The genetic foundation of human nature and the legal approach. Some philosophical–legal concerns

Abstract

Since it has become possible to “read the book of life”, different approaches to the universe, revealed by genetic scientific advances, have come into being. On the one hand, the Human Genome Project (HGP) has opened the medical field to new treatments – or at least to the hope of new therapies – through, for instance, gene therapy. On the other hand, developments in genetics have allowed reductionism or genetic essentialism to make its way into the public and institutional perception of genetic advances. This paper will argue that the essentialist approach to genetics is inspired by the constant craving of humans to find, once and for all, those features and determinants that constitute identity: the human nature. I will argue against this trend by testing a particular field in which the concept of human nature could be the source of discrimination and inequalities, that being genetic human nature based law.

Keywords:

• human nature
• discrimination
• genetics
• bioethics
• law
• genetic testing

Introduction

Since it has become possible to read “the book of life” (Kay, 2000), different approaches to the universe, revealed by genetic scientific advances, have come into being. On the one hand, the Human Genome Project (HGP) has opened the medical field up to new treatments – or at least to the hope of new therapies – through, for instance, gene therapy. On the other hand, developments in genetics have allowed reductionism or genetic essentialism to make its way into the public and institutional perception of genetic advances. Even though authors like Nikolas Rose (2007) rightly highlight that the spreading of genetic essentialism in the second half of the nineteenth century cannot be compared with past attempts to build the “perfect” citizen and with him/her the “perfect” community – consider, for instance, the time when national states functioned as guarantors of racial integrity (Foucault, 1997), nonetheless, it is true that genetic essentialism and a reductionist view of human life have provided an excuse to deny access to those who are susceptible to some genetic disorders to health insurance or to the workplace (Salardi, 2010). Although it is widely accepted among experts that genetic essentialism and the corresponding genetic deterministic views of our destiny have long been disavowed (Lewontin, 2005), reductionist perspectives have not only penetrated public debates, generating convictions in that direction, but they have often also concerned institutional spheres for different reasons. Consider, for instance, the impact of the media's approach to genetic advances, which very often and for decades has contributed to reinforcing the view of genetics as the ultimate source of answers to fundamental questions (Annas, 1993; Roche & Annas, 2006) by using a language characterized by short expressions like “a gene for x”, it conveys a message of unavoidability, which has been promptly denounced by institutions like the Nuffield Council on Bioethics (2002). However, beyond the media's influence when presenting scientific advances, there is, in my opinion, a more profound reason for explaining the renewed interest in biological features that are (mis)used with regard to the essentialist approach (Nelkin & Lindee, 1999). This paper will argue, indeed, that the essentialist approach to genetics is inspired by the constant craving of humans to find, once and for all, those features and determinants that constitute the human nature. I will argue against this trend by testing a particular field in which the concept of human nature could be the source of discrimination and inequalities, that being genetic human nature based law. To develop my arguments, I will first provide a definition and then describe the type of discrimination that could be based on the concept of human nature or on some of the determinants of identity referred to it. Second, I will frame the discussion within the realm of scientific advances in genetics. Then I will focus on the features of the concept of human nature, with the aim of understanding if and to what extent these constitute an adequate concept on which to build legal regulations. Finally, I will analyze the current legal trends in regulations concerning genetic testing.

Definition and types of discrimination

In order to understand the likely impact of misuses in genetic advances, especially when they are used to fill the essence of a concept like human nature, it is necessary to take a step back and have a brief look at the topic of discrimination, with particular regard to its definition and typologies.

I would suggest the following definition of discrimination: “illegitimate differences in treatments based on ideological claims, which serve to maintain the privileges of specific groups or individuals”, which could either be a majority or a minority in any given historical period. This definition focuses on features and characteristics of discrimination perpetrated at institutional levels. Indeed, historically, institutional discrimination was supported by political and legal arrangements based on “ideological” claims¹ (Kelsen, 2005, p. 106), which were used to veil or misinterpret reality in order to maintain the privileges of specific groups or individuals. Thus, according to this definition, discrimination is something negative, which can harm individuals, and for this reason, is of negative ethical value and should be avoided.

