Prometheus, Golem & Co.: Bioconstitution and Bodiliness in a ‘(World) Risk Society’1
João Carlos Loureiro
Within the mythological plot which shapes Western culture, at a unique intersection of Jewish-Christian and Greco-Latin matrixes, Prometheus stands as a symbol of rebellion against the gods.2 He is often seen also as an archetype of a (self)creator. In Modernity the Promethean or Titanic principle has come to assert itself, refusing divinity and exalting human nature3 and contrasting itself with the Dionysian principle, also reflected in a vision of the body.
As for Golem, a Jewish concept, the different versions of this humanlike figure evoke the production of artificial life.4 The search for the capacity to create bodies is now simply the result of a vast technical and scientific project which aims at going beyond the limits of knowledge by creating life in a laboratory. In a time of genetics and genomes, of DNA sequencing, one must recall that in the process of creating one of the most famous Golems, the Prague Golem, the Rabbi curiously uses Heaven-revealed letters.5 A number of traditional Jewish debates about Golem find some sort of parallel in the controversy about life arising from the somatic nuclear cell transfer (cloning).6
According to some reports, Golem emerged as a possible answer to the question of Jewish survival, by means of ‘a Jew without death’.7 As we know, there have been interventions meant to overcome body limits – and its telomere-written temporality – in a sort of a new pursuit of Methuselah’s project, the Old Testament hero who lived almost 1000 years. In terms of its ethical and legal translation, the door is thus open to discuss the duty to die, so as to allow the novum of birth, so well reflected upon by Hannah Arendt.8
The idea of a Golem – which according to many accounts ended up turning against his creator, as in Mary Shelley’s Frankenstein, a book published with the interesting subtitle ‘the modern Prometheus’ – allows us to revisit also the ‘heuristics of fear’ proposed in Hans Jonas’ Das Prinzip Verantwortung.9 As a matter of fact, some of the ethical or legal discussion on technology evokes a sort of ‘no control land’, epitomized by the sorcerer’s apprentice, as well as models of analysis of risk. Granted that technology inheres the human condition, there is in modern technique a novum that might be summarized in Dieter Birnbacher’s10 three key-words:
a. Technicality – which questions value-centred models of rationality and models of a ‘rationality of the dignity’,11 thereby jeopardizing the ‘image of the human being’ which underlies Western law and ethics (the Heideggerean analysis of the Gestell as well as the instrumental reason triumph might be recalled in this connection);
b. Globalism, i.e. the worldwide reach of acts and their consequences, which forces us to wrestle with issues such as the shortcomings of self-centred, closed states and normativities, or the meaning of state laws at a time in which the borders appear so flexible, with the exception of North Korea and the like;
c. Destruction potential – in addition to the nuclear, chemical and biological weapons, a new threat comes from the biotechnological field, where the possibility to alter the human (biological) nature is being pursued. As we turn to the legal implications of such issues, we have to wrestle with debates over the human genome as part of the common heritage of Humanity, debates over the limits to medical interventions in the human body, and over the tension between the individual genome and the collective one.
In this chapter I will tentatively propose some thoughts on the possibilities and limits of a constitutional approach to the human bodiliness, with a focus on what I have labelled, since the 1990s12 as ‘bioconstitution’.13 I will proceed in two steps.
a. To start out I shall focus on national constitutions’ performance in the context of both fragmentary societies and a world in which borders are being relativized (if pushed to the limit, this latter situation leads to the irrelevance of space, i.e., ‘atopia’14). The normative and constitutional sphere is being envisaged by and large as a network system,15 combining both state regulations with the social ones and the hard with the soft law;
b. afterwards, I shall consider some of the challenges to a constitutional theory of bodiliness. I will focus on the following interventions to the human body, as they seek to: (1) alter, even eliminate, as an elixir of eternal life, any boundaries between life and death; (2) heterodeterminate the other as a double (cloning), or to select certain features, by means of genetics, and within a hybridization and technologization process of the body. Such analysis highlights a bioconstitutional approach to the following items: subjects, goods, positions and principles.
Since the body is a recurrent metaphor in political and normative thought, there is the need to determine what sort of normative corpus is at stake here, especially as far as the constitutional field is concerned.
