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Moral Argumentation

Moral Questions Concerning External Nature

With this chapter we are entering the second part of ethics. Whereas the theme of the first part was the project of a moral life, the discussion will now turn to the moral arguments involved in establishing social conventions. Such conventions are either laws - in which case they are explicitly binding on every member of society and are sanctionable - or they involve customary behav­ iour. As in the case of laws, we have not included customary behaviour itself in philosophical ethics; but we have included the arguments in which it is problematized, or in which new custom­ ary practices are established. Practical debates are initiated if customary practices have been called into question, or if they prove no longer adequate to new developments, in which case there is a need for regulation . However, not every debate which is supposed to lead to the establishment of new laws or customary practices requires moral arguments. A question or a problem which is in need of regulation should only be considered a moral one if it touches either on our conception of ourselves as human beings or on our society's conception of itself. Many questions can be regulated in a purely pragmatic way. The standard example of such morality-free arrangements are road traffic regulations.

In what follows I shall discuss three examples - one in each section - of moral discourses which have led to new social regula­ tions, or are pushing society towards them. The choice of such examples is somewhat difficult. An ethics is not itself a contribu­ tion to ongoing discourses, but nor should it merely report on

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them. In principle, it should make clear what such discourses involve, and prepare the reader to take part in them, or to take part more effectively. This means that one should be as concrete as possible, but this concreteness can have the result that what is said quite quickly goes out of date. I shall therefore choose problems on which the debate has been continuing for some time and has already found partial solutions by establishing new con­ ventions, but which deal with matters of such intrinsic importance that further discussion can be expected. These questions concern, firstly, external nature, secondly, the nature that we ourselves are, and thirdly, problems concerning the way in which society deals with foreigners.

The need for regulation regarding external nature

Let us begin with terminology: in using the term external nature I am following customary linguistic usage, although it can be expected that impending new social conventions concerning nature will change this form of conceptualization. For it will emerge that what is to be progressively overcome is the idea that the nature which we ourselves are not is external to us. In the case of what earlier was called internal nature the terminology has already been changed, so that I speak of 'the nature which we ourselves are'. For in this case it is clear that one is not talking about something internal, but about the body.

That there is a need for regulation concerning external nature is so self-evident that it requires no further demonstration. The problems which give rise to this need for regulation are generally called environmental problems. They concern the destruction of the environment in the sense of the disturbance or abolition of natural cycles, and the dissipation of substances and energy, especially poisonous substances such as heavy metals, or those which make the soil infertile, such as salts. They also concern the use and scarcity of resources and, finally, the fact that, in industrial society, external nature, in its parts and in its essence, is being turned into components of industrial machinery, and that, in scientific society, there is an increasing use of nature, and above all of test animals, in the acquisition of knowledge. These facts call for new social conventions for various reasons. The main reason is that through environmental destruction man is endangering the foundations of his own life, is poisoning the media and means of

Moral Argumentation I I 7

life and is generally increasing the risk of illness. In addition, however, the increasingly comprehensive nature of industrial pro­ duction and the more and more radical and extensive encroach­ ment of science on nature have made it clear that violence is being done to basic values of a kind which did not require explication, or even explicit formulation as fundamental values, earlier, i.e. a hundred or even fifty years ago.

The need for regulation which arises from these problems is already being met in numerous ways. Indeed, it can even be said that there is a surfeit of regulations - that is, of laws, decrees, resolutions, directives, standards, and so on. This is explained by the fact that up to now the necessary fundamental rethinking, especially with regard to the relation of man or society to nature, has not properly begun, so that attempts are made to find an individual solution for each individual problem. Moreover, the existing regulations have not been systematized. For example, given the plethora of laws relating to nature, it is necessary as a general principle to create a separate environmental statute book, comparable to the civil code or the penal code.

To illustrate the point, I shall list some of the problems. Nature protection probably has the longest tradition. In this context one should mention the preservation of the diversity of species and valuable ecotopes, and the protection of landscape. Many problems result from industrial production methods, and particularly from by-products and production residues, that is, industrial waste and emissions, and from the products themselves, such as CFC gases, which can have a nature-destroying effect. On the other hand, one must also consider consumer habits, or the economic organization of consumption, that is, methods of distribution and transporta­ tion, and above all packaging and waste. A particularly grave problem of industrial residues concerns radioactive waste from the so-called peaceful use of atomic energy. Finally, the problems concern resources, and their economical and rational use.

Another complex of problems is the relationship of people to animals. This relationship calls for regulations in the mass farming of animals, in the use of animals in science and, finally, with regard to the impending design of genetically modified animal and plant species.

As a last general problem, I should like to mention the treatment of nature as property. This problem has been discussed for a long time under the heading of common land or private property,l but is now gaining new topicality in connection with animal protection and the threatened patenting of genetically manipulated species.

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This very unsystematic listing of the problems we have with nature, with its life forms and its parts - problems which call for social regulation - inclines one to ask whether all these regulatory questions are really moral problems. Are not many of them capable of being solved technically or purely pragmatically or, in a nar­ rower sense, conventionally?

Why are these questions moral questions?

The ban on CFCs, for example, is not a moral question. Once it is known that CFCs act as a catalyst in a process which destroys the ozone layer in the upper atmosphere, it is clear that the production and use of these substances must be limited and, if necessary, prohibited. For the ozone layer acts as an absorber of dangerous ultraviolet radiation emitted by the sun, which can cause cancer in humans and animals and has a number of other harmful effects. This situation simply requires a practical solution. Given sufficient knowledge of the processes concerned, there are compelling rea­ sons not to emit any further CFCs into the atmosphere. It is more of a moral question that agencies have kept quiet about this factual knowledge, which has existed for a long time, or have not paid attention to it. But on this issue neither our conception of what society is to be nor our self-understanding as human beings is at stake. What is fundamentally involved is the political question of enforceability in face of certain lobbies. Nor are most regulations concerning emissions levels - for example, in the context of emis­ sions-control legislation - moral questions. Of course, morally dubious behaviour can be involved in disputes about threshold values for emissions, but in principle we are concerned here only with scientific knowledge and a process of political negotiation and enforcement.

The situation is different whenever nature is invoked in dis­ courses on the introduction of new conventions. As we have seen, nature is a fundamental ethical value, or a tapas in moral discourse. Nature is a value of the modern age, and one through which the self-criticism of modernity has been articulated. This is why it has taken on such importance at the present time, when the project of modernity is in crisis. Whenever one appeals to nature or natural­ ness in discourse, one is arguing morally, simply because nature is a moral value, and especially because our social understanding of ourselves and our conception of ourselves as human beings, in so

Moral Argumentation 1 19

far as both our society and we ourselves are modern, are called into question by the appeal to this tapas.

I have already mentioned that it cannot be predicted in advance precisely what will form part of our fundamental moral concep­ tions. That they include nature is, of course, well known, but it is only the inclusion of this tapas in discourses that will make fully clear what the moral evaluation of nature really entails. Initially - in the eighteenth century - the homage paid to nature was essen­ tially aesthetic. Nature was recognized as beautiful and sublime, and was experienced as such through an entirely different mode of apprehension to that which had become dominant through natural science - that is, through a sensuous mode of experience. From this aesthetic admiration of nature there was - explicitly in Kant2 - a transition to a moral evaluation. Nature was esteemed for generating order from within itself - something that human beings had to achieve by a moral effort. This role of nature as a moral example is to be found in Rousseau, in the concept of the natural state, and Rousseau's concept was itself derived from a tradition going back to ancient Greek Sophism. However, this moral valuation of nature was by no means a consensus; on the contrary, nature could be seen - as in Hobbes - as harsh and violent, so that the transition to civilization was justified as an overcoming of nature. The admiration of nature for its technoiogtj, that is, for the artistry it displayed, above all, in the inner function­ ing of organisms, was, however, universal in the eighteenth cen­ tury. Against the background of this tradition, nature became a moral authority. But it had not yet become an object of moral behaviour or of moral demands. That only happened with Scho­ penhauer in the nineteenth century and with Albert Schweitzer in the twentieth. In his concept of reverence for life Schweitzer summarized, or heightened still further, the existing aesthetic valuation, moral respect and technical admiration for nature.3 With his principle 'I am life that wants to live amid life that wants to live' he introduces a development in which nature is no longer only a moral tapas, but in which the question of nature itself becomes a moral question. In what follows, this will be clarified in relation to two examples from recent history and the present. In the first example I shall discuss the new German animal protection law and, more generally, the question of our relationship to animals, as far as it calls for social regulation. It will prove to be an example of a moral question in that it impinges on our under­ standing of ourselves as human beings. The second example will concern a problem which is moral in that it affects our society's

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understanding of itself. This has become manifest in the adoption of nature as a good to be safeguarded in Article 20a of the German Basic Law. More generally, it will concern the question of a revision of our conception of production as appropriation of nature.

Questions affecting our conception of the human being

How can a need for regulation of the relationship between man and animal actually come into being? For we are not concerned here with a threatening situation caused by the specific behaviour of human beings, which can therefore be curtailed or ended - as in the case of the hole in the ozone layer. With regard to the tormenting of animals, it is not we humans who are damaged, but animals. The need for regulation through social debate does not arise directly from the damage, therefore, but from the anger it causes. This situation is somewhat paradoxical, in that something which primarily concerns non-human nature, that is, animals, becomes relevant to practical discourse through a human phenom­ enon, the indignation to which it gives rise. This situation suggests that animal protection is a genuinely moral question. In fact, it can be observed that in their indignation human beings take on a certain function of advocates for animals, of stewardship. The fundamental principle of the animal protection law will turn out to be a comprehensive formulation of this stewardship.

