Ethics and the human being (2)

In a reply to my article Good Science, Bad Morals And Entrenchment (August 18), Chief Justice Emeritus Giuseppe Mifsud Bonnici (September 13) says that, "as far as I can see" the Bioethics Committee did not "pass from fact 'is' to moral norm 'ought' and thereby commit what Prof. Wain incorrectly calls the naturalistic fallacy". Well, now I hope he can see better after reading (assuming he has read them) Michael Axiaq's article (October 4) and Joe Friggieri's (October 7).

The former states specifically that this was, in fact, what the committee did do. And, "naturalistic fallacy" is not how I "incorrectly" call it, that is how it is called. Prof. Friggieri, in his article gives an accurate account of the expression's provenience. But let me return to Prof. Mifsud Bonnici.

Citing the recent history of our Constitution and its entrenchment of fundamental human rights, Prof. Mifsud Bonnici says: "Prof. Wain considers that what happened then were 'open attempts to put a block to the freedom of future generations to decide for themselves on their morality and on their way of life'".

Again, this is putting words into my mouth. My article made no reference to any earlier Constitution. What I said, based on what its proponents have declared publicly, was that this present attempt to entrench the abortion laws in the Constitution has that purpose.

Prof. Mifsud Bonnici knows that there is a difference between a founding Constitution for a newly independent state or republic, where the rules of the game are being laid down, and subsequent interference with those rules once they are laid down. The interest of national stability and order, and the protection of rights and freedoms, demands a fundamental declaration of general principle by the people who make a new Constitution. Call that "entrenchment", though I dislike the word. But "the people" changes; today's "people" is not tomorrow's and tomorrow's people should be able to decide for themselves how they want to live and what they want entrenched.

What I oppose, on the grounds that it is undemocratic, is entrenchment that requires a two-third majority to change. I would, on the other hand, support entrenchment that can be changed with a referendum majority of the people. This is a special, extra-parliamentary majority, but it is still simple, not two thirds.

Prof. Mifsud Bonnici's distinction between "new" and "old" (by which he means "pre-1945") democracies, making entrenchment a "salient feature" of the latter, is entirely arbitrary and unhelpful; its purpose is only to address petty barbs at me which I will ignore. "Old" constitutions like the American, for instance, contain entrenched articles. Besides, the post-1945 world has experienced a bewildering range of "new" self-declared democracies from the old western liberal democratic kind to the new kinds that flourished in the Communist world and that one still finds today in the Democratic Republic of Korea. All the latter entrenched their ideologies in their respective constitutions. How did that help their democratic credentials? Did it make them better than the "old" liberal democracies? Why should a dyed-in-the-wool conservative like himself worry that I "pay homage" to the old system, is he now converted to modernism - perhaps, since the 20th century is also "old", to postmodernism?

Prof. Mifsud Bonnici confuses "modern" with "new". In any case entrenchment is not characteristic of a modernist but of a conservative outlook, so he need not fear being out of character. But that's not the only thing he confuses.

The example he fetches of a "modern" democratic Constitution is the German. But modern Germany has a recent (20th century) history of tyranny and genocide to contend with and is hardly typical. What does he make of the British Constitution, the oldest in the world? It is unwritten and, so far as I know, the idea of entrenchment is foreign to it. By his reckoning British democracy is outdated, not a modern democracy at all because it doesn't satisfy his conditions for "new" democracies - which is sheer nonsense.

What makes a state of society democratic is not its Constitution and whether it entrenches or not but the strength of its democratic traditions, culture and values, and institutions. This is why whatever "new" democratic Constitution is made for Iraq, for instance, and whatever principles are entrenched in it, will not make the country a democracy in anything but a formal sense. Entrenchment is a confession of the weakness of one's democratic culture not of its strength.

It will not necessarily protect human rights, nor does lack of entrenchment of such rights render the British any more vulnerable to human rights abuse than Germans or the citizens of any other country that entrenches them. So to reply to his question: no I am not reassured that I am protected from being tortured simply because the Constitution of Malta entrenches my right to humane treatment.

History shows that the entrenchment of human rights in constitutions has rarely prevented states and their police forces from violating them if they are so disposed. Nor do we need to go beyond our own recent history for examples.

Prof. Mifsud Bonnici has doubtless also heard recent local arguments that, entrenched in our Constitution or not, human rights are not absolute, they are subject to the "national interest" or "common good". I wonder how safe I would feel as an asylum seeker in Malta today knowing that my human rights are entrenched in our Constitution! But then it has always been a moot point, as I pointed out earlier, who qualifies as human (like what qualifies as "natural") depending on who defines the term and for what purpose!

The simple lesson of history is that human rights, like democracy, are not rammed down people's throats or respected because they are entrenched in constitutions. Their best guarantee is an enlightened public and recent events have thrown serious doubts on the claim of the Maltese public to qualify as such. The answer to human rights abuse is not entrenchment in constitutions but education and the signs are that those who have the duty to provide it, the various leaders of our society, have manifestly failed to do so. A democratic political culture that punishes people in public office who make the kinds of remarks reported to have been made recently by the GWU president would also help.

Prof. Mifsud Bonnici asks whether I know that human rights are expressions of moral beliefs. Of course, he's trying to be funny! I have written a book on moral philosophy (The Value Crisis) and lecture in ethics at the University of Malta. Besides, he has heard me speak at meetings of the Philosophy Society. He knows that I regard all human rights as expressions of moral beliefs, with no foundation in nature. He also knows that I regard the notion of natural law that he subscribes to as vacuous at best and pernicious at worst.