Technique, Bodiliness and the Constitution: Some Challenges
In the last decades, biomedical interventions have been approached within the framework of fundamental and human rights. Constitutional scholarship has always played a central role and constitutional justice is still regarded by many with hope. A cursory look at the doctrine allows us to realize the trend toward constitutionalization:
a. at the internal level, the conceptualization of new fundamental rights and duties, or at least fundamental rights’ dimensions,16 are seen as signs of constitutionalization;
b. in the (trans)temporal axis, the future generations (and the extremely long-term and distant future generations) are credited with a new relevance in the constitutional field, as asserted by the project labelled constitution of distance (Fernverfassung),17 inspired by analogy with the ‘ethics of distance’ (Fernethik),18 asserts. In a first moment, part of the modern French-inspired constitutionalism – somewhat different from the evolutionary constitution, which the Anglo-Saxon case brilliantly illustrates – reflected about a constitution that would govern us to the end of centuries,19 while simultaneously there was an ongoing debate about the legitimacy to bind future generations.20
Currently, though, the problem is quite different: to what extent are we bound by future, naturally non-existent generations? Time has, indeed, acquired a new density of its own: the beginning of the atomic age has brought about, along with huge amounts of long-lasting (for thousands of years) waste, tremendous risks as well. Along the line of Hans Jonas’ Fernethik, an ‘ethics of distance’ has asserted itself. It is one which compels constitutional doctrine to develop a constitution of distance (Fernverfassung), one which seriously takes into account not only the extremely long-lasting effects derived from a set of interventions, but also the transterritoriality of risks.
Parameter and Circumstance: (In)ability of Constitutional Enforcement?
A preliminary issue is the ability of enforcing the constitution. As a matter of fact, different strategies in this field can be found in late Modernity, namely reduction, destruction or conversion of the constitutional norm.21 The first case can be illustrated by the transposition of Engelhardt’s22 position to the (bio-)constitutional field. In a society of moral strangers,23 marked by a concern with procedure and with an emphasis on the principle of permission, a great number of issues would undergo a process of privatization and commitment to the communities that the individuals belong to.24 As for the destruction of the constitutional measure, some expressions found in Critical Legal Studies portray a deconstructionist matrix that elects indetermination and inconsistence as fundamental tenets of law. With regard to the conversion of the constitutional measure, rooted in the Economic Analysis of Law, the image of the homo oeconomicus is assumed to be a beneficial one.
However, despite the growing fragmentation and complementarity, and without jeopardizing constitutional openness, I believe that it is possible, at a constitutional level, to find fundamental values that may provide a framework for the resolution of clashes over bodiliness.
The Forsaken Image? On the Constitutional Icon, or the Diatribes of Neoscientisms
Linked to the above discussion, though somehow independent from it, is the issue of the human image. As a matter of fact, underlying Western legal discourse there is a freedom and responsibility paradigm. It was gradually woven into History, and while recognizing the constraints of the human condition, such paradigm does not interpret them under a deterministic light.
In the Jewish (and Christian) narrative of Genesis, the image of the human being was understood as imago Dei.25 The Enlightenment significantly contributed to the shaping of an image of autonomy, albeit in a universalizing key, maxime Kantian (this sort of autonomy should not be confused with the Anglo-Saxon idea of empirical autonomy that eventually marked medical law so decisively).
In Western constitutionalism, particularly after Second World War barbarity, the image of a free, responsible and solidary human being asserted itself, while human dignity assumed the role of a foundational principle.26 This is why, as far as human rights are concerned – i.e., within the perspective of philosophy of law and international law27 – both the economic, social and cultural rights, and freedom rights and political participation rights came to the forefront, exorcising the idea of a state reduced to a mere ‘watchdog of property’.28 Along with the ambiguous ‘generations of rights’ formula, and owing to the ecological awareness and technological development, a new set, or at least new dimensions, of rights29 eventually emerged.
However, this image of the human being is now subjected both to purifying fire and to destructive blaze. A corrosive scepticism, one which is beyond good and evil (in Nietzsche’s words), has dominated our values. Thanks to a challenging interculturality and to the acceptance of the ‘new diversity’ of a world where, in each city, there is a tendency to clone such multiplicity,30 this image of the human being was purged from the inadequate waste it carried with it. In many cases, though, instead of reaching an ‘overlapping consensus’,31 this process opened the gates to a fragmented neo-tribalization stemming from a radicalization of multiculturalism.32 The resources of a taken for granted value-centered consensus are now considered baseless, a vestige from some mythology of modern reason, unable to overcome the challenges of late modernity, or post-modernity, as some would have it.
