2021 Law, Bioethics and Human Rights Part I PDF

LAW, BIOETHICS AND HUMAN RIGHTS Part I Prof. Ettore William Di Mauro  Social reality and legal system Norms and behavior Norms Behavior...

LAW, BIOETHICS AND HUMAN RIGHTS Part I Prof. Ettore William Di Mauro  Social reality and legal system Norms and behavior Norms Behavior - is a human act. -are commands, external impositions -And guide everyone's actions The evaluation of human behavior is the function of norms The behavior is just or unjust, moral or immoral, lawful or unlawful, if it conforms or differs from the norm that concerns it Each norm is linked to a rule There are rules of conduct, constitutive (art. 106 ss. c.c. Wedding), organization (es. Art. 2364 cc. Shareholders’ meeting) and validity (es. Art. 1418 c.c., Nullity of the contract) Law, Bioethics and Human Rights – Part. I 15/01/25 Pagina 2  Behavior evaluation presumes knowledge of the rules The set of rules orders civil coexistence The set of legal rules and principles form a unitary, complex and hierarchical system This is a legal order (legal system) The realization of the rule is guaranteed by sanctions, positive and negative: Positive: e.g. light fiscal discipline for investments in a difficult area Negative: e.g. imprisonment (penal system), compensation for the damage (civil system) Law, Bioethics and Human Rights – Part. I 15/01/25 Pagina 3  Ius, morality and non-juridical rules The ius shares with ethics, economics, religion and sociology the rules widespread in a given community Distinguishing legal rules from social or moral ones is difficult The Ius is only one. It prevents and resolves social conflicts and also has a moral basis. Without the moral consent of the community, observance of the rules would be impossible. Morality is the need to question the conscience Ius and morality are complementary i.e. “Thou shalt not steal” is a moral and juridical rule Law, Bioethics and Human Rights – Part. I 15/01/25 Pagina 4  Legal language and common language Legal language does not always coincide with the common one. i.e. Border words: person, individual, interest, promise Legal language assigns a specific meaning to certain words so-called Legal qualification Law, Bioethics and Human Rights – Part. I 15/01/25 Pagina 5 Legal rule, article, norm. Rules and principles as norms Ius does not define the norm, the rule and the principle, but presumes them. Legal rule: is a statement that is part of a text that is the source of law Legal Article: is the internal partition of a law i.e. Article 1 Universal Declaration Of Human Rights. All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood. Article 13 Universal Declaration Of Human Rights: 1) Everyone has the right to freedom of movement and residence within the borders of each state. (2) Everyone has the right to leave any country, including his own, and to return to his country. If the article has several paragraphs it is divided into subparagraphs (comma/i) Law, Bioethics and Human Rights – Part. I 15/01/25 Pagina 6  Legal Norm (Norma giuridica) Legal rule + Interpretation = Legal norm If A, then B Scheme of legal norm A = actual situation B = legal effects i.e. art. 896 c.c. : If the roots of a tree planted in the neighbour’s farm land go into its own farm land, then the owner can cut them off Law, Bioethics and Human Rights – Part. I 15/01/25 Pagina 7  Legal Rules and Principles They are legal norms the legal rule is a norm that requires a specific set of behaviors for its satisfaction (all or nothing). i.e. the rule that requires a given vaccination can be respected or not respected: if vaccination is performed, the rule is respected; if vaccination is not carried out, the rule is not respected. The principle is the norm that imposes the maximum realization of a value (more or less). –it is not definable –It is an open norm i.e. the rule "The republic protects health as a fundamental right” (art. 32 Cost.) is a principle because there is a plurality of behaviors capable of achieving it, even at different levels (by imposing a vaccination, by providing periodic medical examinations, by prohibiting smoking in public places). Law, Bioethics and Human Rights – Part. I 15/01/25 Pagina 8  Each legal rule is attributable to at least one principle The rule provides behavior and evaluates it; this behavior, if evaluated positively, constitutes a way of realizing a principle The rule is a choice among the many opportunities for the realization of the principle (Compulsory vaccination is one of the many ways of protecting health) The principle connects a series of rules with each other (vaccination obligation, no smoking, etc.) In this way the principle unifies the rules to a common value No rule makes sense if it is not referred to a principle When the law provides for a rule, it makes a choice on how to realize a principle Law, Bioethics and Human Rights – Part. I 15/01/25 Pagina 9 In a constitutional order, no rule makes sense if it is not justified according to the principles of the Constitution. The set of rules and principles = ius = legal system The legal system is open The only limit is given by compliance with the rules on legislative production and by the rigidity of the Constitution Every problem of life recalls a plurality of rules and principles, to which a plurality of values ​corresponds. Law is culture, a complex set of values ​oriented towards the determination of common living. Law, Bioethics and Human Rights – Part. I 15/01/25 Pagina 10  The balance of principles In the plurality of principles a balance is necessary Balancing means identifying the competing principles, identifying the applicable rule and the appropriate solution to the specific case The balancing criterion is reasonableness Reasonableness is a judgment criterion derived from the legal system. The actual rule applied is reasonable if it is identified by systematic interpretation following balancing. Law, Bioethics and Human Rights – Part. I 