Indignation is only expressed, of course, when something in the relationship of human to animal has become intrusive, that is, has deviated from what was previously customary. And this indig­ nation will only give rise to politically effective lobbies such as animal protection societies or associations for the prevention of animal experiments, etc., if the intrusive behaviour in relation to animals has fractured society, has split it into those who act and those who observe. For those who act it is, of course, their activity itself which is customary, as the customary practice of their indus­ try, for example. It is of interest here to note what first triggered the formation of a public animal protection movement. It was the treatment of cab horses. The treatment of horses in agricultural service and in the military sphere was generally known and accepted. In addition, the horse had long enjoyed an especially respected position in Germany, probably connected to the comra­ dely relationship which had existed between the knight and his

Moral Argumentation 12 1

horse. Because of the general respect for horses the eating of horse meat was frowned upon. Now, in the postal service there had undoubtedly been a ruthless exploitation of horses over a long period. But the people who observed it were travellers, so that they could always register it as an occasional case that had happened in a place they had already left. That changed when the horse-drawn cab became a ubiquitous means of transport in cities. Now the exploitation of horses was carried on before a public audience which, in addition, was actually in the role of observer - that is, it had nothing to do either with agriculture or with military service. It was this special constellation which first drew attention to the exploitation of horses and led to a split in society. This background was reflected in the first Animal Protection Law, §360, item 13 of the Penal Code of 1871, in which the tormenting and brutal mistreatment of animals were made a punishable offence if they were causing public outrage.4

Further causes of indignation resulted from the extensive use of animals as experimental objects in science, and from the advancing industrialization of agriculture. These two causes were primarily responsible for the German animal protection movement and animal protection legislation, up to and including the last amend­ ment of 1998. The extensive use of animals in science - or perhaps one ought to say the misuse of animals in science - resulted, on the one hand, from the 'scientification' of medicine since the nineteenth century, and especially from the emergence of modern physiology, and, on the other, through progress in pharmacology. With regard to pharmacology it must be added that what is at stake is not just the development of effective chemo-pharmaceuti­ cals, but, above all, their testing. The increasing stringency of approval regulations for new drugs necessitates more and more extensive tests for toxicity, side-effects, long-term consequences, and so on. The progress of experimental physiology and pharma­ cology contains the paradox that while these sciences are really concerned with knowledge of the human organism and the devel­ opment and testing of drugs for the human body, animals are used in order to preserve this body. The attrition suffered by animals for the sake of research seems to cause less concern the more distantly the animals are related to man, but it can only yield relevant knowledge if the animals used are closely related to man.S Here, the moral problem can be seen to be breaking through again. What happens to these animals will not leave the average human being cold.

The other problem was the industrialization of the landscape. I

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said that the keeping and using of animals in agriculture was recognized as customary. However, industrialization has breached customary practice so severely that it is difficult to talk of agricul­ ture here at all. In the case of modern battery chicken farms and veal fattening stalls one really ought to speak of factories for egg and veal production, the means of production simply being animals.

These two more recent causes of outrage over the behaviour of humans towards animals should be judged somewhat differently to the case of the cab horse. For in the case of cab horses the behaviour concerned was customary for the industry concerned, that of cab drivers. Socially, this occupation is on the threshold of modernity. But biomedical and pharmacological research and the mass farming of animals are entirely modern phenomena. That is to say that we are dealing here with systems of actions which operate independently of the personal attitudes of the people involved, and are dependent on certain professional capabilities which the people working within these systems exercise at certain times. For example, the training of a scientific doctor or a biomed­ ical experimenter contains an explicit training in desensitization.6 This, however, does not need to embrace the whole person, but can be effective sector ally, that is, within the relevant professional setting.

The social factions we are dealing with in these cases are, on the one hand, groups of people who become angry and commit themselves through personal concern, and, on the other, insti­ tutions such as the pharmaceuticals industry or science, which defend their interests and independence. Nevertheless, it can be assumed that, by and large, the representatives of these lobbies or institutions are capable of acknowledging general principles and of reacting with human concern. The main objective of the animal protection law is to regulate the professional manner of dealing with animals and bind it to the social consensus concerning the relationship of man to animals. The discourse which led to the formulation and finally the passing of the law was, essentially, an explication and rational justification of the indignation which had been provoked by the modern manner of dealing with animals.

In describing the moral background of this discourse, it is best to start from the result, the principle of the Animal Protection Law7 as it is formulated in §1:

The objective of this law is to protect the life and well-being of animals on the basis of man's responsibility to animals as fellow-

Moral Argumentation 1 23

creatures. No one may cause pain, suffering or damage to an animal without reasonable grounds. [trans. E.J.]

That no one should cause pain, suffering or damage to an animal without reasonable grounds was also contained in the version of 1933. What is new is the reference to the moral back­ ground, in the formulation: 'on the basis of man's responsibility to animals as fellow-creatures'. This formulation has very wide impli­ cations, and indicates that the relationship to animals has indeed now been understood as a serious question, that is, one which affects our human conception of ourselves. The formulation also contains a statement of a sameness and a difference which exist between man and animal. First, the sameness. Humans and ani­ mals are fellow creatures. At first sight, one might take this to express a special regard for animals, in that the formulation equates them with humans. But that is not the decisive point, and, in a certain sense, it is not even the case. At any rate, the law does not state that the animal is something resembling humans; rather, man is referred to as a creature. This might well be the first time that this has happened in the whole of German legislation, includ­ ing the Basic Law. It is true that the Basic Law speaks of the life of man and of freedom from bodily injury, and the Declaration of Human Rights speaks of birth and the 'family of man'; neverthe­ less, up to now the human being's natural being has not been a theme of law. To the extent that a self-conception of the human being is expressed in laws and fundamental rights, it is articulated essentially through terms such as 'person', 'reason', 'freedom' and 'conscience'. On the basis of this conception of the human being, nature - even the nature that humans themselves are - is for human beings essentially a tool, an organon, a means, a resource­ that is, it is understood instrumentally. The challenge faced in arriving at a new consensus regarding the relationship of humans to animals therefore necessarily called into question the humans' conception of themselves, and was thus a genuinely moral ques­ tion. The result is that, in the animal protection law, a self­ conception of humans is inscribed for the first time within the terms of our legal community, according to which the natural being of human beings is a part of their essence, and according to which they are essentially creatures. For this reason they form, together with animals, the community of creatures.

The term fellow creature binds this new self-conception of man to the Christian tradition. This tradition, unlike the Greek, has actu­ ally always recognized a sameness of man and animal in their

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creatureliness. The Christian concept of nature, Creation, was not understood, like the Greek term physis or the Latin natura, in opposition to that which was made by humans, i.e. culture, society, technology, and so on. It was, therefore, not unperceptive to invoke this tradition in the formulation 'fellow creature' in the fundamen­ tal clause of the animal protection law; and in the context of a society which, through its history, forms part of the so-called Christian West, it is probably understandable. Nevertheless, this use of the phrase does give rise to a problem. In the context of a state which conceives itself in non-religious terms and in a society which, in principle, is secularized, the reference to a particular religious image of the world is not very useful, since laws are supposed to be neutral in terms of the world-view they reflect, and are binding on members of other religions or on unbelievers. It may be supposed that Jews and Moslems will not have difficulty with the formulation, since they share with Christianity the con­ ception of the world as creation. It is likely to be different for Buddhists. Although they will undoubtedly agree with the content of the provisions of the animal protection law, they will do so for entirely different reasons. Animals are not to be protected because they are the creatures of a god, like ourselves. It is significant that one of the intellectual fathers of the reformulation of the animal protection law plays down the religious content of the wording, noting that creation and creature could also be understood in the sense that we, like animals, are products of creative nature.S On the other hand, the religious terminology9 was not inserted in the wording of the law without a definite intention, since it postulated the sacredness or inviolability of living creatures. If people and animals are creatures of God, then they should not be queried or tampered with, which for our time means that they should not be modified genetically. As we have seen, such an appeal to inviola­ bility and holiness is not too remote from the Basic Law. But whether the meaning of creature just mentioned has consequences will only be seen from the application of the law, and from new laws and decrees relating to genetic engineering.

The likeness between human beings and animals is a fundamen­ tal tapas of animal protection ethics and, more generally, of bioeth­ ical discourse. Usually, however, it is formulated more abstractly and without reference to a religious world-view. Albert Schweit­ zer's principle, quoted earlier, that 'I am life that wants to live, amid life that wants to live', is likely to form the background of most formulations. The link between the bioethical or animal­ ethical standpoint and the new self-conception of humans is found

Moral Argumentation 1 25

here, too. The likeness which Schweitzer stresses lies in the fact that humans, too, are living organisms. It is true that this was recognized in the traditional definition of the animal rationale, but there animality was understood as something which, precisely, was not essential to humans. This shift in humans' conception of themselves is seen very clearly by Paul W. Taylor in his important book Respect for Nature. A Theon) of Environmental Ethics.10 He argues that we humans are members of the terrestrial community of life, and goes on: 'This does not entail a denial of one's personhood. Rather, it is a way of understanding one's true self to include one's biological nature as well as one's personhood' (p. 44). The conclusion to be drawn from what he calls his biocentric world-view is that there is no demonstrable superiority of man over the animal. In this respect, too, the traditional concept of the human being is called into question: 'It is this belief, so deeply and pervasively ingrained in our cultural traditions, that is brought into question and finally denied' (p. 129). The consequence of this for Taylor is that the basic moral attitude towards animals is not responsibility but respect, seen as analogous to the respect which persons pay to each other.