The hierarchic and closed ‘order of values’ (Wertordnung) as a constitutional reading tool, gave way to the recognition of the constitution as an open land of fundamental values (Grundwerte), within which one may strike different balances. However, attempts to strip those values from dogmatic force and to develop projects grounded upon an ‘anarchy of values’,33 have come to light.
On science’s side, naturalism(s) has increasingly gained visibility and virulence. Reductionisms from genetic and neuroscientific matrices34 act as though they were the keys to understanding the human being, reaching the point of assigning themselves the role of dismounting the nature of freedom and responsibility. In practice, attempts to pre-determinate (cloning) and modify the human genome (genetic enhancement) would jeopardise human autonomy, through a process of illegitimate heterodetermination. The human being would become moulding stuff, artifact or product, opening the doors to genetical dominance of humans over humans, as in dystopias like Brave New World. Generally speaking, the technological revolution does not leave the human being’s image35 unscathed.
The abolition of the human being, such as in the Hobbesian homo homini lupus image, has been settled all around in different forms, and now with a new sociobiological twist.36 In dogmatic terms, such a natural state, built upon a selfish individual, is expressed by an ‘autonomist’ reading of fundamental rights; such radicalization would transform the individual, not the person, into a prius. In the biomedical field there have been illustrative instances of denial of alterity.
The so-called GNR revolution – genetics, nanosciences and robotics37 – is out there. Biosciences, especially genetics and currently neurosciences, are moving toward new reductionisms that refuse the foundations not only of constitutional law but of law as a whole, by calling into question human responsibility and freedom. The utopian models of multiple sexualities propose to alter the foundations supporting the human being, as they forsake the traditional distinctiveness of sexes (the masculine/the feminine).
Such interventions, often viewed as the abolition of the human being, seem to give way to the abolition of differences:38 differences between humans and animals (e.g. hybrids and chimeras), humans and machines (cyborg, opposition between body and spirit in terms of hardware and software), Man and Woman (the irrelevance of sexes as illustrated by the rediscovered androgyny) and Creator and creature. All this somewhat mirrors a (post-) secular worldview39 (e.g. the anthropotechniques40).
Will we be able to maintain an ecologically open, personicentric and humanistic conception of constitution?
This chapter proposes a core thesis: the criticism of anthropocentrism does not necessarily need to degenerate into any sort of post-humanism.41 Thus, where xenotransplants are concerned, there is no conflict between, for example, the purported fundamental rights of the pig42 and of the human being. Using swines or other animals, like simians, is essentially a question of risk, of viruses, in the first place, while also a question of impact on the representations of the human being and body.
Human Rights and Biomedicine: Discursive Illusion?
Since this project is placed within the framework of human rights, just as the new technologies (namely those within the biomedical field) have done, one cannot but wonder about the capacity of a category such as human rights. The fundamental rights perspective is basically conceived in state terms, without disregard for other usages (e.g. the Charter of Fundamental Rights of the European Union). Human rights evoke both a legal philosophical perspective – the one having to do with rational foundations – and, most importantly, a legal international perspective.43
Some might consider this approach as doomed, since human rights would not withstand the two following accusations:
a. ethnocentrism (i.e., deficit of interculturality). Human rights emerge as a Western construct, ultimately a weapon of imperialism to subdue and illegitimately interfere in the politics of other states;
b. religiousness (i.e., deficit of universalization). Human rights appear as a Christian construct rendered obsolete due to the advent of secularization, or perhaps more accurately, secularism and state neutrality.
Furthermore, one may question if this category may be effectively enforced, as – due to their level of abstraction – human rights would hardly serve any purpose from a legal viewpoint.
Since I cannot proceed to develop the latter, I argue:
1. against anthropological relativism: for every human being there is a core of values of good and evil; against epistemological relativism, it is possible to reach a reasonable degree of consensus no matter cultural specificities; as for cultural relativism, the context-driven enforcement of values will not hinder the universality of a set of core legal positions (on a foundational level);44
2. that interconstitutionality-based interaction may pave the way to a macro-regional (e.g. European constitutional law), world constitutional law, through intercultural dialogue. This process would allow human rights to be included within the constitutional core and to be enhanced via a dynamics interfundamentality of rights.45
In summary, I posit a material ‘parameter’, the degree of density of which might be arguable, but that, at the end (and even if it does not legitimize the constitution’s imperialist and colonizing models of other branches of law), would render the constitution the central locus of discourse. As to mankind’s image, I assert that plurality is not necessarily a hindrance to an ‘overlapping consensus’46 on fundamental issues and that the perspective of scientific reductionisms undermines humankind. Finally, against those who claim ethnocentricity or religiosity as evidence for the inexistence of human rights, I defend their existence within the framework of multilevel constitutional networks.