15/01/25 Pagina 11  Reasonableness Reasonableness concretizes a preference, it is a judgment criterion on the preferability of the rule to be applied. The foundation of reasonableness is the value of the person (art. 2 Cost.) Law, Bioethics and Human Rights – Part. I 15/01/25 Pagina 12  The sources of law They are acts or facts considered by the legal system to be suitable for creating, modifying or extinguishing legal norms. The sources are identified from other sources of law (so-called norms on legal production), i.e. art. 117 Cost. each legal norms is set by a superior (Principle of the hierarchy of sources of law) At the top of the sources is the Constitution Law, Bioethics and Human Rights – Part. I 15/01/25 Pagina 13  The HIERARCHY of SOURCES of LAW 1. Constitutional sources (Constitution, constitutional Laws); 2. European sources (Treaties, Principles, Regulations and directly applicable Directives) and some international sources; 3. Primary sources (Laws, Legislative Decrees, Law Decrees, Parliamentary Regulations, Referendum abrogating laws and Regional Laws); 4. Secondary sources (administrative regulations); 5. Tertiary sources (customs) and 5 -bis extra-ordinem sources (codes of ethics, collective bargaining agreements, company regulations). Law, Bioethics and Human Rights – Part. I 15/01/25 Pagina 14 the system of sources is closed at the primary level: -a law (primary source) cannot establish another primary source; -Instead, a law can establish a secondary source The hierarchy indicates the active force (ability to create, modify or extinguish norms) and the passive force (ability to resist abrogation) of the source. lower source surrenders to higher The hierarchy must be coordinated with the competence. i.e. the law and parliamentary regulations have the same rank, but only the latter are allowed to regulate the internal organization of the Chamber and Senate. The source that violates the hierarchy and / or competence is invalid. The invalidity of the source is an instrument of defending the axiological integrity of the legal system. Law, Bioethics and Human Rights – Part. I 15/01/25 Pagina 15  The Constitution The Constitution is at the top of the hierarchy of sources the constitutional norms (rules and principles) are directly applicable. There is no need for a law to incorporate them. The law is subordinate to the Constitution The Constitution is rigid. It can only be changed with a particular procedure (art. 138). The republican form cannot be changed (art. 139) The civil code is a law. It focuses on productive activity. The Constitution focuses on the fundamental rights of the person The Constitutional Court checks the conformity of laws to constitutional principles Law, Bioethics and Human Rights – Part. I 15/01/25 Pagina 16  Sources of European Union law Art. 288 Treaty on the Functioning of the European Union (TFEU) Treaty (Lisbon Treaty del 2007, which incorporated the Charter of Fundamental Rights of the European Union signed in Nice in 2001) European Principles; Regulations; Directly applicable directives. The sources of the European Union prevail over national norms In the event of a conflict between national law and European law, the judge will have to disapply the national law and the European one applicable. European norms must respect the fundamental principles of the Constitution and the inalienable rights of the person. The European sources operate on the national territory and together with the other national sources form a unitary Italian-European system. Law, Bioethics and Human Rights – Part. I 15/01/25 Pagina 17  European Union competence The competences are decided on the basis of two fundamental principles: Principle of subsidiarity: In areas not the exclusive competence of the European Union, it intervenes only if the objectives of the action cannot be sufficiently achieved by the Member States. Principle of attribution: The European Union has only the competences that the Member States have decided to confer it. Law, Bioethics and Human Rights – Part. I 15/01/25 Pagina 18 Regulations: they are mandatory, have general application and are directly applicable in each Member State. Directives: they are not directly applicable, but require an internal act of each state If the state does not recognize them or recognize them late, it is responsible for the damage caused to the citizens. Directly applicable directives: they are unconditional, sufficiently precise and the term granted to the State to recognize them has expired. Direct applicability is valid only in relations between citizens and the State (vertical effectiveness), not between citizens (horizontal effectiveness). The European Court of Justice ensures uniformity in the interpretation of the sources of European law. If this interpretation is unconstitutional, the Italian constitutional court must remove it from the legal system. Law, Bioethics and Human Rights – Part. I 15/01/25 Pagina 19  Regional Laws and Customs Regional laws are competent for areas not expressly reserved by the Constitution to State Legislation. In areas of concurrent legislation, legislative power lies with the Regions, except for the determination of the fundamental principles, reserved to the State. Customs are fact sources. They result from a repeated or constant behavior of people. Characteristic elements: - Constant or repeated behavior (so-called usus); - There is the conviction of its duty (so-called opinion iuris ac necessitates) The custom is subordinated to the law and administrative regulations. The custom is effective if referred to by law or administrative regulations (so-called custom secundum legem). In matters not covered by laws or administrative regulations, customs are allowed (so-called custom praeter legem). Custom is inadmissible if contra legem. However, every custom must be in accordance with the fundamental principles. Therefore, there are only those secundum legem. Law, Bioethics and Human Rights – Part. I 15/01/25 Pagina 20  International sources They are divided into: 1.International customs: They rank higher than the primary sources and are comparable to the constitutional ones. They must not conflict with the fundamental principles of the Constitution. 