Meyer-Abich tries to derive the principle of likeness or equality from the theory of origin. Like animals, we are an outcome of evolution and are therefore related to them in principle.ll This approach enables him to link equality to inequality, or with . degrees of equality. This may be regarded as an advantage, as compared to the rigidity of the equality in Schweitzer and Taylor, which is not dependent on any specific attributes. Meyer-Abich is able to base his account on a ranking of creatures in terms of their proximity to humans, which is well established both scientifically and in everyday experience. This modified concept of equality is pragmatically useful, in addition, because, despite its basically moral attitude towards animals, it allows a good deal of latitude, depending on the rank of the animal concerned. The only trouble­ some thing is that this concept seeks to make what is morally permitted towards an animal dependent on intricate anatomical and physiological knowledge based on evolutionary theoryP It would be better, as happens in the principal clause of the Animal Protection Law, to postulate a fundamental inequality between human and animal in addition to the equality, but an inequality on a quite different plane.

To formulate this inequality between human being and animal, the Animal Protection Law uses the concept of responsibility. This term is, admittedly, an everyday expression and is undoubtedly

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often misused. But as it appears in the Animal Protection Law it is surely permissible to give it a specific meaning - the one going back to Hans Jonas's analysis of the concept of responsibility.13 Jonas is a leading exponent of bioethics, and his theories are also a background influence on the re-formulation of the Animal Protec­ tion Law. According to Jonas's analysis, the concept of responsi­ bility contains a fundamental asymmetry. Responsibility is not exercised between equals; one is responsible for someone who is dependent, who is in need of help. Jonas's basic model for the concept of responsibility is the parent-child relationship. The parents are responsible for the child because it is helpless without them and depends on their care. The parents' responsibility for the child consists in the fact that they are challenged in a certain way by the neediness of the child. The parents are responsible for the child, but the child is not responsible for the parents - at least, not as long as it is a child.

It is important that this concept of responsibility is based on a relationship of dependence, and not on a specific difference of qualities, skills, resources, etc. In individual cases such a difference will in fact exist, but the concept of responsibility does not relate to it. That is important for the human-animal relationship as well. For it is extremely unfortunate, and counterproductive for the Animal Protection Law, to try to found responsibility on some­ thing of which humans have more than animals, such as reason or consciousness. Apart from the fact that there is no scientific basis for denying animals consciousness, such a conception of the ine­ quality between human being and animal would cause one to fall back on the old conception of humanity according to which humans are human to the extent that they differ from animals, by the possession of culture, consciousness and reason. In that case, moreover, the concept of responsibility for animals would take on an almost timeless, cosmological meaning. Some authors do in fact attempt to endow the concept with such a meaning, by interpreting the commandment in Genesis, 'Bring forth abundantly in the earth', to mean that humans have received from God a fundamen­ tal responsibility for creation as a whole. It is true that, through genetic engineering, humanity has, or has assumed, a responsi­ bility for the future evolution of the earth. But this example makes it clear that humanity'S responsibility for animals, or perhaps for evolution as a whole, is in no way ahistorical, but is a consequence of the actual position of power attained by humanity in our century.

Recognition of this actual inequality between human being and

Moral Argumentation 1 27

animal also underlies the Animal Protection Law. At the present state of technical civilization there are no longer any animals that man cannot control or that could pose a serious threat to him. That was not always the case historically, so that over long periods even of civilized history there was reason for humans to regard animals as enemies or competitors. Just because they had themselves evolved from the animal kingdom it was necessary at that time to conceive of themselves in opposition to animals and to see their essence to lie in not being animals. This conception of the human being has become historically obsolete precisely because humans have become in principle master of all animals.14 In our century, therefore, humans' conception of themselves is, as a rule, no longer articulated in terms of their difference from animals. It is essential to note this fundamental power of humans over animals because the struggle with nature, and human self-assertion against nature, still continues to govern their existence. Humanity has not mas­ tered the classical natural forces of the four elements - storms, earthquakes, volcanic eruptions and floods - nor has it gained control of micro-organisms. Such organisms are not called animals in the sense used in the Animal Protection Law. Of the organisms which are generally called animals, the rat, at most, is still a genuine enemy to man. It can compete with him in numbers and in the ability to adapt and resist. In the concept of the responsibility of humanity for animals, the Animal Protection Law recognizes the real power relationships and would like to tie human behav­ iour to these relationships - i.e. to make them patriarchal. Responsibility, therefore, means a duty of care for dependants.

This concept of responsibility is also distinguished by its binding character. If, for example, one wanted to base the inequality between man and animal on the fact that man possesses conscious­ ness while the animal does not, it woulq. not necessarily follow that man needed to take care of animals. But as he has power over animals, he is implicated in their existence from the outset. Finally, this view has the advantage of honesty. The concept of responsi­ bility for animals implicitly acknowledges that man uses them for his purposes. It is therefore unnecessary to posit the relationship of man and animal in principle as one between equals, as is done in utopian ethics - and then to be obliged laboriously to legitimize - by establishing rules of conflict and defining exception - the fact that in individual cases man actually does use animals for his purposes and even kills them. The Animal Protection Law regu­ lates the relations of man to animals as those towards dependants.

This takes us to a further point in the moral debate on animal

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protection, the question whether it is possible to grant animals explicit rights. Various authors have pointed out that it is entirely feasible to allocate rights to beings who cannot themselves perceive those rights. They argue that this is the case with children and the mentally handicapped, for example.15 Meyer-Abich has put for­ ward the thesis that it is time to make peace with nature and form a legal community with it. Michel Serres has followed this up with his idea of the natural contract.16 Now, one must certainly agree with Meyer-Abich that the war with animals is over. But just because animals are in principle subject to humans, we are by no means absolved from the struggle with nature. As far as the animals are concerned, Meyer-Abich would like to see the alloca­ tion of rights to animals as part of the Enlightenment programme of emancipation: after the emancipation of slaves, Jews, children and women comes the emancipation of animals,17 The analogy is flawed, since the power relationships from which the slaves, Jews, children and women were released were laid down by society. The legal equality given to them was, at the same time, the abolition of these power relationships. If one wanted to extend the analogy to animals in this respect, then equality would have to mean that human physical power over them has to be abolished and they have to be given a status like that of cattle in India, which can roam freely. But if the real power relationships are maintained, the granting of rights really amounts to the demand for care, which is already recognized in principle in the Animal Protection Law. Admittedly, the Law is capable of extension in this respect, in that up to now the concept of protection has been understood essen­ tially negatively, i.e. it has the objective of limiting the violence of human beings while imposing hardly any duties of care on them.

If one wanted to install animals themselves as bearers of rights, or establish the legal community advocated by Meyer-Abich, that would nullify what at present can be counted as progress in man's understanding of himself: the fact that his being nature has been incorporated in this understanding. For if one turns animals into legal subjects, they will become socialized, which is to say that they will be assimilated into precisely the form of life which humanity has developed in contradistinction to nature, and against his own natural state.

Moral Argumentation 1 2 9

SOciety's understanding of itself

With this last formulation I have invoked, admittedly, a conception of society which, especially in view of the problems we have with nature, needs to be revised. This takes us to the other example by which I should like to show that the conventions that now need to be negotiated in order to regulate our relationship to nature give rise to genuinely moral problems: these problems are of a kind which causes us to call our current understanding of society into question. As an example, I would mention the new Article 20a of the Basic Law of the Federal Republic of Germany.

The state also has a responsibility to protect the natural foundations of life for future generations, within the framework of the constitu­ tional order, through legislation and the executive power and the jurisdiction, according to law and justice. [trans. B.J.]

By this article the protection of nature is elevated to a fundamen­ tal law, and nature is included among the safeguarded goods enshrined in the Basic Law. To be sure, nature appears here in a limited perspective, a perspective usually called anthropocentric; that is, it is nature in so far as it is the foundation of human life. In other constitutions, such as that of the Free State of Bavaria, nature is set beside cultural monuments - that is, its originality and aesthetic value are also addressed. The crucial thing in our context is that nature protection appears in the Basic Law as a sub-clause of the description of the state in which we live, and, in particular, is formulated as a duty of the state. This in fact represents a fundamental modification of our understanding of society qua state. The duties of the state up to now have been to guarantee external and internal security (the security state), to organize and guarantee the legal system (the constitutional state), to organize and promote education (the cultural state), to provide social secur­ ity for citizens (the social state) and, finally, to manage the econ­ omy (the social market economy). The duty of protecting the natural foundations of life is a fundamental modification of the above. For, as can be seen, all the previous duties of the state were intra-social, that is, they aimed at regulating and safeguarding the relationships of human beings among themselves. That anything like society and the state were present within nature and were based on nature has up to now played no part in society's

I 30 Moral Argumentation

conception of itself, as far as this is articulated in the Basic Law. One could speak here, with Gunter Altner, of an oblivion of nature.1S

However, this obliviousness towards nature, both in our social self-awareness and in our awareness of ourselves as human beings, is not merely a matter of forgetting; it is a programme. Since the Enlightenment, society has been understood as an organization of human beings created to overcome their dependence on nature and to emancipate themselves from their natural state. In this, nature was quite clearly seen, on one hand, as a basis of life which was unproblematic ally available for use and, on the other, as a still-preponderant power from which man had every reason to set himself apart. Through the experience of the dialectic of enlight­ enment or, more generally, of the ambivalence of progress, we have learned that the process of emancipation from nature has placed us only in still greater dependence on nature. Admittedly, the threat emanating from nature today, from the greenhouse effect, the hole in the ozone layer, the erosion and increasing infertility of soils and, finally, the poisoning of the means of life, does nQt arise from the original nature but from the second nature, anthropogenic nature. From this perspective one would also have to criticize the formulation of Article 20a of the Basic Law. In view of the present condition of nature the formulation is already obsolete, in that what is at stake is no longer just the preservation but the regaining and reproduction of the natural foundations of life. Admittedly, to postulate that as a duty of the state would be to ask too much of the state.19 The reproduction must be a task for society as a whole, in the sense that while it is a duty of the state it is also a task which must be performed by every social agency, and implicitly must be solved in every production process.20

