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Revista Derecho y Religión, “Biolaw & Religion”, vol. II, 2007

Revista Derecho y Religión, “Biolaw & Religion”, vol. II, 2007 

Presentación: Marco Ventura, Universidad de Siena

When the interplay between science and religion arises, opinions and interpretations differ strongly. Not rarely is it argued that religion has always been against science, that science always had to counter religious prejudice in order to achieve its many successful results. At the same time, it is equally possible to defend the opposite position which maintains that religion has always represented a powerful motivation for men to devote themselves to research and discovery; one may moreover believe that religion always kept science within the bounds of what is beneficial for mankind, ever mindful of human dignity.  Any application of science that works against humanity would therefore be perceived as the result of the ambition of science to proceed on its own without turning towards religion for ethical guidance.

Several examples can be found in history to support each of the two contrasting viewpoints that place religion either in opposition to or in favour of science. As an example of aberrant, God-free science, inhuman experimentation in the concentration camps is frequently cited as coincident with the Nazi detachment from any traditional religious teaching. As an example of the religious opposition to free research, the Galileo case is equivalently evoked.

 The abundance of examples illustrating the positive or the negative contribution of religion to science does not definitively demonstrate the truth of either of the two positions. A middle-path perspective looks far more plausible. History teaches us that religion has been both an ally and an enemy of science and vice versa. Many pioneers whose discoveries changed the world were driven by their own religious background and sense of commitment. It is equally true that many religions persecuted and killed researchers because of the incompatibility between scientific knowledge and orthodoxy. In every historical, cultural and religious context, the religious debate on science and the scientific debate on religion have always been controversial and contradictory. So far no ultimate and absolute conclusion may be drawn with regard to the interaction between science and religion.

Consensus is easier on a more specific aspect of the relationship and competition between religion and science. Religion and science have widely competed through the law. Their relationship has never failed to imply a legal dimension. Law has never remained neutral: it has helped religion either to oppress or to encourage research, and law has helped science to deny or to include religion. Though many examples exist, the corporal dimension of Catholic canon law remains one of the best.  In his groundbreaking work La main volée: Histoire juridique du corps (Paris: Seuil, 1993), legal historian Jean Pierre Baud demonstrates that religion (and especially canon law) is crucial in the development of the legal western understanding and regulation of the body.

 The role of the law in the competition between religion and science has reflected throughout the centuries the development of religious laws (again, it is intriguing to consider how much Catholic canon law has changed in this respect) as well as the development of the relationships between the states and the churches, between law and religion.

 After World War II, a new chapter opened in the confrontation between science and religion as well as in the legal handling of that tension. Scientific and technological development deeply affected traditionally sensitive domains such as birth, life, death, suffering, ageing, sexuality, gender, healing, health and medicine. Not unlike other historical scientific turns, twentieth-century life sciences brought into play new powers, new options, new issues and new conflicts. All of these innovations have profoundly questioned religion and religions. Not only did new abstract and neutral scientific possibilities arise, but also the very notion of change itself became the effect and the cause of the more general turn of western civilisation into a secular age. (I refer to the expression and concept used by Charles Taylor in his overview on the secularisation process: The Secular Age, Boston: The Belknapp Press of Harvard University Press, 2007).

 In cases like assisted reproduction, genetic modifications and biotechnologies, the specific impact of new technologies in generating new issues and in presenting new questions to the law is manifest. But in other cases, technologies only matter to the degree that the socio-cultural context itself has changed.

 For instance, abortion and euthanasia as such are not new issues for mankind, but they have assumed new importance since the sixties and the seventies because of the mingling between new technologies and medical procedures on the one hand and new cultures (e.g. women’s independence and rights) on the other. In its famous 1973 decision Roe vs. Wade on the admissibility of abortion, the US Supreme Court gives illustrates the turn in the approach to the issue of when life begins: “We need not resolve the difficult question of when life begins. When those trained in the respective disciplines of medicine, philosophy and theology are unable to arrive at any consensus, the judiciary, at this point in the development of man’s knowledge, is not in a position to speculate as to the answer.” The issue is certainly not a new one, but the context and the cultural references push the judges towards a new way of handling it. Some thirty years later, the new context of question  is rather the competition between supranational and national sovereignty.  When the European Court  of Human Rights is called to decide on abortion, the decision is based on procedural grounds: “the issue of when the right to life begins comes within the margin of appreciation which the Court generally considers that States should enjoy in this sphere (…) The reasons for that conclusion are, firstly, that the issue of such protection has not been resolved within the majority of the Contracting States themselves (…) and, secondly, that there is no European consensus on the scientific and legal definition of the beginning of life” (European Court of Human Rights, case of Vo v. France, 8 July 2004, n. 82). Again it is impossible to dissociate the purely moral and scientific issue from the cultural context and its impact on the legal dimension. Globalisation and the new frontiers of science and technology like biotechnologies are more and more challenging (M. Ventura, Biotech as the New Frontier for Biolaw and Ethics, in Collection of Texts from the EU-Macao Co-operation in the Legal Field, Macao, 2007, pp. 421-432).

 The field of life sciences has emerged as a complex mixture of science, technology, finance and culture; it has also given rise to a mixture of old questions that have always belonged to humankind (how to deal with an undesired pregnancy) and absolutely new questions that spring from the new state of art and technology (how to handle DNA and stem cells). Answering old and new questions in the context of modern and post-modern life sciences naturally involves the ethical and the legal dimension.

