Science, Ethics and Civil Law

• Author: Jean-Louis Baudouin
• Position: Justice, Quebec Court of Appeal
• Pages: 423-432

Page 423

This article is reproduced from the 27th John H. Tucker, Jr. Lecture in Civil Law given by the author at the Paul M. Hebert Law Center on March 9, 2000, with minor changes to the text.

Justice, Quebec Court of Appeal.

Mr. Chancellor,

Dear colleagues,

Dear friends,

Let me start by telling you how pleased and deeply honoured I am to have been invited to give the first Tucker Lecture of the twenty first century or, if you prefer, the last lecture of the twentieth century.

I am pleased also to be back here in La Louisiana and more particularly at the L.S.U. Law Center. In my former life as a law professor, I had the distinct pleasure of teaching here for two semesters. This was the time (1969-1970) where the Louisiana revival of its civilian tradition was in full swing. The late Paul M. Hebert who was then the acting dean felt that the Louisiana State Law School (as it was then known) had been entrusted with the unique mission of promoting the teaching, as well as, the development of fundamental research in civil law. With dedicated experts such as the late Joseph Dainow, Robert Pascal, Saul Litvinoff, Thananissis Yiannopoulos, Lee Hargrave and Bill Crawford, to mention a few, the survival and expansion of the civil law tradition was well on the its way.

I have been Hhonoured because during that period, I had the distinct privilege of meeting personally Colonel Tucker. I remember that I was fascinated by his dedication to the Louisiana civil law tradition and the strength of his commitment to it. I can still vividly remember the day when this distinguished gentleman took me to his home for dinner and showed me his magnificent collection of old French "coutumiers." I am particularly very especially honoured tonight to deliver the prestigious lecture that bears his name.

The relationship between law in general, and more particularly civil law, science and bioethics, is both an open and an interesting question. Beyond the traditional interrelation between morality and law, the development of medical sciences has created a new perspective for us lawyers and for the science of law as such. My theme tonight is, of course, full of very controversial issues and I will try to talk more in general and abstract terms, rather than to dwell on precise, yet extremely debatable, issues such as abortion, euthanasia or embryo transplant and farming, to mention only these three. Anyone of these themes could indeed very well be the subject of several hours of analysis and reflection.

It is well known that medical and biological sciences have undergone tremendous, as well as, rapid changes over the last twenty years. The expansion of knowledge and technology has been overwhelming and accelerated. It is said that this expansion is no longer mathematical, but geometrical. It is also believed that particular areas of scientific knowledge have made more progress in the last 10 years than during the entire history of mankind. This is certainly true, for instance, of human genetics.

These changes have had two different kinds of impact. In a number of cases, they have resurrected issues and problems for law and morality that had already been experienced before and to which society had attempted to respond, but problems that are set, nowadays, in an entirely new and different social, legal and ethical context. In other words, the progress of modern science and medicine in these cases did not necessarily raise entirely new issues, but rather reactivated old concerns but although, this time, against a somewhat different cultural and societal background. Take, for instance, the difficult problems arising out of the care of terminally ill patients. In the history of mankind, passive and active euthanasia, as well as, assisted suicide have been the object of countless religious, philosophical, ethical, social, legal and political discussions, in a great number of societies and in a great variety of contexts. The Greek philosophers have abundantly discussed it and, to refer only to modern times, the euthanatic movement in Great Britain between WWI World War I and WWII World War II, the writings of Binding and Hoche in pre-Nazi Germany and, more recently, the position taken in regard to voluntary active euthanasia by well-known jurists and philosophers, such as Glanville Williams, are well-known. It is also interesting to note that for the first time in modern human history, (at least with the exception of Nazi Germany) but this time a democratic country, (The Netherlands), has allowed voluntary active euthanasia and legislated on the subject. But in our modern setting, the factual and analytical context of the issues raised by death and dying and the interruption of medical treatment are substantially different from the context of those issues only 50 years ago. New technologies such as the heart-lung support machines, have forced ethicists and lawyers to face the new reality of cerebral and brain death. The development of organ transplant and their its increasingly higher rate of success with the help of Cyclosporin and other immunosuppressant drugs, has also shed a new light in that respect. The importance question of the moment at which where persons can legally be pronounced dead and their organs taken away for transplant purposes has become crucial. Death is no longer identified with the absence of heart beat and spontaneous breathing, but with the total absence of cerebral activityies. Moreover, the new technology has had, as a consequence, to foster the principle of autonomy of the person and the right to self determination and to refuse treatment.

The refinement of pain-killers and the expansion of terminal care procedures have also created for physicians some the difficult dilemma question of how far they can go without provoking or hastening death, while trying to alleviate pain and thus potentially incurring criminal, as well as, civil liability.

Another example of that first kind of impact is that of AIDS. AIDS is, of course, a recently diagnosed disease. It is,presently unfortunately, both epidemic and terminal. Yet, most, if not all of the ethical and legal problems it raises are well-known and have already been previously examined in a different social context. It is interesting, in that respect, to read the literature of the first quarter of the 20th century, dealing with the transmission of syphilis and tuberculosis which Page 425 were also, at that time, both epidemic and incurable. The right to secrecy and the duty of the physician to reveal to the consort of his patient the risk of contamination were abundantly discussed in that literature, and the maintaining of confidentiality was then the general rule. However, at least in...