To include nature protection in the catalogue of duties of the state would therefore be only to make a start in incorporating nature in our social understanding of ourselves. Since the terms 'protection' and 'preservation' now fail entirely to match the real demands of the condition of nature which defines our historical situation, and even the term 'development'21 conveys them only indistinctly and euphemistically, our conception of ourselves as an industrial society must be revised, together with our understand­ ing of social work as the appropriation of nature for the creation of products. Some years ago I called for the relationship of production and reproduction to be re-thought by analogy to traditional agri­ culture.22 In traditional agriculture the reproduction of nature, i.e. of the field, always enjoyed equal rights alongside the production of goods, i.e. food. Indeed, it can be said that the relationship of

Moral Argumentation 13 1

reproduction to production was the reverse of our current under­ standing of it, in that the real producer was nature while the farmer's activity was concerned with the reproduction of nature. Or one might say that production was a joint outcome of the reproductive work on nature. The present concept of industrial labour is the exact opposite of this. According to Marx labour was understood as the appropriation and processing of nature, on the model of craft work. The productive activity - the forming of material provided by nature - was allocated essentially to the worker. It is no wonder that in the course of capitalism and industrialism nature's part in this production process was over­ looked, and in particular, no practical steps were taken to ensure that nature, on which this process actually depended, was repro­ duced. This led to the well-known environmental damage. The Kassel social ecologist Hans Immler has therefore demanded, quite logically, that 'nature be granted its economic rights'23 by being recognized as an essential producer within the industrial process. 'We are the products, nature is the productivity' (p.76). This encapsulates in an extreme form the change to our social under­ standing of ourselves which is prefigured in Article 20a of the Basic Law.

It has emerged, therefore, that moral problems do actually arise, and moral argumentation is rightly used, in the discourses which have led to new conventions in the field of animal and nature protection, and will lead to others in future. What is called for by animal and nature protection cannot be delivered without a fun­ damental revision of our conception of ourselves as human beings and of our society.

Moral Questions Concerning the Nature We Ourselves Are

Most of the moral questions which are publicly debated arise in relation to the nature which we ourselves are, that is, with regard to our bodies and our manner of dealing with life and death. It is in this area that nature takes on the greatest importance as a fundamental value of modernity, but from which critical reflection on modernity also originates. For in this area our understanding of ourselves as human beings is questioned in principle by the extraordinary increase in the possibilities of manipulation which

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have occurred over the last century. The question which arises is: how much are we still prepared to accept as given - that is, as nature - in the human being. The problems are so diverse and the public discussion so wide-ranging that it is impossible to do justice to all aspects of the moral problems relating to the nature which we ourselves are. It will therefore be necessary to proceed paradig­ matically in what follows, using examples to reveal the central problems and the possible strategies for argumentation. All the same, I shall start by giving an overview of the various complexes of problems.

As the first complex I would mention reproduction medicine - the whole field from the fertilization of the human ovum to birth. Scientific knowledge and technical possibilities have increased so enormously in this area that there is hardly a process which cannot in principle be understood, controlled and performed technically. A close intertwinement of diagnostic and manipulative methods is found to exist. The human ovum and sperm cell can be isolated and artificial fertilization carried out - in vitro fertilization. The extra-uterine cultivation of such a 'fruit' - one can hardly speak of a 'fruit of the womb' any longer - can now be carried forward up to a certain stage, but given the advance of technical developments, it is, of course, foreseeable that production of a human being outside the uterus will be entirely feasible. This opens up, on the one hand, a whole mass of opportunities for research on the human embryo and, on the other, the prospect of diagnosing its predispositions, i.e. carrying out a prenatal analysis of the human genome, with the further prospect of making suitable changes and selections. In particular, surrogate motherhood can be realized in practice, meaning the implantation of an egg fertilized outside the uterus into the uterus of another woman and the growing of the embryo by the latter. Of course, prenatal diagnostics, especially genetic diagnostics, are possible without isolating the egg and sperm cells, by removing cells of the developing embryo from the uterus. From this follows the potential practice of prenatal selec­ tion, which is already adopted today to avoid hereditary diseases by induced abortion, and is used in some countries for gender selection. In India, for example, only eighty girls are born for every hundred boys. The capacity for manipulation in this area also extends to the control and management of the birth process itself. The possibility of continuous monitoring of the process and its control by medication and surgery gave rise to the idea of the programmed birth, i.e. a birth meeting a certain ideal standard, or birth by non-indicated Caesarean section. In the United States, for

Moral Argumentation 1 33

example, one-quarter of all children are already 'brought into the world' by Caesarean section.

The ethical problems which present themselves here can be referred to under the headings of abortion, eugenics, gender selec­ tion and surrogate motherhood. But as they call into question the naturalness of the human origin itself, a large number of other topoi crystallize around them.

The next complex to be discussed is gene therapy. Progress in molecular biology and genetic engineering will sooner or later lead to a situation in which a complete register of the human genome is available. This means that it will be possible to identlfy the individual components of the human genotype and to know the phenotypic characteristics or procedural functions for which each of them is responsible. Furthermore, it will be possible to dissect, change and reconstruct at will the carrier of hereditary character­ istics, DNA. This, of course, opens up for discussion and possible change the constitution of species including humans, as well as the identity of the individual, to the extent that it resides in the uniqueness of his genetic endowment. Moreover, it will be possible to cure genetic defects, and thus hereditary diseases and, finally, to promote the development of individual and species in a particu­ lar direction through improvement and selection.

Moral questions already arise, of course, in the research required for these developments, in the investigations into life generally and into human life and human embryos in particular. They also arise with interventions in the basic natural make-up, the genetic constitution, of the human being. Here, a distinction must be made between an intervention in the germ line, changes which are passed on to descendants, and an intervention in individual body cells.

The moral questions which arise here can be brought together under the headings of personal identity, species identity, self­ determination, responsibility for future generations and, finally, eugenics.

Eugenics in turn forms a complex of its own. The problems of human breeding, which have already been posed in connection with traditional animal breeding - the selection of individuals for repro­ duction and the elimination of unwanted offspring - take on new and greater importance in view of the possibility of genetic manip­ ulation and intervention in the reproductive process.

The fourth complex I would mention is that of organ transplants. Progress in surgical and immunosuppression techniques are lead­ ing us towards a situation in which practically every organ or

134 Moral Argumentation

part of the human body can be replaced. This, of course, funda­ mentally changes the relationship of human beings to their own bodies and to bodily identity. But many other morally relevant problems are bound up with this - with regard to organ replace­ ment by artificial devices or by animal organs, for example, or the permissibility of organ removal or, conversely, the duty to make the organs of one's own body available to others. The question arises as to when a person is to be pronounced dead; whether it is permitted to keep him or her vegetally alive after brain death to conserve organs; whether it is permitted to remove organs after death without agreement while alive. In addition, there is the question of a trade in organs, and of the distribution of usable organs for transplants.

As the fifth complex I should like to summarize all the problems connected with human death. Here the technical possibilities of extending life have been so far developed that the question arises whether their application to the individual can still be regarded as desirable, and whether death in the context of medical apparatus is worthy of a human being. With regard to organ transplantation the point at issue is at what time a person can be considered actually dead, and whether the demand for the inviolability of the body extends to the cadaver. Finally, there is the problem of euthanasia, of the facilitated death in cases when individuals find life unendurable, or, if they can no longer make themselves under­ stood, whether their lives must be regarded as unendurable in the judgement of doctors or family members.

This sketch of the moral problems which arise in relation to the nature which we ourselves are has not yet been differentiated with regard to the two main branches of ethics; that is, it has not taken account of the difference between the project of a moral life and public moral discourse. Many of the moral questions relating to the nature which we ourselves are must be solved existentially, through the choice and practice of a certain life project. The solutions they entail cannot be generalized, even though they require support from the consensus and the solidarity of people close to the individual concerned. In this section, however, I want to concentrate on the questions which arise in public moral dis­ course because they call for a consensus on social regulations. For this reason, the first question to be answered is why there is any need for regulation in the sphere of the nature we ourselves are, since there have always been regulations for the social manner of dealing with the human body, with life and death - regulations in the form of medical professional ethics, on the one hand, and

Moral Argumentation 135

existing law, on the other. Why do some of these existing regula­ tions appear inappropriate or inadequate today?

Essentially, there are three answers to this question. Professional medical ethics, institutionalized for so long in the Hippocratic oath,24 has proved its worth historically. These ethics have been so successful because they represented not only the individual moral­ ity of particular doctors but a guild ethics, in that the medical profession ensured their observance. But precisely in this respect they have failed in recent times, notably in the Third Reich, so that self-regulation by the medical profession can no longer be regarded as sufficient in all cases. On the other hand, however, those same events have caused a loss of confidence in legal or state regulation, so that what is needed today is to strengthen both the controls on the state and the possibilities of free self-determination.

Apart from the historical problems concerning medical pro­ fessional ethics, however, these ethics have also been called into question by the increasing technical capabilities of medicine. In view of the pharmacological and technical possibilities of prolong­ ing life, the fundamental obligation to take measures to preserve life has become questionable. Just because of these measures, together with the growing importance attached to human self­ determination - here, that of the patient - the question arises whether the general ban on euthanasia contained in the Hippo­ cratic oath ought to be maintained. These problems have already led to reformulations of the self-imposed obligations of doctors.

