to acknowledge its chimerical dimension and return to majoritarian law-making processes. Core common principles had not emerged (and they were not going to) ; nor had regulating become an easier task (and it would not any time soon). Consensus no longer appeared to be the method nor the purpose ; mere compromise was left (Franklin, 1995). This accounts for the global movement of legislative action in the field of biomedical issues [5] that gradually took over “soft” ethical regulation.

The British example nicely illustrates that the bioethical approach had not watered down the depth or strength of axiological controversies. The emblematic 1984 Warnock report (Dept of Health, 1984 ; Jasanoff, 2005, 149) did not avert (it may even have stimulated) forceful opposition to its key propositions, such as that of legalizing research on human embryos up to the 14th day. Hence the tight votes that followed all legislative initiatives on the topic up to the 1990 Human Fertilization and Embryology Act of 1990 (Mulkay, 1997). To be sure, what occurred at the international scale is somewhat different, if only because of the inapplicability of the majoritarian rule. Similar acknowledgements that consensus was out of reach have characterized the recent years nonetheless. First, the hopes generated by the international method of identifying the minimal basis of common values have been somewhat overshadowed by the empirical finding of the relative pointlessness of the whole undertaking. The Oviedo Convention of 1997 has accordingly been criticized by specialists of the field and neglected by many States [6] precisely because of its incapacity of saying anything normative [7] –the emblem of the vanity of consensus being its article 18 which instead of embodying a position on whether embryonic research should or not be made legal, limits itself to saying that be it the case, such research is to be authorized only under precise conditions. More dramatically still, the United Nations failed altogether to bring the international community to a ban on cloning. Thus the ambitious worldwide resolution on reproductive cloning eventually led to a much lower profile non-binding declaration calling all States to adopt “all measures necessary to prohibit all forms of human cloning in as much as they are incompatible with human dignity” [8]. On a more conceptual standpoint, it is worth underlying that recent scholarship acknowledges this necessary departure from the mirage according to which the fact of taking all views into account would enable the elaboration of sound solutions. Engelhardt’s latest volume’s title is telling : Global Bioethics : the Collapse of Consensus (Engelhardt, 2006) [9] ; and legal scholarship acknowledges the difficulty, at times impossibility, of regulatory consensus (Brownsword, 2005). Many publications draw the same statement albeit they may assess it differently (Pellegrino 2000 ; Trotter, 2006) : biomedical issues are an area of deep moral disagreement that cannot be solved through sound methods of argumentation.

As the very notion of consensus is progressively pushed out of the picture, new understandings of the stakes of biomedical debates and the possible means of dealing with them emerge. The idea that procedures and methods were appropriate means of neutralizing the violence of moral controversy and eventually overcoming it is weaker today than it once was. Consequently, whereas the biomedical debate in the 1980s was mostly articulated around the aim of finding the proper regulatory method (a debate in which reasonableness as defined above did have a say), it mostly is in the 2000s about discussing the substance of regulation (thus the concept of reasonableness’ relevance is much more dubious). In other words, the highly political dimension of choices in the field of biomedicine is more generally acknowledged today than it was before. Choices have to be made and they may be informed by prior ethical pluralistic discussion but they ultimately resort to law –not ethics. In that respect, biolaw increasingly appears to be nothing more than the endorsement of given options : biolegal norms are embedded in political assumptions. This evolution of the biomedical debate and the relatively new strength of the “biopolitical” paradigm actually reveal interesting features of biolaw (Bishop, Jotterand, 2006). Notably, they support the view that there are no good [legal] answers to the questions in presence (should embryos be created for research purposes ? should physician assisted suicide be tolerated ? should patents be deliverable over living material ?...). In other words, biolaw substantially really is the result of political conventions and agreements –compromises (Hennette-Vauchez, 2009). For that reason, and because increasingly biolaw is mostly legislative law, the interrogation relative to the relevance of “reasonableness” in biolaw ultimately has to do with the very conception one has of the political legitimacy of parliamentary lawmaking.