Nowadays, discrimination based on “ideological” claims is also “illegitimate” in the sense of being “illegal” since it contradicts the content of fundamental rights anchored in legally binding rules at a constitutional level. Consider, for instance, the European Union's Charter of Fundamental Rights, along with the national constitutions of its member states.

Institutions may be shaped by implementing legal rules based on ideological claims centered on: biological features (for instance, genetic make-up), status differences (citizens vs. aliens or the stateless), and sociocultural differences (political, religious, moral convictions, etc.). For the purposes of this paper, I will focus only on ideological claims based on biological features.

Discrimination based on biological features consists of a set of both old (men vs. women, whites vs. blacks) and new categories of opposites (unpatients vs. healthy individuals), as well as “traditional” and new types of discrimination strengthened by advances in scientific sectors like genetics and neuroscience. These types of discrimination identify a “natural” difference as the key determinant of the distinction among individuals (Hall, 2010). This “natural” distinctive key element, which is per se descriptive of the state of a thing without an intrinsic moral value or disvalue, is interpreted according to variable, ideologically connoted criteria² (Ferrajoli, 2007; Foucault, 1997, p. 53), which need “firm” scientific (or allegedly scientific) evidence for their justification (Hoffmann, 2006).

Over time, discrimination based on biological features has been strengthened by new scientific advances, for instance, in genetics (Pàttaro, 2009). Indeed, since it has become possible to identify gene mutations in our genotype through genetic testing, the positive application of these discoveries to the benefit of individuals has run parallel to their abuse for discriminatory purposes (Pàttaro, 2009). Advances in predictive medicine have contributed to creating a “new” class of individuals termed “unpatients”, namely, “neither patients in the usual sense of being under treatment, nor nonpatients, in the sense of being free from medically relevant conditions” (Jonsen, Durfy, Burke, & Motulsky, 1996, p. 623).

This category of individuals have suffered from discrimination with particular regard to access to health insurance policies and to workplaces, especially in the USA in the 1980s. In Europe, the risk of possible genetic discrimination was taken into account from a legal viewpoint earlier than in the USA and this contributed to limiting and restricting cases of genetic discrimination. Indeed, the European Parliament had already adopted, in 1988, a resolution on the ethical and legal problems of genetic engineering (Official Journal, C 96, 17 April 1989, pp. 165–171, Doc. A2-327/88), which, on the one hand, pointed to the potential of genome analysis in bringing about “possible improvements in diagnostics, preventive medicine and therapy”, while, on the other hand, underlining the risk

of creating compulsory eugenic and preventive objectives, of applying genetic analysis for the purposes of social control and the segregation of whole social strata, of selecting embryos and foetuses on the basis of their genetic characteristics alone and of producing fundamental changes in our society

However, the general risk of genetic discrimination cannot be considered completely overcome, and indeed, there have been studies in different countries concerning this phenomenon. Consider, for instance, the Genetic Discrimination Project financed by the Australian Research Council (ARC) 2002–2005.

However, to understand these problems in depth, we must first limit our discussion to the context of advances in modern science and technology. This will be the subject of the next section.

Scientific advances in genetics as the basic premise for the debate on discrimination based on genetic make-up

From the earliest stages of medicine, therapeutic expectations have guided the activity of physicians along with scientific curiosity. With the Hippocratic theory, diagnosis and prognosis played a relevant role, in particular prognosis, that is, the physician's ability to predict the likely outcome of a disease.

In Hippocrates's view, many factors – environmental, psychological, social – ought to be taken into account to understand disease, heal patients, and take preventive measures.