The main reason why new social regulations will be needed for our way of dealing with the nature which we ourselves are is that scientific and technical progress has actually given rise to new situations in which the human scope for action has been signifi­ cantly widened, in particular as a result of gene and transplant technology. These developments put at issue the existing consen­ sus as to what a human being is and what is worthy of a human being, as well as the basic principles of our social co-existence. They impinge partly on the safeguarded goods recognized in the fundamental and human rights, and partly challenge us to define new public goods which need to be safeguarded. Naturally, this needs to be demonstrated with reference to particular cases.

The third area in which there is a need for public regulation is that of research. The new technical methods of dealing medically with the nature we ourselves are arise from, or make necessary, research on the human being, and especially research on human cells and embryos. Such investigations, can, of course, threaten human identity and dignity, and, in some cases, the integrity of

136 Moral Argumentation

the human species. On the other hand, they are protected in principle by the fundamental modern value of freedom of research which is central to our conception of what society is. We are dealing here with a conflict of fundamental rights.

Finally, there is one area which does not call for an extension of social regulation, but rather a reduction. As this represents a special case in relation to the points discussed so far, I should like to deal with it first. It is the problem of abortion, or termination of pregnancy.

Abortion

The debate on §218 of the German Penal Code, which makes abortion a punishable offence, has stirred up the most extensive and dramatic public controversy of the recent past. Apart from many pragmatic and demographic arguments, explicitly moral arguments have been advanced. They are moral in our understand­ ing of the term, since they touch on basic moral conceptions of our culture and on our understanding of society. In going so far as to demand the actual abolition of §218, some of these demands have concerned the legitimacy of state regulations and state intervention in the realm of natural reproduction. But even when they did not go so far, the point at issue has always been a relaxation of an existing social regulation.

The first thing to be clarified, therefore, is what this regulation actually amounts to. The simplest answer is given by its placing in the penal code: abortion is punishable. Moreover, the position of this paragraph in the penal code, directly following murder, man­ slaughter and infanticide, makes it clear that it concerns the protection by criminal law of human life. But that is not quite correct, or at least, not quite adequate. On the one hand, awareness of the protection of unborn life as a basic moral theme has only been awakened in the first place by the discussion about §218.25 Yet its formulation is itself an extension of the basic prohibition on killing, in that it applies to human beings; as we shall see, the question whether and at what time the undeveloped embryo can be referred to as a human being should be left open. On the other hand, however, the placing of this law in the context of the protection of life is inadequate in that, as can be seen from its origin in the Reich Penal Code of 1871, this law forms part of the authoritarian regulation of the whole area of sexual morality or morals in the

Moral Argumentation 137

narrower sense.26 At that time adultery was still a punishable offence, as were sexual relations between cousins, sexual practices involving animals, homosexuality and the dissemination of por­ nographic writings. The repeal of all these penal laws signifies a fundamental change in our social conception of ourselves, which can be summed up briefly as the dismantling of the authoritarian state. Today, we no longer regard it as a function of the state to supervise the observance of morality in the narrower sense. How­ ever, this development has remained incomplete, since the state supervision of individual morality has been retained in form of the compulsory consultation which is a prerequisite for non­ criminal abortion. On the other hand, this development has made it possible to isolate and elaborate the theme of the protection of unborn life. And it has been strengthened by the need to protect embryos from the interference of scientific research and from genetic manipulation.

The principle that the termination of pregnancy is a punishable offence has been maintained up to now. Any permission to termi­ nate pregnancy is to be seen as an exception. The conditions for making exceptions fall into two main groups, determined by length of pregnancy and by medical or other indications. With regard to length of pregnancy, termination within a specific period is not punishable; with regard to indications, it is not punishable if certain indications for termination are present. Here, a special distinction is made between medicat embryopathk criminological and emergency indications. Originally, in the fifth Penal Code Reform Law of 1974, the length-of-pregnancy criterion had been established as pragmatically the simplest; the indications criterion was enforced later by a ruling of the Federal Constitutional Court. A particular historical circumstance which still obstructs the debate today is the fact that the period-of-pregnancy criterion had been established in the German Democratic Republic by a law of 1972. Today, a kind of mixture of the time criterion and the indications criterion is operated, with a clear preponderance of the latter. Thus, termination of pregnancy on grounds of indications is not an offence if it takes place within a certain period. It must be noted, however, that no right to terminate pregnancy exists and that, in a ruling of 1993, the Federal Constitutional Court did not even permit a termination of pregnancy under certain conditions to be termed not unlawful.

This last fact concerning the legal situation makes it clear that we are dealing here with an eminently moral problem, a question of our social understanding of ourselves. This is shown, for

138 Moral Argumentation

example, by a comparison with the legal situation in the United States. There, termination of pregnancy, at least within a certain period, is a right covered by the 'right of privacy'.27 The arguments of the German women's movement, put forward, admittedly, under the somewhat unappealing slogan 'My belly belongs to me', have not led to a social consensus in Germany. To express it differently: it has not been possible to establish the moral topos of self-determination widely enough to cover a right of parents or of a woman to decide whether she wants to be pregnant or to bring a child into the world. But that was precisely the fundamental maxim of the women who organized themselves in the struggle over §218. I quote the spokesperson of Aktion §21 8 at the hearing of the German Bundestag's special committee on reform of the penal code in 1972, Barbara Nirumand. She demanded that it be assumed that 'motherhood and fatherhood must be based on the free decision of the individual, and should not be enforced by the State'. She also noted that it was unrealistic, when reforming the prohibition on abortion, 'not to proceed from the assumption that women are no longer willing to submit to state-enforced birth'.28 With this formulation Nirumand expressed the reason why the reform of §218 had become a compelling need. Women were actually asserting in huge numbers the right of self-determination demanded by Barbara Nirumand. The number of illegal abortions at that time was estimated at 500,000 -2,000,000 per annum. This means that §218 had been subverted in practice - the necessary social consensus had been withdrawn. The maintenance of §218 in force had the further result, of course, that the women concerned were largely dependent on unqualified assistance with abortion, or had their pregnancies terminated abroad.

In our context, which concerns the moral argumentation used in the debate over §218, we can make the following observations at this point: firstly, the moral topos of the protection of unborn life has been articulated; and secondly, according to our Basic Law there is no right to privacy or to self-determination. It is true that Article 2 of the Basic Law guarantees the free development of the personality; it is true that there are certain protected areas of privacy such as freedom of opinion, freedom of faith and the inviolability of domicile. But that does not mean that a general right of self­ determination has been recognized, in face of which the prohibi­ tion of abortion would have to be legitimized in certain cases as a restriction of this right. On the contrary, one is obliged to note a general tendency to control step by step by legislation what might be called privacy or the scope for free self-determination. In the

Moral Argumentation 139

case of abortion, however, this is not just a tendency but an historic fact: whenever an act of conception has taken place, the existence of a foetus is no longer a private matter.

Self-determination is a moral topos which undoubtedly means more than the free development of the personality. The free development of the personality is a concept more closely related to education, and could, at most, call for an additional field of application for the realization of the personality. Self-determination, by contrast, artic­ ulates an independence from tutelage and 'leading by the nose', it implies a freely projected life and independence of judgement and decision in particular situations. For this reason self-determination is less a humanistic term than a topos of emancipation and of liberation movements in general. In the Declaration of Human Rights the concept appears as the right of peoples to self-determi­ nation. The abolition of §218 was a goal relating to self-determina­ tion in the struggle of women for emancipation and equal rights.

The establishment of the topos of the protection of unborn life was, in a sense, easier, as is was introduced, on the one hand, to legitimize a social consensus already canonized, that is, §218, and, on the other, because it was effectively assisted by other threats to human life from science and technology. Nevertheless, the legiti­ mizing of this topos, and thus the retrospective justification of §218, were still difficult, since to legitimize human life from the moment of its conception, i.e. before one could speak of a sentient being, before it was endowed with interest and could be addressed as a person, and long before birth, with which it first becomes an organically independent entity in the world - to legitimize this proved a difficult task. In the analysis of the legal philosopher Norbert Hoerster, such legitimization is really only possible if the value to be protected is not tied to some empirical quality of the developing organism which may be present at this or that stage, but to a transcendental attribute, namely its likeness to God. He invokes the joint declaration of the Council of Evangelical Churches in Germany and of the German Conference of Bishops of 1989 in asserting that 'each human individual, when it comes into being, is endowed by God with an immortal soul and is thus made in His likeness'.29

Leaving aside the question whether this assertion is theologi­ cally tenable, it is certainly a moral topos, since it concerns the self­ understanding of the human being and undoubtedly forms part of the background of the moral culture which gave rise to §218. The question is only whether this context is still an appropriate basis for our social understanding of ourselves. The fundamentally

140 Moral Argumentation

secular and lay character of our society and our state argue against this. It is, no doubt, especially significant that this idea was put forward precisely by a Catholic moral theologian in the debate over §218. I quote Professor Anselm Hertz, OP:

The theory concerning the sout predicated on a specific world-view, would be rejected in the juridical sphere with the argument that conceptions based on world-views are without legal relevance in a pluralistic society. Only a general consensus on the intrinsic value of human life can decide on the need to protect nascent life, thereby making it a value to be safeguarded and thus a legal good. In this case nascent human life would have to be included within the protection of legal goods, as it would be illogical to seek to protect human life but not nascent human life.3D

This states clearly that we are concerned here with society's understanding of itself: we live in a secular and pluralist society. For this reason social regulations cannot be legitimized by world­ views held only by certain religious sections of society. Instead of doing that, the theologian just quoted tries to invoke a different basis for consensus, that of reason, by using the catchword 'illogical'.

