Constitution and common law in bioethics.

Abstract

In recent years legal intervention in bioethical matters has increased notably following various paths: court decisions, parliamentary acts, codes of conduct and solemn declarations (i.e. European Bioethics Convention, 1997, or the UNESCO Genome Declaration, 1997). Body and liberty, as a question of fundamental legal rights, are constitutionalized along two paths. The former is vertical (a text created at central level is open to ratification and domestic implementation to finally become the rule in concrete cases). The latter is, above all, horizontal. It is characterized by the existence at world level of a number of centres and institutions, with the judiciary and judge-made law playing a major role. The most important new rights and freedoms in bioethics have been recognized in this ever-changing and troubled environment. The horizontal way has the great advantage of considering the differences as a resource and not as a limit. In the case law on bioethics a sort of jurisprudential model seems to be at work, that goes some way toward a judge-made law at a universal level. Cases such as Cruzan, Bland and Massimo held the fundamental concept of self-determination with surprising similarity. But we don't know if one of them has influenced the others, always supposing that the judges were aware of them. Today's first duty is to raise the consciousness of judges as to how common their problems are and how often their rulings are similar to each other's.