After the “therapeutic revolution” (Bernard, 1994), and the subsequent “biological revolution”, the old teachings of Hippocrates still played a role, but in a new way. Scientific advances occurred over time and the subsequent wide availability of technological devices, biomedical treatments, and drugs deeply changed the course of human life. What were once considered fatal conditions can, in many cases, be easily healed or recovered from today. The “therapeutic revolution” concerned medicine with regard to advances in treatments, clinical therapeutic trials, epidemiology, clinical research, and the prevention of diseases.

The “biological revolution”, which followed later, contributed to giving humankind mastery over reproduction, genetics, and the nervous system (Bernard, 1993, p. 1). From that moment on, prediction became a keyword in modern medicine. Predictive medicine, as part of preventive medicine, created the possibility of defining the probability with which pathological events occur in individuals who do not show clinical signs of a disease.

Moreover, over time, the concept of preventive measures has indeed gained relevance in parallel with scientific advances in different sectors, for instance, in genetics and the neurosciences. As opportunities in these scientific fields expanded, the concept of disease underwent a radical change.

This occurred when early identification of “molecular diseases” (Paulings, Itano, Singer, & Wells, 1949) became a real option in biomedicine, since it provided the power to analyze the microscopic entities of our body, not only to diagnose a disease in its early stages, but to predict its future coming.

Moreover, advances in different fields of genetics have created great expectations with regard to the possibility of intervening to prevent genetic diseases from developing in the future. Consider the HGP, which was welcomed as an event that could have limited, or even eliminated, – in a short period of time – the “natural dependence” of human beings on pathological conditions. Indeed, after its completion in April 2003, which gave humankind the ability to read its complete genetic blueprint, genetic testing boomed.

Genetic testing allows the identification of changes in chromosomes, genes, or proteins. Results from genetic testing help to confirm, or to rule out, a suspected genetic condition, or to predict a person's future chance of developing or passing on a genetic disorder.

Advances in genetics produces what Nikolas Rose (2007) terms “molecularization”, that is, they contributed to changing individuals’ perceptions of themselves. Progresses in biology shaped new “somatic individuals”, which become intelligible at the molecular level, and seem “no longer constrained by the apparent normativity of a natural vital order” (Rose, 2007, p. 6).

To sum up, the great availability of technological devices and the boost in scientific knowledge represent the factual premise for any ethical–legal discussion about attempts to ground human nature on genetic make-up.

The genetic basis of human nature: a definitive solution to the instability of this concept?

Human nature is a fascinating concept with a long history. Since ancient times, philosophical efforts have focused on identifying all of the determinants, features, and components of a biological, emotional, psychological, social, and cultural kind that potentially make up a comprehensive concept of human nature. Thomas Hobbes (2001), for instance, shaped an image of human nature, based on the smallest axioms of the nature of human beings as organisms, and used it as the basis for a philosophical–political theory. The Italian School of Criminology tried to base penal law on the alleged scientific concept of human nature, intended as deviated human nature, whose features and determinants were alternatively engraved in the somatic traits of individuals (Frigessi, Giacanelli, & Mangoni, 1995) or in their social and environmental roots (Ferri, 1929). However, there are recent examples of attempts to base membership to a community on the possession of a given percentage of blood. This was the case, for instance, of the resolution passed in 2000 by the Seminole Nation of Oklahoma: 1/8 Seminole Indian blood was required to be considered a member of the Seminole community (Johnston, 2003).

More historical examples could be cited. However, I would like to focus on particular attempts to base human nature on determinants of identity, that is, genetic make-up. Indeed, since the conclusion of the HGP, there have been trends in private, as well as in public and in institutional spheres, to identify human nature with genetic make-up.

In the private spheres, there are numerous and famous cases of denial of access to health insurance policies and the workplace, especially in the USA, before the Genetic Information Nondiscrimination Act (GINA) which came into force in 2008.