Still more important is the fact that in his argumentation he sets aside the historical basis of §218 which was mentioned earlier - the unity of law and morality. Here, he invokes St Thomas Aquinas:

St Thomas Aquinas deals with the question whether it is the task of human, i.e. positive law to prohibit all human wrongdoing and place it under threat of punishment. He answers in the negative: only serious human wrongdoing deserves punishment. He justifies this with two considerations: firstly, only wrongdoing which causes damage to others should be penalized, since without this prohibition human society could not survive. Murder and theft are mentioned as examples. Secondly, only wrongdoing from which the majority is able to abstain should be punishable.31

Against this background, the theologian quoted could actually argue for the abolition of §218. At any rate, with St Thomas Aquinas he formulates an extremely modern, or rather, a current conception of state and society, according to which the institution­ alized, i.e. legal order of social life does indeed have a moral foundation, but does not use it to assert morality. This brings us back to the beginning of our investigation. With the principle of

Moral Argumentation 1 4 1

the general criminality of abortion, §218 perpetuates the authoritar­ ian model of the state.

Genetic engineering

Genetic research and engineering are a characteristic example of the way in which social regulations can become necessary because possibilities of human action have outstripped the capacity of the existing set of customary practices, laws and more general moral ideas to cope with them. That genetic research and engineering pose moral questions when they concern the human genome is self-evident: the integrity of both the individual person and the human species is at stake. Ethical discussion of research on human beings and on the use of possible genetic engineering techniques began at an early stage - early enough in this case - before the specific techniques were really successful and marketable. Gunther Anders's thesis that human expertise has run far ahead of moral development does not apply in this case. On the contrary, a large number of self-constraints on doctors and researchers already exist, as well as legal regulations.32 In Germany, for example, there is a law protecting the embryo; a ban on genetic code therapy has been written into the Swiss constitution, and a similar regulation is contained in the Austrian law on reproductive medicine.33 All these legal provisions rule out any intervention in genetic material which could have an effect on subsequent generations. Further­ more, a UNESCO declaration on bioethics and a bioethical conven­ tion of the Council of Europe are currently under discussion.34 All these regulations and legal resolutions are largely driven by the anticipation of possible dangers. Nevertheless, they also contain the first signs of a new basic moral consensus with regard to the nature we ourselves are. It is therefore worthwhile to explore the implications of these early signs, particularly as they have not yet taken on any fixed form and could be undermined by successes of genetic engineering. This can be seen in a prominently placed formulation in the preamble of the draft of the UNESCO declar­ ation on bioethics. It states that the declaration has come into being in recognition of the fact that 'research on the human genome and the resulting applications open up vast prospects for progress in improving the health of individuals and of humankind as a whole'.

These hopes in human progress through science and technology - positively naive35 in face of our experiences with the project of

142 Moral Argumentation

modernity - give grounds to fear that despite regional and medi­ cal-professional restraint with regard to the human genome, some­ where development in genetic engineering will be carried forward with all possible brutality. In the long term, this situation could lead to a fragmentation of the human species. It is therefore all the more important to agree on what we wish to understand by being human.

I should like to point out the most important ethical aspects of this question with reference to three central problems: firstly, germ­ line gene therapy; secondly, the possibilities of eugenics through genetic engineering, and thirdly, the problems arising from the introduction of genetic mapping or a genetic register for personal and social life.

At present there is agreement that genetic engineering methods can be used for illnesses caused by genetic factors, as long as they involve somatic therapy and do not influence the genetic germ­ line. A somatic therapy is one which is applied only to the cells or stem cells of the affected organ of an adult person. It is compared to chemotherapy or transplant therapy and in Germany is held to be safeguarded by the law governing the manufacture and pre­ scription of medicines. Germ-line gene therapy, by contrast is morally problematic and is actually prohibited. It would intervene in the DNA of the stem cells before or immediately after fertiliza­ tion, with the result that the change produced would be hereditary. That germ-line gene therapy is so widely, indeed almost univer­ sally, proscribed seems at first sight paradoxical. For if one wants to make an impact on hereditary illnesses, then surely it is desir­ able to eliminate the responsible genetic defect permanently. How­ ever, the rejection of this therapy is understandable in view of the mass of counter-arguments and problems. There are numerous pragmatic considerations, such as the fact that to develop the necessary techniques research on embryos would be needed, that experiments with this technology could actually cause genetic defects, and, finally, that this whole direction of research would inaugurate a genetic eugenics. The last argument could turn out to be non-pragmatk i.e. an argument of principle. I shall come back to that. It is all the more important to consider the categoricat or, as I call them, the moral arguments, just because it may well be that the present consensus which rejects germ-line gene therapy is based mainly on pragmatic considerations.

In moral argumentation important new moral topoi are now emerging, which point towards a new human self-understanding and give new content to the concepts of personal integrity and

Moral Argumentation 1 43

human dignity. These are the topoi of the essentially natal and natural character of human origin. These topoi were probably first developed in the report of the commission of enquiry on 'Oppor­ tunities and risks of genetic engineering' of 1987. They have special and far-reaching implications in a number of ways. For example, to legitimize embryo research and germ-line gene manipulation it is often argued that these are done before any person who could be a bearer of human dignity has come into being. Against this, by introducing the topoi of the 'natal' and 'natural' character of origin, the concept of human beings is so formulated that their prov­ enance from nature, and thus the provenance of the person from nature, and therefore the person's facticity and contingency, are an integral part of this concept. That early manipulation of the heri­ table material could impair the self-understanding, the self-respect and therefore the dignity of the person who develops later has been very aptly expressed by Hermann Schmid. In his report on Gentherapie aus juristiseher Sieht (Gene therapy from a legal perspec­ tive), he writes: 'Children ought not to exist as the products of their parents and their doctors. All should have the possibility of understanding themselves and their essence as an expression of a fate which lies outside the human sphere - or is created by God - and not as the project and the more or less successful experiment of other people' (p. 142). This attempt to incorporate the natural origin of human beings in their dignity is supplemented by an endeavour to establish a right to individuality and imperfection. Underlying this is an awareness not only that individuality is threatened by the possible technology of cloning, but that it is already called into question by genetic manipulation in relation to a norm. The linking of the right of individuality to a right of imperfection is, no doubt, one of the most fundamental protests made against the project of modernity under the banner of nature. For the fact that humanity has become its own project, and the improvement of the human being its programme, is one of the four main tendencies of the whole project of modernity.36 I quote from the 'Benda Report', in which these topoi were probably articulated for the first time:

Both his unique individuality and his imperfection have always been part of the essence of the human being. To measure humans against an allegedly correct norm and to manipulate them geneti­ cally to match this norm would be to contradict the image of the human being in the Basic Law and to violate human dignity in the deepest possible way.37

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The observation that the acceptance of one's own imperfection, and indeed, a right of imperfection, are an intrinsic part of human dignity and self-respect may be one of the most significant moral advances made in the current debate on gene therapy. But how little this topos has been accepted up to now can be seen from objections to the prohibition of germ-line gene therapy put forward by Hermann Schmid. He maintains, for example, that 'far from violating human dignity, gene therapy, by restoring health, would make it possible in the first place'. Furthermore, one should bear in mind 'that grave but avoidable illness cannot be seen as consti­ tutive of the personal identity of a human being'.38

This argument founders on a problem to which Schmid himself draws attention - the difficulty of deciding to what the concept of human dignity refers: to the individual or to the species. For the individual human being, dignity is not established by eliminating a genetic defect, since he or she did not exist before the genetic manipulation was carried out. On the other hand, if he or she does exist, then a grave illness is indeed constitutive of the identity of a human being. On this question the moral philosopher Christoph Rehmann-Sutter, who specializes in genetic ethics and opposes a concept of health based on the ideal of perfection, remarks aptly: 'Is not true health rather a strength, a capability? An ability to deal with imperfection, and that means with mourning, suffering and death?'39 For the self-understanding and self-respect of individual human beings it is undoubtedly of extreme importance whether or not they must see themselves as a product of manipulation. It is even decisive for the self-understanding of each individual human being whether the human genome is regarded as inviolable or is made available for manipulation. For in the latter case, even if no manipulation has taken place in an individual case, the human being would have to regard himself or herself as in principle an artefact. On this point I quote Christoph Rehmann-Sutter:

Germ-line gene therapy involves crossing a boundary beyond which lies the specific technical manipulation of the human genotype. This boundary is extremely significant, not so much because I believe this intervention to be forbidden in principle for us humans, but because crossing it changes something quite fundamental in the relationship we humans adopt to our own imperfection and to the imperfection of others. The mere fact that we influence the structure of the human genome at a certain point deprives it of the character of a natural disposition and gives it that of an artefact . . . But it then has the status of an artificial product not only at the p oint where

Moral Argumentation 1 45

changes have actually been made, but also where none have been made. For not to make changes is also a decision which henceforth must be attributed to human beings.4o

This leads on to the second area of problems, which I have mentioned under the general heading of genetic eugenics. These explicitly concern the question of improving human beings under­ stood in the sense of the human species. At present there is undoubtedly no universal consensus on this question, as the preamble to the UNESCO declaration on bioethics has already shown. This lack of consensus became explicitly obvious when the topic of which eugenic practices were to be banned was dropped from the UNESCO Declaration in the last stage before its adoption by the General Conference of November 1997. Why, it might be argued, should one not want to improve humankind genetically? Is not the desire for perfection actually self-evident? Does not wanting something always mean wanting something better? hl face of such arguments it is hardly enough to point out that one would not know in which respects humankind was to be perfected, or whether an improvement in one respect - in long-term memory or intelligence, for example - really was a step forward.

Nevertheless, the UNESCO declaration does introduce a new moral topos which might provide support for a ban on genetic eugenics. Article 1 of the Declaration concludes by stating that 'the human genome . . . is the heritage of humanity'.

