Abstract
This paper provides an interpretation of the licensing provisions envisaged under the Human Fertilisation and Embryology Act 1990 as a model for a rule and exemption-based procedural strategy for the adjudication of potential ethical controversies, and it offers an account of the liberal-democratic legitimacy of the procedure’s outcomes as well as of the legal procedure itself. Drawing on a novel articulation of the distinction between exceptions and exemptions, the paper argues that such a rule and exemption mechanism, while not devoid of attractions, is not immune from the criticisms often levied against procedural approaches to the management of pluralism: it either has to fall back on substantive justification in ways that are not helpful when trying to arbitrate a moral controversy, or it appears justificatorily groundless.
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Notes
The term ‘pluralism’ should be understood in an empirical sense here: I shall take it for granted that some level of accommodation of value diversity is desirable or at any rate required in a liberal democratic polity. Naturally the reasons for such a requirement may be quite varied: we may believe in the possibility of identifying reasonable pluralism (Rawls 1993), or we may be committed to value pluralism as a metaethical and/or normative position (Crowder 2002; Galston 2002), or we may simply be motivated by pragmatic considerations (Neal 1997).
As it happens, partly as a result of the application of the licensing procedure discussed here (which led to several licences for the creation of hybrid embryos being granted, after a public consultation), the new and more permissive Human Fertilisation and Embryology Act (2008) has been added to the statutes and replaces the earlier law (the HFEA 2008 was being read in the House of Lords at the time of submission of this article, and it received Royal Assent on 13 November 2008). With regard to the issue of hybrid embryos (now referred to as ‘human admixed embryos’) the new Act is more permissive in the sense that it explicitly recognises their admissibility and thus makes provisions for their storage, supply, etc. However the creation of such embryos is still subject to a licensing procedure. In fact, probably in light of some of the public debate surrounding the licensing procedure as envisaged by the earlier act, the Department of Health recently (March 2009) completed a consultation on regulations to implement the new Act. One of the main themes of the consultation was indeed the licensing procedure. At any rate changes in the law are not directly relevant to this paper’s argument, as the paper is not so much a comment or a case study on the Act, or a policy analysis; rather, as explained above, it is an abstract analysis which only takes its cue from the 1990 Act as a model of a certain strategy for dealing with ethical controversies.
Some basic technical information: Hybrid embryos—sometimes called chimeras—are produced by implanting human DNA into a host animal egg that has had its nucleus removed. The resulting embryos are approximately 99% human and are allowed to grow in vitro to a very early stage (the HFEA 1990 requires all embryos produced for research purposes to be destroyed within fourteen days from their creation). Those embryos are typically used to generate stem cell lines for research purposes. Even though alternative techniques are currently being developed, for quite some time this system has been deemed by scientists the simplest and most economical way of obtaining stem cell lines.
In fact the adjudicatory nature of the process is rather clear from the section of the schedule introducing the list of permissible research goals: ‘A licence under this paragraph cannot authorise any activity unless it appears to the Authority to be necessary or desirable for the purpose of- [list of permissible research goals]’ (Sch. 2, 2,2, my italics). The term ‘appears’ points to the discretionarity of the judgment, and the term ‘desirable’ is indicative of the value-laden nature of the at least some of those judgments. Furthermore, one may argue that the research goals themselves are open to interpretation—but pursuing that line of argument in the required detail would take us too far from our present purposes.
This distinction is not standard, thus it should be considered stipulative. There do not appear to be any standard distinctions covering this ground.
Strictly speaking it is the rule that is open-ended if it allows for genuine exceptions.
The term ‘spirit’ is deplorably vague. Roughly, we can take it to refer to the axiological commitments that underpin a given norm. For example, an axiological commitment to autonomy underpins norms protecting (say) freedom of religion.
The notion of exception discussed here is a rather specific one, characterised within the context of procedural approaches to the management of controversies (so its ‘serviceability’ is relative to the purposes of such approaches). A more general characterisation of the concept would have to take its cue from the sort of exceptions courts grant whilst acknowledging that the behaviour they chose not to punish remains nonetheless illegal, and that the sentence does not change the law. Typical examples would be cases of humanitarian intervention, when unlawful violations of the principle of non-intervention are nonetheless condoned in court because of the exceptionality of the circumstances. On that point, see the discussion of humanitarian intervention in connection with Regina v. Dudley and Stephens (a case where an exception was famously not granted) in Franck (2002, 174ff).
I use the term ‘pure’ here to refer to the idealtyp (in the Weberian sense) of exception and exemption. Pure exceptions to a norm float completely free of the content or the spirit of the norm. Pure exemptions to a norm are entirely contained within a range defined by the norm. Two crude examples: ‘Despite the general and unqualified prohibition against diving in these dangerous waters, your case will be condoned because by diving you saved that young woman’s life’ (pure exception). ‘You must attend unless you can prove that you are ill’ (pure exemption).
Perhaps some proponents of procedural solutions to the management of controversies may argue that if a procedure is viable, and if the contested rule was legitimate in the first place, then the controversy will have been solved in a way that is by definition legitimate. But even if this were the case, a two-level analysis such as the one I am proposing here (one assessing viability and then legitimacy, that is) could still be carried out, if only to find that viability and legitimacy have the same requirements. I shall address such concerns in section “Procedures, Exemptions, and Legitimacy” below.
So, to some extent, the matter seems to depend on which side of the argument has more title to the default position, and is thus entitled to place the burden of proof on the other side. In any case, in that thumbnail sketch of an argument one may recognise some features of the controversy over the role and nature of juridical interpretation legal theorists generally refer to as ‘the Hart-Dworkin debate’ (Shapiro 2007).
Assuming that a viable procedure is available, that is.
As it will become clearer below, this would be neutrality of intent, not of effect.
A further controversial matter, of course, is whether it is at all possible to define or characterise the value of procedural fairness without reference to more substantive values (such as, for example, equality).
Cf the discussion in the other articles in the current special issue.
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Acknowledgements
I should like to acknowledge the support of the EuroEthos Research Project, funded under the European Commission’s 6th Framework Programme. I also thank Gideon Calder, Emanuela Ceva, Maria Paola Ferretti, Steven R. Smith, Federico Zuolo, and two anonymous referees for their helpful comments on various versions of this paper.
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Rossi, E. The Exemption that Confirms the Rule: Reflections on Proceduralism and the UK Hybrid Embryos Controversy. Res Publica 15, 237–250 (2009). https://doi.org/10.1007/s11158-009-9094-2
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DOI: https://doi.org/10.1007/s11158-009-9094-2