2. Reasonableness and parliamentary lawmaking, or the hesitant frontier between legal theory and political critique

It is argued here that the concept of reasonableness is a tricky tool for legal theory for it (imperceptibly ?) leads to substantially evaluative stances [10] and is therefore of very limited utility. In a manner very typical of the contemporary Italian biomedical debate, C. Faralli has argued that the 40/2004 Legge di riproduzione assistita is to be criticized as the result of the triumph of a “conservative antecedent doctrine”. In other words, according to Faralli’s above-recalled definition of reasonableness, the Italian law is to be considered “unreasonable”. There are several reasons for which one can find such assessments of parliamentary law-making puzzling ; however, they all derive from the general consideration that such usages of the concept of reasonableness actually constitute attempts at demeaning norms for political (axiological) purposes.

The claim that a parliamentary law (here the assisted reproduction law), in a democratic political regime (here Italy), is “unreasonable” necessarily implies one of the following :

- either there is a causal relationship between the method (parliamentary lawmaking) and the outcome (the law), in which case the outcome’s unreasonableness necessarily results from the method’s unreasonableness

- either there is no causal relationship between method and outcome, and the former’s reasonableness serves as no guarantee of the latter’s reasonableness.

In this latter case (no causal relationship between the implementation of a reasonable [parliamentary] method and the achievement of a reasonable result), the whole point of reasoning in terms of reasonableness from the point of view of legal theory is somewhat minored altogether, unless we think procedures and methods have an interest in themselves. At any rate, such perspective would be at odds with some of the most critical trends of 20th century political and legal philosophy, among which the most prominent ones led by Rawls and Habermas, who are precisely based on the premise that there is something like a causal relationship between procedures and outcomes [11]. In the former case, even greater difficulties emerge for indeed, one might wonder : where does it take us (legal theorists) to describe parliamentary law-making as “unreasonable” ? What is it in parliamentary confrontation of opinions that draws it away from a reasonable method of constructing biolaw ? And-paramount to all- : by what should it be replaced ?

It is not suggested here that all the authors and legal scholars who have opposed the Italian legge 40/2004 for being “unreasonable” have implied either one of these two quickly sketched premises (that there is, or that there is not, a causal relationship between the reasonableness of a method of lawmaking and its actual outcome) –although some might well have. Rather, I believe the concept of reasonableness has often be used in a much lighter fashion ; more accurately, it has been used in a political (as opposed to legal) sense, as a means of opposing on political (axiological) grounds a law whose [democratic] legitimacy was out of the question. As a matter of fact, these are not uncommon mores in the world of biolaw. The Italian law is criticized as unreasonable by progressive actors of the public debate on bioethics that have the impression it is too restrictive. The EU decision to fund research on human embryos is criticized by conservative groups that accuse the EU research policy of being too utilitarian. The French law on bioethics is said to be unreasonable both by catholic groups because it allows research on human embryos, and by important parts of the scientific community because it only does so reluctantly and restrictively. All these groups who criticize biolaw have the impression that either their views were not taken into account or that they were not put together in a correct way –thus, that the biolaws they criticize are “unreasonable”. Social actors may well say so much ; by doing so they only exercise their freedom of opinion and aim at exerting political pressure in the law-making process. Whether it is justified for legal theory (and legal theorists) to engage in a similar assessment of politically legitimate law-making in terms of reasonableness is much more dubious, for the challenge of objectivity here seems insuperable. In that perspective, it is contended here that the role of the legal theorist in the field of biolaw is easier justified when restricted to “clarifying points of contention and agreement”, hopefully with the effect of later “facilitating the processes of political negotiation” (Trotter, 2006, 247).

3. Reasonableness, Law and Ethics

Maybe the contemporary interest legal theory is paying to concepts such as “reasonableness” is only an additional sign of how penetrated by ethical conceptions contemporary legal theory is. Because there is another possible theoretical explanation for evaluative usages of the concept of reasonableness that has not been accounted for hereabove. It may well be, indeed, that those who so refer to the concept do pre-suppose that there is a causal relationship between methods and outcomes but deny however that parliamentary law-making is a reasonable method and recommend that other ones are more satisfactory. Such a posture would somehow resemble a habermassian perspective in which language (and no longer the State) is the ultimate foundation of democratic norms. In which case, what conceptions of reasonableness that have to do with the idea that “good” outcomes are associated with “good” methods eventually convey is the idea that a reasonable body of norms no longer is essentially associated with political or institutional concepts such as validity, sovereignty and ultimately legitimacy. Instead, it is notions like deliberation, acceptability, participation, etc. that are to be taken into account. These underpinnings are worth reflecting upon.