This concept is certainly still very indefinite, but because other things have already been declared to be part of the common heritage of humankind, it does imply certain statements. For example, the seabed, the moon, together with books, works of art and historical monuments in general, have been declared part of the human heritage, and likewise all cultures in their diversity and as a totality. Such statements mean that a good declared to belong to the human heritage may not be particularized, that is, may not be appropriated by individual groups or states. It must in principle be available to all. We have here, therefore, a kind of return to the idea of common land, but on the plane of humanity. What might this idea imply with regard to the human genetic material and its possible manipulation? I believe that it implies that products of the genetic manipulation of humans may not be patented, as has already been done for animals and threatens by analogy to be done for humans. Further, this idea is likely to imply that each human being or each human group may not regard its genetic material as its property, but must feel itself to be a component of

1 46 Moral Argumentation

humankind - as is actually the case through the ramifications of kinship. From this it would follow, at least, that each genetic manipulation of the germ-line would require a practically univer­ sal legitimation. It would be quite out of the question to carry out improvements according to particular desiderata.

However, these considerations show implicitly how weak this level of opposition is in face of the idea of improving humankind. By contrast, the historical argument against eugenics is strong. The Europe-wide ban on germ line gene therapy is no doubt crucially affected by this argument. In the 1989 guidelines of the German medical profession on gene therapy any positive intervention with regard to genetic material is ruled out. The historical reason for the rejection of eugenics lies in the experience of the so-called Third Reich. In National-Socialist Germany the idea of a scientific eugenics, which had already come into being, was brought together with a racist anthropology.41 It would be an understate­ ment to argue today that the National Socialists misused scientific eugenics. Certainly, that is also the case, in the sense that what they regarded as unfit to live was eradicated in the name of eugenics. The danger of such misuse would in itself justify a ban on eugenic measures. But that could hardly be called a moral justification. Such a justification would spring, rather, from the reality of the link between eugenics and racism. The so-called Third Reich itself expounded this link, and its possibility seems unavoidable. It consists in the fact that the question as to what constitutes a good human being is answered from the perspective of a particular group. This would run deeply counter to our basic understanding of society with regard both to the equality of human beings and to the fundamental pluralism of society.

We have here an example of a case in which the historical context fundamentally determines the moral discourse, at least for us. We would call into question our historical understanding of ourselves if we did not take account of experiences from our past. Equally, the argument has shown that these experiences are gener­ alizable in terms of their consequences. It is interesting to note that an historical argument relevant to us plays a part in the American debate on euthanasia. The American professor of ethics, Tom L. Beauchamp, for example, writes:

It therefore seems sensible to discard at the outset any such distinc­ tion [between justified and unjustified euthanasia], to prevent the inevitable slide into a situation devoid of principles. With regard to the historical context, it should be pointed out that precisely this has

Moral Argumentation 1 4 7

happened in the darker phases of human history - including the period of the Nazi regime, when euthanasia was first practised with the best intentions in the case of very seriously handicapped non­ Jewish Germans, and the programme was gradually extended to all persons classified as harmful to the race.42

I come, finally, to the topic which I mentioned under the heading of gene analysis, genetic mapping and genetic registration. The possibility of a more-or-Iess complete genetic analysis of the individual harbours many dangers which necessitate social regu­ lations. For example, the privacy of a person is threatened by the possible use of genetic information on that person, and presents a danger of discrimination - in the labour market, for example. Moreover, a person's self-understanding cannot be untouched by the fact that he 'knows the truth about himself' genetically. It is therefore highly significant that the UNESCO declaration contains the following passage: 'Everyone has a right to respect for their dignity and for their rights regardless of their genetic character­ istics. That dignity makes it imperative not to reduce individuals to their genetic characteristics and to respect their uniqueness and diversity' (Article 2). One might, to an extent, welcome the recog­ nition that the radical individuality of each human being - which actually is only postulated - also has its fundamentum in re, in that each person is indeed a unique entity according to his or her genetic material. However, this knowledge does, of course, carry the danger that the individuality of a human being might be reduced to this very fundament. An early form of this can be seen in the use of genetic fingerprinting in crime detection. Here, the dignity of the human being actually has to be protected against its natural substrate. A crucial aspect of human self-understanding lies in not allowing oneself to be reduced to one's genetic identity but - to mention the alternatives - to regard identity as something achieved throughout life, a biographical product.

To achieve this, it might even be necessary to close one's eyes to one's own genetic dispositions. For it is only too easy - as classical tragedies teach us - for an oracle to take control of a biography. In his book Mensch nach Mafl (Humans made to measure) Wolfgang van den Daele even talks of a right of ignorance.43 As we shall see in a moment, such a right has been adopted in the Council of Europe's convention on bioethics. However, whether or not one wants to make use of that right forms part of the project of a moral existence.

For social discourse on the admissibility of genetic analysis and

148 Moral Argumentation

the possible use of such data in social life, however, the danger of discrimination must be considered. If such methods were to be permitted at all, then a decision not to submit oneself to genetic examination could lead to negative discrimination - for example, in job applications. It is therefore to be welcomed that the right to preserve the private sphere with regard to genetic information is mentioned in the Council of Europe's convention on bioethics.

Article 10 (Private life and right to information): Everyone has the right to respect for private life in relation to information about his or her health. Everyone is entitled to know any information collected about his or her health. However, the wishes of individuals not to be so informed shall be observed. In exceptional cases, restrictions may be placed by law on the exercise of the rights contained in the preceding paragraph in the interests of the patient.

The next paragraph is explicitly directed against discrimination:

Article 11 (Non-discrimination) : Any form of discrimination against a person on grounds of his or her genetic heritage is prohibited.

What really follows from this stipulation is that genetic analysis for any other than therapeutic purposes should not be performed at all, and that its results may only be used in the therapeutic context.

This brings to an end the account of the second area in which moral questions arise with regard to the nature we ourselves are. A discussion of prosthetic technologies and transplant possibilities would yield analogous results. Moral questions arise in all these areas because what is to be regarded as nature in us humans, and therefore what our being a part of nature actually means for our understanding of ourselves as humans, is made a matter for debate and possible modification. It is emerging that the very possibility of its technical manipulation is making the nature we ourselves are into a central moral tapas.

Moral Problems in Deal ing with Foreigners

There is hardly a single area of social behaviour of which the regulation more profoundly determines the kind of society we live in than the way in which we deal with foreigners. The reason is

Moral Argumentation 1 49

that this behaviour is directly dependent on the definition of belonging and not-belonging, on how this distinction is made and on the mediation between the groups thus separated. Just as my conception of the other and my relationship to others define my own understanding of myself, our social understanding of our­ selves is crucially shaped by our way of perceiving foreigners and our relationship to them. Questions about the regulation or our behaviour towards foreigners are therefore serious questions, and thus moral ones.

In Germany, the discourse on foreignness and our relationship to foreigners has been shaped, on the one hand, by the historical perspective - the racial policies of the so-called Third Reich, the expulsion and, finally, the annihilation of Jews and gypsies - and, on the other, by the present situation. In Germany today the relationship to foreigners is no longer, or not only, an external relationship, but an internal one. The German population includes about seven million foreigners - roughly 10 per cent. They are referred to as 'aliens', although for the most part they, and often their parents, were born in Germany and in most cases have lived in Germany for decades. On one hand, the high proportion of aliens in the German population is maintained artificially, since it is made extraordinarily difficult for them to obtain citizenship, while, on the other, it is continuously reproduced by the arrival of more and more foreigners, primarily asylum-seekers - about 100,000 annually. This gives rise to two main topics for the public debate on how to deal with foreigners: first, the controversy over citizenship and secondly, the right of asylum. These are debates in which explicit regulation - laws and rights - are at issue. However, they are often carried on in a climate of hostility to foreigners and of racism, and this gives us cause to ask about our customary behaviour towards foreigners in a more comprehensive sense. This will lead us back, at the end of the book, to the question of customary behaviour in general. Even though all public moral discourses are concerned with customary behaviour, it is especially clear in this case that there is a striking lack of customary behav­ iour with regard to foreigners, or that what is customary is urgently in need of change. There appears to exist a need for society to make up lost ground in learning how to behave towards foreigners, without which there is hardly any prospect of reaching satisfactory solutions in the political debate about legal regulations.

150 Moral Argumentation

The right of citizenship

The main reason for the large proportion of members of our society who are not citizens in the full sense (8.9 per cent in 1997) is the high hurdle placed in the way of naturalization. In addition, hostility to foreigners and cultural intolerance help to ensure that the foreigners in the German Federal Republic depend strongly on support from their compatriots, cut themselves off in ghetto-like communities and, as a reaction to their hostile environment, often do not want to be naturalized.

The German law of citizenship does not really fit a modem state, in that it attributes citizenship but makes it practically impossible to acquire it;44 it is a lex sanguinis and not a lex solis, which means in effect that one becomes a German citizen by virtue of German blood, that is, by descent. Admittedly, since 1 January 2000 it has also been possible to obtain German citizenship through having been born in Germany.45 The preconditions are that one parent has had his or her legal domicile in the Federal Republic of Germany for at least eight years and has a right of residence or has held an unlimited residence permit for the last three years. However, this first step towards a lex solis is highly ambivalent, since the children concerned can also obtain the nationality of their parents on the basis of their parents' nationality. For this reason §29 of the Law of Citizenship withdraws the concession to the children of foreign parents by requiring them to decide on one nationality by the age of twenty-three. If they fail to do so, German citizenship is automatically forfeited. For this reason the legal expert Helmut Rittstieg describes this kind of citizenship as 'dis­ solvently conditional' (auflosend bedingt) and observes critically that 'Germans with lesser rights in relation to Germans by descent' are being created (Deutsches Auslanderrecht) . This form of natural acqui­ sition of German citizenship is, therefore, a half-hearted but never­ theless welcome step towards a revision of the relationship of Germans to their aliens - and thus implicitly towards a revision of the conception of what it means to be German.

