Rights are the central notion that contributed to the success of secular liberalism. From the 60’s Supreme Courts around the world have implemented a liberal manifesto based on the idea of individual autonomy and protected by the right to decisional privacy. From a liberal viewpoint, this development could not be more welcome. Conventional sexual morality has been swept away; in its place, supreme courts have entrenched individual liberty. In the USA this started with Griswold, which invalidated statutes prohibiting the use of contraceptives. Moving on from that we encountered the famous Roe v Wade, which set out a new legal framework for abortion. This was probably the apex of the liberal manifesto, but success was followed by deep opposition from the religious camp who gathered together against the 1973 decision of the Supreme Court.
The point that I want to stress here is the highjacking of ethics by law. In the last 40 years, representative institutions around the world denied responsibility for dealing with pressing ethical issues. Most of the time, as a result, supreme courts had to take up that responsibility in high profile cases that shaped the face of ethics in western countries. By deciding on issues such as abortion, euthanasia, stem cell research, assisted procreation and others, supreme courts begun to police the boundaries of life and death; in other words, they started intervening on the definition of the meaning of life and its quality. This was such an impressive movement that some prominent scholars gave Supreme Courts the appellative of ‘Forum of Principle.’ By this they clearly meant that Supreme Courts were the place where morality in action was taking place. In the judicial forum, more than anywhere else, important deliberations and decisions on crucial ethical issues were taking place.
There is something to be said in favour of this development. The society shook off entrenched conventional belief on how to live and how to live together. While the rights revolution was taking place, many were the people supporting it. It was by any means a popular revolution and met with great enthusiasm in the more progressive part of the society. I am certainly not the one who is going to disapprove of such a progressive development. But I have to acknowledge nonetheless that this liberation of the society came with a price which is becoming to appear only now. The legalisation of ethics entailed the polarisation of the society. The two poles are roughly the religious and the liberal poles. The liberal pole favours a progressive dismantling of conventional ethical standards. In their place they favour an increase of freedom of choice and pluralism. The religious pole favours the respect for some ethical guidelines which have characterised the society for a long time.
Law polarises ethical issues for a simple reason. It deals with every issue in a binary logic. On one side, one argument. On the other, the counterargument. They exchange their views and then a winner is declared. Most of the times, in the last, 40 years the winner in the forum of principle was the liberal progressive. The loser was the conservative religious. This could not happen without a response. Thus conservative organisedc themselves to serve the religious community, in particular those religious people that felt a huge blow from the liberal court. The political world decried the tyranny of liberal progressive values and the manifesto was always an anti Roe v Wade manifesto. Presidential elections took place on very few issues and abortion often played the role of the deciding point. Many voters, generally inclined to vote for democrats, would vote for republicans to deliver on the promise of an anti-abortion law. Politics in turn became increasingly obsessed with judicial power and one of the critical domestic issues nowadays concerns the nomination of justices at the supreme court. Bush managed to nominate two of them. Alito and Roberts, two justices that promise to carry further the conservative anti-revolution.
In Europe the rights revolution was more subtle. Deliberative institutions, much as in the USA gave up their responsibility as to the decision of pressing ethical issues (they were much too concerned with economic issues). The progressive revolution took place at times through judicial intervention and at times through alternative means. For example, in Italy, liberal-progressive reforms took place through Referendum. Italy is one of the few countries in the world to have a normative referendum, that is a popular consultation that has the power to abrogate valid statutes. Thus, abortion law, divorce law, and many other issues have been decided through Referenda and the parliament simply had to bow to the popular will and enact new laws with this new orientation. In some other countries, constitutional courts played a corrective role. In France for example, the conseil constitutionnel empowered itself in 1971 to control the constitutionality of statutes against the background of a range of different bills of rights from the past. This way, the conseil constitutionnel assisted the parliament in carrying out the necessary reforms in a progressive and liberal direction. In Germany, the BVG played a robust role in enforcing the rights revolution; so much so, that the German constitutional court also required the institution of the European Community to do the same.
But the characteristic trait of Europe is probably the intervention of another supranational institution, the ECHR which sits in Strasbourg. European states gave up part of their sovereignty as far as their ethical reforms were concerned. At their place, that is instead of national parliaments and national courts, a supranational court was to intervene on very sensitive issues. The ECHR thus had a number of landmark cases on freedom of expression, right to privacy, protection against torture and inhuman treatments, right to life and many others. Nowadays, it increasingly intervene on matters of religious liberty. In particular, it has to deal with difficult issues concerning muslim scarves in turkey, and other similar problems. European ethical standards are ultimately decided in this forum. This is convenient from various viewpoints. National states do not have to bear responsibility for these difficult issues. Individuals are pleased since they have yet another judicial appeal after having exhausted national remedies.
Europe, which is sociologically a secular society, does not face as in the USA a polarisation between the liberal and the religious society. Instead, the polarisation which becomes increasingly important is between the secular Europeans and the religious others, in particular Muslim people. There seem to be an increasing inability to engage with the religious minorities; in turn, religious minorities feel increasingly misrepresented by the neutral liberal and progressive European States and Institutions.
On top of this gap, there’s a growing dissatisfaction on the part of both national states and the ECHR. The latter continuously laments the impossible workload under which its institutional apparatus is crumbling. National states, in particular Britain, want to bring rights back home as they become dissatisfied by the supranational decisions. It is within this context that the European Court of Human Rights seem to be prepared to increase the national margin of appreciation and acknowledge the role of representative institutions when they actually intervene on certain ethical issues. A good example is the case Evans v UK, decided by the fourth section of the ECHR. This case concerned an issue of in vitro fertilisation. A woman, unable to conceive naturally, sought medical advise to start that procedure. Before implantation of the embryo, however, Mrs Evans is diagnosed ovarian cancer. Doctors advice her to undergo cancerous treatment before proceding with the ferilisation. She agrees to that, which means that the embryos formed with her eggs and her husband sperm are the last opportunity to bear a child. Mrs Evans worries about her future but her husband insists that he will always be with her. Two years go by and Mrs Evans, who has had her ovaries removed, is now ready for the embryo implant. Her husband, however, has changed his mind and does not want anymore to give his consent to that process. Law is on his side as it is clearly stated that each donor is allowed to change his mind up to the moment of implantation. Mrs Evans argues that her husband has created a legitimate expectation and as a consequence he cannot withdraw his promise. In this case, the ECHR acknowledges the existence of a dilemma and a human tragedy on the part of Mrs Evans. In a highly unusual move, however, the ECHR refuses to engage in the balancing of the competing interests at stake. Instead, the European Court sticks to the ‘bright line’ drawn by the UK parliament.
It is probably early to draw conclusion from this decision. But it does seem to point to a situation in which the European Court feels unprepared to set once more European ethical standards for everyone. On the 23rd of November 2006, the ECHR will gather in its more important formation, the Assembly, to review this decision. It is possible that the ECHR will insist on its leading role as the ethical setter. This would not be surprising. To the contrary, it would probably point to the present European ethical crisis. Given these circumstances, Europe may prefer to maintain the statu quo, but how long is this possible? What kind of event is Europe waiting before rethinking its ethical foundations?
Law, in particular rights adjudication, polarises a society if it takes too many responsibility in relation to ethical dilemmas. Instead of making dialogue possible it excludes it when stretched beyond a limit. Representative institutions must be more responsible; if they avoid deciding those issues, they must explain why and how we should deal with them more adequately.
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