At the institutional level, we can quote examples of the implementation of legal tools to discriminate against individuals on the basis of their genetic make-up: the Seminole Nation of Oklahoma previously cited or the DNA testing required by French Immigration Law³ (only) for family reunification of third country nationals.

The identification of human nature with genetic features is rooted in an essentialist or reductionist conception of what human beings are. Indeed, succinctly put, in this perspective human beings are reduced to their genetic make-up since it is believed that in genes we can find all of the answers that humankind has long been striving for. In other words, in this perspective, genetics is considered as the ultimate level, in which we find not only a descriptive explanation of genetic mechanisms, but also who we are on a deeper philosophical, existential level (Borsellino, 2009; Salardi, 2010, 2012). However, this trend does not take into account that genetic reductionism, as the successor of strict determinism, has been disavowed – as its predecessor has been – from a scientific viewpoint (Lewontin, 2005) and not only from a philosophical perspective (Strawson, 1982).

The genetic foundation of human nature faces, however, the same challenges as all previous attempts to base this concept on biological determinants of identity. First of all, it does not take into account that human beings are moral beings, not only because of their genes, but because “ … A person's identity should not be reduced to genetic characteristics, since it involves complex educational, environmental and personal factors, and emotional, social, spiritual and cultural bonds with others and implies a dimension of freedom”, as it is clearly stated in Article 3 of the International Declaration on Human Genetic Data. Second, also regarding the use of genetic advances to found a comprehensive concept of human nature, difficulties arise due to its semantic instability. Could a genetic foundation to this concept solve the problem? I think not. Indeed, with regard to a genetic-based human nature, the question is which genes should be selected for its basis: those relating to an emphatic, or a mild, or an intelligent human nature?

However, these genetic-based attributes do coexist with other genetic features, which are their opposites, or at least give rise to a very different human being: aggressive, anxious, crafty, etc. Who decides which are good or bad? And according to whose values?

Human nature is an unstable concept and its meaning gains stability only when it is contextualized and defined by the speaker using it. In the absence of which, it is doomed to create misunderstanding. In fact, historically, it is impossible to find a commonly shared definition, both from a scientific and philosophical point of view. And whenever one tries to define it in a comprehensive way, particularly by basing its meaning on the biological aspects of identity when new scientific advances are made in any relevant field, we fall into the trap of a naturalistic fallacy, deriving the “ought to be” from the “is” (Hare, 1952). This is particularly dangerous when the concept is applied as the basis of a legal approach, particularly in an anti-discrimination cause. I will clarify why in the following section.

A genetic human nature based law? Current legal trends in regulations regarding genetic testing

What would be the risks involved in a genetic human nature based law? A society with a genetic human nature based law may run various risks. I will highlight two major difficulties and then test current legal solutions regarding genetic testing, with the aim of showing legal choices in this delicate issue.

The two main risks involved in a genetic human nature based law concern both the types of legal norms and the application of laws as tools for imposing moral or scientific views of social relations between individuals of a given community.

Let us start with types of legal norms. Law, as a system of control and a guide for human behavior, can obtain its purpose, particularly in penal law, by way of two different types of legal norms: on the one hand, through “regulative” rules, which produce an effect by exercising pressure on someone's behavior (indirect control) (Ferrajoli, 1994; Kelsen, 2005); and, on the other hand, through “constitutive” rules, which are directly effective (Carcaterra, 1974).

In penal law, constitutive rules directly punish the offender, almost without taking into consideration his or her behavior. These legal rules provide sanctions with regard to the status of an individual (Ferrajoli, 1994), and not with regard to an illicit act committed. Historically, there have been many cases of legal orders using constitutive rules to punish individuals not for their actions, but for what they are: the punishment of witches in the Middle Ages, the penal sanctions of heretics, the persecution of Jews. Moreover, in modern penal codes, traces are visible in rules pertaining to vagabonds, recidivists, etc.

