Constitutional Dilemmas for 2007 (and beyond)

Euthanasia, Same sex unions, the legal status of embryos; these are few of the most daunting ethical issues that are debated in Europe and America.

The risk of polarisation of societies on these issues is great. In short, many believe that you simply can't regulate life at its beginning or at its end. In reality, part of the society believes that god gives and takes life so human cannot decide at his place. Half of the society disagrees and believes that humans must intervene in order to say what is permissible and what is not.

Given that the substantive issue is so difficult to settle, many argue that we should agree on a procedure on how to decide. Again, there's a party that trust supreme courts to do this job, and another faction that believes that representative instituions (i.e. parliaments) should take the lead.

I think that both majority rule and judicial adjudication are unfit for the job. Both would produce more polarisation than reduce it. Courts cannot escape the problem: the scene is always set as a confrontation between two claims, and the court must decide between those two claims. There is little margin for mediation and reasonable compromise. Parliaments, on the other hand, cannot possibly hope to settle these issues by voting. This process would have the result to trigger a neverending parliamentary battle, where opposing parties would try to impose their preferred view anytime they come to power.

Perhaps a better compromise on how to deal with those problems could be a special procedure whereby MPs and various other specialists are brought together to work out a compromise (it would inevitably involve a sacrifice). No simple majority would be allowed, at best a qualified majority (say 2/3) in extreme cases where unrelenting disagreement cannot be placated in any other way.

This is the gist of my new book, Constitutional Dilemmas, forthcoming in June 2007.