 The 1970s saw the birth of bioethics as an attempt to cope with the gap between traditional ethical teachings and new issues in the new context. Biolaw emerged at the same time as the legal dimension of bioethical reflections. In both bioethics and biolaw a strong methodological commitment prevailed, especially at the beginning. New questions in a new context urged new approaches. The mere choice to establish a new field and speciality requiring a new language of its own expressed the concern for the limits of traditional ethics and law and the need for substantial renewal.

 Interdisciplinarity became one of the most important features of bioethics and biolaw. Born to address the need for a better understanding of reality, bioethics were taken by many as a way to foster mutual understanding amongst different scientific, ideological and political actors (C. Byk, sous la direction de, La bioéthique: un langage pour mieux se comprendre?, Paris: ESKA, 2000). Indeed, new life sciences meant above all the end of medical exclusivity: new actors were more and more involved in the decision-making process, like strangers at the bedside (D. Rothman, Stranger at the Bedside: History of how Law and Bioethics transformed Medical Decision Making, New York: New York Basic, 1991).

The methodological turn boosted by bioethics prevailed in the the northern Atlantic countries. Bioethics came to be considered a highly interdisciplinary and pluralistic approach oriented toward entirely concrete, day-by-day problem solving. Medical humanities developed as a natural consequence. Legal studies and practice also changed accordingly (M. Ventura, Medicina e diritto: la reciproca influenza, in Manuale di medical humanities, a cura di R. Bucci, Roma: Zadigroma, 2006, pp. 159-170).

In other areas, and especially in southern Europe, the methodological side of bioethics and biolaw were overwhelmed by ideological and political debate. In countries like Italy and Spain bioethics failed to be a forum for understanding and solving the problems because of the local political tensions. The dispute on principles and the defence of ideological, political and academic identities prevailed. The symbolic stakes proved much more important than a viable methodology to face real problems. Bioethics and biolaw did not improve health care and did not solve social conflicts over life science in these countries.

Religion played a substantial part in the whole process. Catholic theologians disappointed with Humanae Vitae turned towards bioethics as a territory where more freedom might be found. Evangelical theologians concerned with the lack of dynamism in Protestant ethics looked at bioethics as an opportunity to start something new. The Churches themselves quickly understood that the bioethical debate could represent a great opportunity to legitimate their presence in the public square (M. Ventura, Procréer hors la loi, Strasbourg: Cerdic-publications, 1994). Mediators of the divine Revelation, possessors of the truth of nature, religious leaders and institutions claimed a fundamental role in defining what in contemporary life sciences is acceptable and what is not. A new chapter in the story of the interaction between science and religion was ready to begin.

Religion contributed heavily to the debate and to the methodological turn itself; it also prompted conflicts within and outside the churches. In the internal dimension, the definition of the orthodoxy in matters of bioethics divided religious communities (the conflict within the Catholic Church on assisted reproduction and euthanasia being one of the clearest examples).  Outside of religious communities, many but not all societies and countries experienced a healthy and peaceful process of integration of religious claims in public decision-making. Sometimes the opposition between religiously oriented bioethics and secular oriented bioethics heavily impacted on the real solution of problems and eventually paralysed the secular state (M. Ventura, Laicità e fattore religioso in bioetica, in Bioetica e diritti dell uomo, a cura di L. Chieffi, Torino: Paravia - Bruno Mondadori, 2000, pp. 67-79).

While the debate on the meaning and utility of bioethics still goes on and remains open to all interpretations (J. Baron, Against Bioethics, Cambridge MA: The MIT Press, 2006), the role of religion continues to be crucial, especially as far as law is concerned. The rich landscape of the interactions between biolaw and religion explains why bioethics has become one of the most important and stimulating fields of church and state contemporary studies (M. Ventura, La frontiera biogiuridica del diritto ecclesiastico, Introduzione a F. Botti, L eutanasia in Svizzera, Bologna: Bononia University Press, 2007, pp. VII-XII).

The analysis of the subject matter proposed in this issue of “Bioderecho y Religion” is shaped according to four basic aspects. In order to address the key issues and to give as accurate and comprehensive a picture as possible, contributions have been collected around four thematic focuses: 1) the specific scientific issues likely to involve sensitive legal implications ; 2) the mechanisms through which the law reacts to the scientific issues; 3) the local specificities and understanding of the relationship between biolaw and religion; 4) the different religious specificities and understanding of the relationship between biolaw and religion.

Naturally, it is impossible to treat each of the four thematic groups in a complete and exhaustive way. It seemed preferable, therefore, to select some examples which could enlighten the relevant issue both substantially and methodologically.

Throughout the different contributions, three main aspects emerge. The first aspect is the substantial complexity of the issues, especially in their legal dimension; the second aspect points out how methodological implications, although less explicit than at the beginning of biolegal research, are still significant and stimulating; the third aspect specifically concerns the community of experts in law and religion.  Compared to other domains of research, biolaw has the potential to assess which methodological and conceptual tools still maintain their validity and which grow more and more outdated. The international and interdisciplinary arena of biolaw, its dramatic implications for the everyday life of millions of people, its mingling of good or bad practice and hot ideology, make the interaction between biolaw and religion a privileged field for experimentation and dynamic research likely to refresh the whole spectrum of law and religion studies.


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