Constitutive rules are based on the idea that we can define human nature, and according to whether or not one fits in this definition, we can determine whether they are good or bad. Constitutive rules are dangerous because they introduce via law the idea that not all individuals have equal rights. Moreover, making implicit assumptions that some people are doomed to be unequal since they are de facto different, in the sense that they are inferior or bad.

The second risk of a genetic human nature based law concerns the use of law as a tool for imposing one moral or scientific view of human beings, and transforming the Rule of Law from guarantor of fundamental rights, equality, and freedom to an ethical state, which, by placing individuals in superior or inferior categories, imposes only one moral perspective and translates factual differences into legal inequalities. To avoid this risk, the law should never embrace one moral or scientific perspective, otherwise it fails to operate as a framework in which different ethical positions may coexist in a pluralistic society.

If these are the main risks with a genetic human nature based law, what are the current legal trends in regulations for genetic testing?

Genetic testing is regulated at international, European, and national levels. Moreover, to understand how the law has taken on board the many challenges represented by advances in genetics, we should consider these regulations at the different territorial levels as a corpus of rules, which foster, in quite a surprisingly consistent way, values and principles that are in complete contrast to the idea of a human nature based law.

Indeed, from international declarations⁴ to European and national rules (Salardi, 2010), legal rules regarding genetic testing clearly indicate avoiding any ideological use of scientific advances and adopt a definite position regarding the identification of individuals through biological and genetic determinants: legal rules related to genetic testing expressly prohibit, without exception, discriminations based on genetic make-up and unmistakably affirm the equality of rights among individuals.

This is a widespread trend among national legislations on genetic testing. Consider, for instance, the GINA in whose preamble to the Congress makes the following statement:

Deciphering the sequence of the human genome and other advances in genetics open major new opportunities for medical progress. New knowledge about the genetic basis of illness will allow for earlier detection of illnesses, often before symptoms have begun. Genetic testing can allow individuals to take steps to reduce the likelihood that they will contract a particular disorder. New knowledge about genetics may allow for the development of better therapies that are more effective against disease or have fewer side effects than current treatments.

These advances give rise to the potential misuse of genetic information to discriminate in health insurance and employment.

 … 

Therefore Federal legislation establishing a national and uniform basic standard is necessary to fully protect the public from discrimination and allay their concerns about the potential for discrimination, thereby allowing individuals to take advantage of genetic testing, technologies, research, and new therapies. (GINA, 2008)

Many national rules in European countries also follow this trend (Salardi, 2013).

Some brief conclusions

If it is true, therefore, that on the one hand, genetics provides new medical possibilities to promote the well-being of humankind, it should not be denied that, on the other hand, it gives rise to fear of potential manipulation, which, despite being combined with great expectations in the early stages, was not entirely unjustified. Indeed, the legal approach highlights that at a certain point a regulation of the phenomenon was needed together with a strong position on how to interpret advances in genetics, and, in particular, how to apply genetic testing. Law in this field has generally regulated the question by guaranteeing that those with their lives at stake are not discriminated against by their allegedly “defective” human nature. On the contrary, they can count on strong anti-discrimination policies and rules that state that factual differences should not form the basis of social, cultural, and legal relations among individuals.

Notes

1. “Ideology … veils reality either by glorifying it with the intent to conserve and to defend it or by misrepresenting it with the intent to attack, to destroy, and to replace it by another.”

2. This “natural” key element determines “an anthropology of inequality”, in Luigi Ferrajoli's words. Foucault underlines that, at a certain point of human history, the biological element becomes the drive of racist ideologies, which aimed at the elimination, segregation, and normalization of society.

3. French Immigration Law, Loi n. 2007-1631 du 20 novembre 2007 relative à la maîtrise de l'immigration, à l'intégration et à l'asile.

4. For instance, Universal Declaration on Human Genome (1998), International Declaration on Human Genetic Data (2003), and Universal Declaration on Bioethics and Human Rights (2005).