Bioconstitution: for a Theory of Bodiliness, especially in Biomedical Law
Body’s Memory, Frailty and Vulnerability
Frailty and Vulnerability
A discussion on legal issues involving the notion and limits of bodiliness necessarily has to be rooted in reality’s analysis, within a framework that intertwines text and context. What we have before us is none other than the ‘a priori of the lived body’ (Leibapriori47), characterized by frailty, magnificently symbolized by the Genesis narrative of Adam’s creation out of clay. Frailty is, thus, a structural feature of the human being’s nature; the human being experiences pain, suffering and finitude, alongside with threats to bodiliness. Herbert Hart48 states that, where frailty (structural frailty, as advanced in this approach) is concerned, it would be quite different if human beings had a different physical shell-like structure that would render them immune to attacks. In his words: ‘If men were to lose their vulnerability to each other there would vanish one obvious reason for the most characteristic provision of law and morals: Thou shall not kill.’49
Frailty is not only structural but also circumstantial and epochal. Our questioning arises in a ‘(world) risk society’50 in which biomedicine, like Janus, suppresses certain risks while creating others. The medical-industrial paraphernalia generates situations where patients are left, in a limbo between life and death, in a persistent vegetative state, leaving us wondering whether this metaphor is of a personal or vegetal nature.51 The advances in human genetics create new categories of patients, those with ‘a healthy life but an ill genome’.52 Furthermore, genetic intervention may jeopardize the human being’s inviolability, the genetic irreplicability and uniqueness (cloning) and humanhood itself (hybrids).53 If, on the one hand, the new information technologies applied to health care deepen our knowledge and capability of intervention, on the other hand they bear the fear of the informational Big Brother.
The frailty inherent to specific steps and conditions is what we call vulnerability. This is the frailty we experience deep in the flesh, i.e. in bodiliness; this frailty calls upon law and rights to protect the fundamental goods. While making us more aware of others and of care, ethically and legally speaking in particular where human and fundamental rights are concerned, this frailty and incompleteness also claims for the assertion of fundamental duties.
Pedro Laín Entralgo54 defined the human body as ‘the material makeup which enables the human being to live, to fall sick, to get cured and to die.
Let us point out some fundamental issues on bodiliness:
a. The bodiliness experience is essentially based on being a body, not on having a body: ‘I am my body’, said Gabriel Marcel; and this is decisive in the juridical realm (e.g. the issue of the so-called ‘rights over the body’);
b. the human body as objective reality (Körper) should be distinguished from the human body as flesh (Leib). During the 20th century, new perspectives on the former emerged: there were major breakthroughs in genetics, namely the DNA knowledge increase and the human genome mapping.55 The latter derives from the intimate experience of one’s own body.
c. The animated body is a sexed body, i.e. there is no such thing as a generic asexual human being. The experience of humankind is, to this extent, disjunctive and not divisive, sex thus being a binding element. Human existence, characterized as polar56 in terms of masculine/feminine,57 is a material presupposition of law.
d. Bodiliness is temporality and historicity. The experience of temporality is an experience of finitude, of awareness of death, the ultimate frailty. The human being deals with this biological finitude as an ‘animal quaerens’58 by raising the issue of the meaning of life, and with the frailty of his/her condition, by craving for longevity, at which law also aims.
e. Bodiliness is a mediation process necessary to the human being’s relation with others and the world, an essential alterity dimension.
The animated bodiliness is legally protected59 in its various dimensions, which gained some degree of autonomy. As a general rule, the following goods are at stake: life, personal integrity – not merely physical, which is a plain external view of the body – personal identity, sex and health.
Back in the 1990s, the word bioconstitution referred to the legal constitutional framework connected to bioethical issues. However, it soon became clear that it was necessary, heuristically, to develop a consistent concept on which to build a partial constitution, with a field of its own, independent from bioethics. This formula, shaped either as a ‘bioethical constitution’60 or as an autonomous version,61 eventually made its way in Portuguese-speaking countries, especially in Brazil (although in this process there were misunderstandings and even oblivion as to its origins).