At any rate, it is quite undisputed that many notions associated to the concepts of political legitimacy and sovereignty have been seriously challenged in contemporary legal thought. Constitutional courts [12] seem to have taken over legislators as the ultimate source of law –all the easier that they have been constructed, over the 20th century, as essentially concerned with fundamental rights, the indisputably legitimate mission par excellence. Law is now quite commonly accepted as a potentially State-independent device (Cohen-Tanugi, 1987 ; Weiler, Wind, 2003) ; post-modernity seems to really mean association of private actors (versus unilateralism) as well as trust in soft law and incitement (versus binding rules) –“old” law is said to be challenged by “new” modes of governance (Bùrca,Scott, 2006 ; Trubek, 2006). Institutions-wise, this means that in various regions of the world, governments no longer are considered to be the only relevant source of power, for most of them are integrated in multilevel systems of governance (Bernard, 2002). Hence sovereignty either no longer is thought to lie in the people’s representatives or it is no longer thought to necessarily be absolute and ultimate (Walker, 2006). Simultaneously, contemporary legal philosophy (Cayla, 1996 and 2007) has rejuvenated the idea of the possibility of unveiling something like a universal rationality, mostly throughout a revisitation of procedures as a potentially valid means to valid ends. Communicational Ethics in Habermas’ fashion but also Rawls’ principle of justice are typical of this theoretical stance. Such premises, for they have been prominent in 20th century political theory, have given rise to much theoretical debate, and some of their criticisms are of unquestionable value (see for example Rosenberg, 1998). Here is not the locus to engage upon that path however ; for what needs to be presented in the remaining paragraphs are the various forms such ethical conceptions of law have taken in the particular field of biolaw.

Let us first underlie how strong the case is for such pervasiveness to be particularly conspicuous in the field of biolaw. It has been convincingly argued that from a historical perspective, the struggles relative to the exact determination of the borders of legal categories such as “person”, “alive” or “dead” (eg., in contemporary vocabulary, biopolitical issues) have been propitious grounds for the affirmation of natural law logics (Thomas, 1995 and 2002). Medieval re-readings of Roman law have purported to oppose a number of legal fictions in particular those who contradicted biological life and genealogical orders [13] Instead, they sought to impose an anthropological understanding of the legal category of “persons” throughout the historically disputable idea that it was meant to apply to all living persons. Contemporary legal debates and especially those who have arisen with respect to biomedical issues seem to confirm this historically inspired analysis for indeed, there are strong links between those issues and the reappearance of axiologically-inspired theories and principles of law (Thomas, 2002, 130 : “Contemporary law’s postulate that the body is inherent to the person traces back to medieval juridical speculations that denatured the originally purely functional sense of the person in Roman law on the basis of theological premises” [14]). This is paradigmatically illustrated by the recent fate of the human dignity principle (HDP). Not only has Western legal orders’ recent infatuation with the HDP strongly coincided with their facing regulatory challenges in the field of biomedicine (Beyleveld, Brownsword, 2001), the particular field has also strongly echoed a very particular understanding of the principle by valuing “dignity as constraint” way over “dignity as empowerment” (Beyleveld, Brownsword, 2001). Thus the HDP may have been called a “two-edged sword” (Feldman, 1999, 685), it mostly seems to have served the interests of the “dignitarian alliance” (Brownsword, 2003 and 2008) in the field of biolaw, as it has been mostly promoted as the vector of duty-led approaches (over rights-conferring ones) and neo-kantian normative obligations (Hennette-Vauchez, 2008). It is contended that the concept of reasonableness is susceptible of playing similar a role.


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par Stéphanie Hennette-Vauchez

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[1] It would be interesting to investigate the link between the intensity of such breakfast (or raw personal preferences) theories’ rejection within specific legal communities and the status therein of legal sociology. I would not be surprised for a correlation to appear, for the sociological approach’s premise is so similar to that of breakfast-like theories (eg. the notion that elements exterior to law may shed an interesting light on legal processes) that it would usefully account for legal communities’ often limited interest in types of investigation that threaten the very idea of the autonomy of law.