2. International Treaties: They are valid in our country if there has been an act of recognition. Debate on the value of international treaties. The prevailing opinion is that the international agreements have the value of the normative act that acknowledges them. However, we must consider whether they respond to a constitutional interest. In this case they resist the repeal of successive internal sources of the same rank. i.e. The Charter of United Nations (San Francisco 1945). The importance of UN – The Universal Declaration of Human Rights (Paris, 10 December 1948) National law, European law and international law form the legal system. The judge coordinates all these norms in order to balance the values ​according to an axiological interpretation Law, Bioethics and Human Rights – Part. I 15/01/25 Pagina 21  Fundamental Principles 1. Personalism and solidarity 2. Democracy 3. Legality and division of powers 4. Equality Law, Bioethics and Human Rights – Part. I 15/01/25 Pagina 22  Personalism and solidarity Personalism was born as a doctrine of Christian inspiration Today it no longer belongs to a specific current of thought The person is the point of confluence of a plurality of cultures that recognize in this term their own reference value Art. 2 Cost. The Italian constitutional law recognizes and guarantees the inviolable rights of man both as an individual and in social formations, where his personality takes place, and requires the fulfillment of mandatory duties of political, economic and social solidarity. The principle of the protection of the person is the supreme constitutional principle and is the basis of the legitimacy of the legal system and of the sovereignty of the state. The person is inseparable from solidarity: caring for the other is part of the concept of person. (i.e. solidarity for the purposes of the State or for citizens, spontaneous or imposed). In the constitutional perspective, solidarity expresses cooperation and equality in the affirmation of the fundamental rights of all. Social formations (family, associations, trade unions etc) have constitutional importance because they are the places where the personality develops. There is no supremacy of the group over the individual; social training is recognized in the legal system if it is concretely useful for guaranteeing the development of every person who is part of it. Law, Bioethics and Human Rights – Part. I 15/01/25 Pagina 23  Democracy Democracy is a decision-making procedure that requires a free comparison of opinions and deliberation, with the majority prevailing over the minority. The vote is free and not forced. Democracy is inseparable from equality and from the person from equality, because the right of everyone to participate would not be justifiable; from the person, because not every majority decision is legitimate (i.e. a majority decision which excludes human freedoms or suppresses minorities is not legitimate) Democracy, based on the participation of the person (art. 2 Cost.), characterizes the constitutional system (art. 1 Cost.). The implementation of democracy in society is manifested through mutual respect and moral and legal equality. Law, Bioethics and Human Rights – Part. I 15/01/25 Pagina 24  Legality and division of powers Legality is fidelity to the law, respect for the law and the legal system. Legality is functionally linked to the values ​of the legal system. The prevention of abuse is guaranteed by the division of powers typical of the state. Legislative, executive and judicial power Each power is attributed to a specific institution of the state. The balance and mutual control between these powers prevent the prevarication of one over the other. i.e. the judge is subject only to the law (art. 101 cost.) Law, Bioethics and Human Rights – Part. I 15/01/25 Pagina 25  Equality The constitution recognizes equality: 1.as a prohibition of discrimination based on biological or cultural differences; 2.and as a commitment of the State to remove the de facto conditions that hinder the development of the person. Formal equality (art. 3, par. 1, cost.): all citizens are equal before the law, regardless of sex, race, language, religion, political opinion, personal and social conditions. Substantial equality (art. 3, par. 2, cost.): The Republic removes the economic and social obstacles which, by limiting the freedom and equality of citizens, prevent the full development of the human person and the effective participation of all workers in the political, economic and social organization of the country. Law, Bioethics and Human Rights – Part. I 15/01/25 Pagina 26 Equality is violated: when equal situations are treated differently; when different situations receive equal treatment. formal equality alone is insufficient to realize the constitutional principle of protection of the person and equal social dignity. it is necessary the duty of the Republic to work to adapt the reality of the facts to the social values ​contained in the Constitution. Law, Bioethics and Human Rights – Part. I 15/01/25 Pagina 27 The criterion to be used to apply the principle of equality is reasonableness (ragionevolezza). Formal equality and substantive equality are in mutual function. Both express a single principle: equality in social justice Equality requires that the spread of power take place without force or money Some important questions: -What is the relationship between equality and surrogacy? -How is equality and protection of the person applied in the embryo? -How equality and personalism apply in end-of-life treatment? -How does equality and personalism relate to same-sex families? Law, Bioethics and Human Rights – Part. I 15/01/25 Pagina 28