Bioconstitution is the set of norms (principles and rules) formally and/or materially constitutional, which has as its object actions or omissions either from the state or from private entities, mainly centred on the protection of life, on identity and personal integrity, and on the health of today’s or future human beings, especially as biomedical threats are at stake.62
This constitution stands on a set of fundamental goods and has great potential for comparison at the constitutional law level. The core of this partial constitution is bodiliness.
Limits of Bodiliness
Taking into account the limits of the human body, I shall begin by tracing some guidelines for a bioconstitutional perspective.
The word limits is, in any dictionary, polysemic.63 Limit evokes differentiation and also limitations, incapacities or insufficiencies. This word conveys yet another sense, that of ‘should not be trespassed’,64 which allows for the difference between the possible and the permissible/acceptable (the latter will further be developed in connection with the normative limits to body interventions).
Concerning difference, the pressure by the several post-humanisms challenges the human body’s specificity and the human/non-human code, illustrated, for instance, by hybridation and interspecific chimeras phenomena.65
As to the limits of the human body, there are several important distinctions to be made:
a. absolute common limits, pertaining to the human condition: human beings have no wings, although they can follow Icarus by technological means;
b. relative common limits, characteristic of certain steps in human life; these limits may affect all human beings or a certain category (women, for example, cannot achieve postmenopausal pregnancy without technological aid);
c. specific limits, that some human beings experience while others do not (i.e. more or less severe disability).
In the first case, these so-called limits refer to impossibilities inherent to the human condition and nature; in the second and third cases, limits are abilities that the human species or one of the sexes possess but eventually lose or never acquire.
However, technology may surpass some of these limits, firstly and foremost by medically restoring normal abilities. For those who view deficiencies as nothing but differences, it would be legitimate for a deaf-mute couple to use pre-implantation diagnosis for deficiency-carrying embryo selection.66
Body limits are essentially those inherent to the human condition: finitude and frailty. The former unveil a mortal body, while the latter are attributes of a frail or vulnerable body in the etymological sense, i.e. a body that may be wounded, and also a body liable to illness and ageing.
The anthropological experience of illness underlies medicine as care for the ‘other’, while death is behind attempts to overcome, or at least postponing it, and ageing has driven the pursuit for youth. However, these attempts were traditionally viewed as some sort of magical or even devilish pact (‘selling the soul’) forsaking the Jewish-Christian alliance.67 Nowadays, ‘invulnerability’68 is pursued by more material means.
Medicine is, thus, an ars that confronts body limits. Medicine surpassed its helplessness with the emergence of the ‘medical-technical power’69 that has provided a broad range of treatments for disease. Now that society idolatrizes the body, medicine offers solutions to rejuvenate and mould a perfect body; death would be overcome or at least postponed by an amazing life expectancy increase (eternalized body), while genetic enhancement is well under way.
There is an asserted technical-scientific paradigm underlying all these attempts to overcome death. In fact, these attempts are one of Humankind’s oldest aspirations, which – according to Condorcet,70 in the context of the Enlightenment metanarrative of progress – medicine was obliged to fulfil. The notion of an eternalized body has Methuselahian contours and sees cryopreservation as a means to turn a corpse back to a living body, an inversion of the human being’s natural trajectory. Eternity technologies increasingly resort to genetic intervention, although cloning is just an illusion71 since human identity is unreplicable.72 As a general rule, these projects aim to achieve a kind of quasi-immortality, whereby quasi means long life expectancy but not immortality, and immortality does not mean invulnerability,73 since external factors like accidents and infectious diseases74 are the new Achilles’ heel.
As for medically assisted reproduction, for certain people sterility is now a limit that medical intervention may overcome. The availability of techniques targeted at new customers led to the demand for medically assisted reproduction rights, even for homosexual couples and single mothers. Moreover, postmenopausal pregnancies are now the banner for those who are past their fertile age.75
The defence of an enhanced body encompasses not only risk factors but also legal issues, as it paves the way for genetic type differentiation. State-of-the-art diagnosis techniques originate talk of a ‘transparent body’. Traditionally speaking, medicine is all about correct diagnosis and information, wherein symptoms are a key element to medical practice. Now at stake is the creation of a diagnosing body, one which would have nanotechnologies integrate sensors in the biological system as a means for monitoring and promptly giving answers to various parameters.76
Nonetheless, (bio)medicine generates new limits to the human condition, due to error and risk in general, but also due to the possibility of survival with no chances of recovery or even in a persistent or chronic vegetative state. Such scenarios deepen human anguish and legitimize the limitation of intervention, provided that specific principles are met.