[2] Multiple examples can be referred to here, for the human dignity principle has been used by : the South African Constitutional Court to condemn prostitution (CCT31/01, 9 oct. 2002, Jordan v. the State) ; the German Federal Administrative Court to uphold the probation of a particular class of Peep shows (BVerwGE (1981) 64, 274) ; the French Council of State to uphold city ordinances prohibiting dwarf-throwing games to be organized in nightclubs… (C.E., Ass., 27 oct. 1995, Commune de Morsang sur Orge, rec. p. 372).

[3] They argued that such principles could be used and generate common grounds between people and groups from different moral backgrounds, such as deontologists and consequentialists. They identified principles such as those of autonomy, beneficience, non maleficience and justice to be such middle-level principles.

[4] Emblematically in that respect, see the very official and institutionally prominent 1985 conference that brought together scientists, politicians, lawyers, moral philosophers, etc.Proceedings :Génétique, Procréation et Droit, Paris, Actes Sud, 1985.

[5] For a few yardsticks : Spain enacted a law on medically assisted reproduction as early as 1988 (ley 35 del 1988). The famous British Human Fertilization and Embryology Act was passed in 1990. France voted its first Bioethics Law in 1994 and recently adopted a new one (2004). Now, most countries have legislative regulations in the field of biomedicine : Germany, the Netherlands, Italy, Switzerland, Portugal…

[6] Countries such as France, Italy, Poland (1999), the Netherlands or Sweden have signed the 1997 Convention but still not ratified it. Others, such as the United Kingdom, Ireland, Germany or Belgium have not even signed it !

[7] In this respect, the UNESCO Declarations (from the 1997 one on the Human Genome to the 2005 one on Bioethics and Human Rights) can also be read as so minimal that they actually constrain none of their signatories : see Girard G., 2006. Similarly the much praised art. 3 of the European Charter of Fundamental Rights can be viewed as achieving only minimal results, if only because of the manner in which it repeatedly refers (and thus yields to) national law ; see Hennette-Vauchez S., 2005.

[8] Note that this formula remains ambiguous enough for the adoption of this watered down declaration to have been divisive still, for there were 84 votes in favor, but also 34 against and 37 abstentions. This is to be explained by the fact that the countries who opposed the idea of a global ban on all sorts of cloning (reproductive and therapeutic) argued that the final declaration’s wording had not lifted the ambiguity and could still be interpreted as encompassing therapeutic cloning.

[9] For a representative excerpt of the book’s main idea, see : “Some levels of disagreement run so deep and so wide as to render allegations of a shared morality… meaningless…. [some discussions] imply not only surface standard disagreement, but deep disagreement over fundamental principles as well. They cannot be regarded as variations of a single universal standard of patient autonomy where disagreement or difference is merely a matter of degree. Instead, their disagreement shows substantial incommensurable difference” (Tao, 2006, 155).

[10] It is hypothesized here that such substantial evaluative stances are per se incompatible with a posture of legal theory, and therefore that law is not to be assessed in terms of its substantial conformity to pre-existing heteronymous principles.

[11] More accurately, it should be specified here that Habermas’s ideal procedure of discussion is constructed as (and justified by) enabling true democratic agreement. However his discourse theory has been criticized by many aspects. For a recent and stimulating critique from the point of view of Austinian pragmatism, refer to Cayla, 2007.

[12] Actually, this also applies to constitutional courts in a loose sense, ie. one that would include courts that are not technically constitutional but are said to exert constitutional functions, such as obviously the European Court of Justice (see among many examples of the constitutionalization literature applied to the ECJ : Stone Sweet, 2004) but also, more recently, to the European Court of Human Rights (see, for example Greer, 2005).

[13] The classical example being the legal fiction allowing the unborn son to inherit from the deceased father. For other examples, see Thomas, 2002, 137.

[14] Our translation from the French : “L’inhérence du corps à la personne, qui est un postulat du droit contemporain, plonge ses racines, en réalité, dans les speculations juridiques médiévales qui, à partir de prémisses théologiques, dénaturèrent le sens purement fonctionnel de la personne en droit romain”.

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