For adults, the acquisition of German citizenship remains extra­ ordinarily difficult. Only since 1993 has a right of naturalization for foreigners existed in some cases. According to the new version of the law regarding foreigners, in force since 1 January 2000, an alien 'who has legally had his or her principal residence in Germany for eight years' [trans. E.J.] has the right of naturalization

Moral Argumentation 15 I

(§85). This only applies, however, under additional conditions, two of which are very rigorous. Firstly (§85.3), foreigners must be able 'to earn a livelihood for themselves and family members entitled to support without claiming welfare and unemployment benefit'; secondly (§85.4), they must 'relinquish or forfeit their previous nationality' [trans. E.J.]. The clause just quoted, §85.3, excludes from citizenship all socially disadvantaged people, such as the unemployed or unemployable, and, in particular, it prevents asy­ lum-seekers from obtaining the right of naturalization simply by remaining in the country.

The requirement that the applicant lose or relinquish his or her previous citizenship is also very drastic, since, on the one hand, it represents an imposition on the person concerned - since they are forced to give up a part of their identity - and on the other, because very many states do not release their citizens in this way, or not easily. According to German law there is, as a rule, no possibility of dual nationality.

It is true that under some circumstances, as specified in §85, multiple nationality is accepted, but in individual cases it will be extremely difficult to prove that these conditions - for example, that 'the foreign state regularly refuses to release its citizens' (§87.2, trans. E.J.) - are fulfilled.

There is no direct way to obtain German citizenship - that is, no law of immigration. German citizenship can only be obtained if the applicant has already, through other constellations and oppor­ tunities, met the essential conditions - legal domicile and secure livelihood - while still a foreigner. Moreover, the right to be naturalized even under these conditions has only been achieved through very laborious political compromises. The consensus on the matter is still unstable and could easily break down if there is a shift in the political climate or a change of government. The possibilities of obtaining German citizenship remain in strong contrast to what is customary in other European countries, such as France, the United Kingdom, the Netherlands and Sweden. In all these countries a five-year period of residence is, as a rule, suf­ ficient and, above all, those born in the country have the right of citizenship without restriction - i.e., a lex solis obtains.

The question of German citizenship and of the rules and laws governing naturalization is, indeed, crucial for our society's con­ ception of itself. Because citizenship is really based on the blood relationship, the racial idea - that is, the idea that race constitutes the basis and unity of the state - is preserved, blocking the way to a modern conception of the state and a renewal of society's

1 52 Moral Argumentation

understanding of itself in contradistinction to that of the Third Reich. In their book Heimat Babylon, Daniel Cohn-Bendit and Thomas Schmid rightly point out that at the time of the emergence of the nation state, in the late eighteenth and early nineteenth centuries, Germans were seeking, and found, in race (das Volk) the cement which would bind together the many petty states making up Germany at that time, and overcome the regionalism and particularism that went with them:

From that time onwards there was in Germany (and especially among its elites, an increasing tendency to make 'the others' - the French, the English, the Jews, the non-residents - responsible for all problems. In short, because the nation state was founded not on political but on racial concepts, and thus on hostility to foreigners, and because this form did not suit the Germans, it took a chauvin­ istic turn.46

Consequently, the concept 'German' still has racist traits; that is to say, one simply cannot imagine a German who is black or of Asiatic appearance.

The discussion on the basis of citizenship, dual nationality and naturalization therefore always revolves around the way in which we wish to understand our state community and in what sense it is called German.

There is a further problem connected to the right of citizenship - the question of the sense in which, and how self-consistently, our society is democratic. The high proportion of foreign citizens in the Federal Republic means that a significant part of the population is excluded from democratic rights of participation, since the right to vote depends on citizenship. The foreign citizens are under all the obligations which apply to the regular citizens. They also share their general rights and can, as a rule, make use of the welfare state; yet they are not involved in the formation of the political will and they cannot be elected. Their interests could therefore, at most, be represented for them by committed German citizens. A funda­ mental principle of democracy, that all those who have reached majority can take part in the decisions which affect them, is set aside. It is self-evident that there can be no consensus of society as a whole on this point, and that the maintenance of the convention of restricted rights of participation can only be repressive.

Moral Argumentation 1 53

The right of asylum

The right of asylum, as originally contained in Article 16 of the Basic Law, was unique and exemplary world-wide. The second clause states succinctly: 'No German may be extradited to a foreign country. Persons persecuted for political reasons enjoy the right of asylum' [trans. E.J.]. The last sentence is unique because it grants to a non-citizen who is seeking protection a right, and does not merely formulate an obligation of the state to give asylum. More­ over, this right of asylum is absolute, in the sense that it is not dependent on a particular political situation, or on a policy of the German state, and is not granted in relation to certain countries and regimes. In the debates of the Herrenchiemsee Constitutional Convention, and of the Parliamentary Council, this point was given special prominence by fears that the right of asylum might be claimed by 'refugees with undemocratic inclinations'.47

What induced the Herrenchiemsee Convention and the Parlia­ mentary Council to incorporate asylum as an absolute right in the Basic Law was, clearly, the experience of the Third Reich. Even in the current debate on the right of asylum it is constantly argued that Germany has a moral obligation to grant asylum because it itself had repressive regimes at the time of the Third Reich and again in the GDR, which made refugees of many of its citizens and forced them to seek asylum in other countries. However, this historic obligation towards the 'free world', in which hundreds of thousands of Germans found shelter, is only one side of the historical background of the debate. The other side is that the German emigrants were by no means everywhere received with open arms, were frequently faced with closed borders and were sent back even when their lives were at risk. In face of the influx of refugees and the political situation, the conditions on which foreigners were admitted were tightened in the countries con­ cerned. In his book Emigration. Die Geschichte der Hitler-Fliichtlinge 1 933-1 945 the human-rights activist Kurt R. Grossmann writes:

When the racial persecution was at its height, states sent back women and children, and even women in an advanced state of pregnancy. From at least 1938 democratic countries such as the United Kingdom, Sweden and Denmark adopted a policy of repatri­ ating refugees who crossed their border without a visa. But entry visas could only be obtained after lengthy formalities. Illegal immi­ gration remained a punishable offence - a hopeless contradiction in

1 54 Moral Argumentation

face of the mortal danger from which political and racial refugees were trying to escape.48

Against the background of such experiences, there were strong reasons to formulate a right of asylum for refugees. The discussions of the past years have been essentially concerned with restricting this right, or with legitimizing the actual restriction with further provisions, in particular, the law on asylum procedure of 1982.

Today, when a large part of the population and the decisive political faction would like to be rid of the law of asylum, the Geneva Convention on Refugees of 1953, extended in 1969, plays a significant role.49 For it lays down in terms of international law - sanctioned by about 100 states - certain minimum requirements to be met by asylum regulations, which it would be difficult for the German Federal Republic to disregard without loss of international standing. According to Article 1, Paragraph 2 of the Geneva Convention on Refugees, a refugee is defined as a person who 'owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality'.50 The crucial provision is found in Article 33, which proclaims a ban on expelling and sending back refugees:

No Contracting State shall expel or return a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.s1

As I said, this formulation sets minimum standards; on the other hand, it falls short of the German law on asylum in that it only prohibits expulsion and sending back, but does not grant the refugee a right of entry. According to the German asylum law, in principle, a foreigner who is persecuted politically could make an application for asylum even from outside German territory, or, conversely, the German state should allow anyone who wants to claim asylum to enter the country.

As mentioned earlier, this right has already been substantially restricted by the law on asylum procedure of 1982. According to Article 16 of the Basic Law, the right of asylum cannot, strictly speaking, be denied to anyone, and this, as a fundamental right, cannot be affected by changes to the constitution. That is why it was decided to use the alternative method of raising a procedural wall against asylum. The procedure now requires the refugee to

Moral Argumentation I 55

provide proof of persecution. It also acts as a practical deterrent to the seeking of asylum by imposing compulsory accommodation and thus splitting up families, by maintaining long waiting times, and so on. The right of asylum, already extensively undermined in this way, has now been taken practically ad absurdum by an addition to Article 16 of the Basic Law. According to it, no one may now claim asylum who enters either from other states of the European Community or from states 'in which it appears to be guaranteed by the legal situation, the application of law and the general political conditions that neither political persecution nor inhumane or degrading punishment takes place' (Basic Law, Art. 16a, §3). Which states these are is determined by a law, and can therefore be subject to the political judgement of other states. As the Federal Republic is now surrounded by a cordon of such states, asylum-seekers can only reach the country by sea, by air or by illegal means. In practice the number of asylum-seekers has been kept constant by these measures, and the originally absolute right of asylum has been abolished.

The currently sanctioned consensus regarding the treatment of foreigners seeking protection has now been described. This consen­ sus is supported by a broad political majority - without which the change in the constitution would not have been possible. It cannot be said, however, that the problem has been solved by this so­ called compromise on asylum, or that the debate on asylum in the population has been laid to rest. On the contrary, repeated scan­ dalous expulsions made on the basis of the present legal situation constantly cause the debate to flare up again and give rise to resistance going as far as civil disobedience and illegal actions.

Our conception of the society we want to live in does indeed depend on the regulations concerning the right of asylum. This can be seen in the fact that the right has been called generous or over-generous. At the time of the Cold War the Federal Republic of Germany was rather emphatic in seeing itself as a free constitu­ tional state, and, priding itself on this status, accepted a large number of refugees - who, admittedly, were largely 'brothers and sisters' from the 'so-called' German Democratic Republic. Today, our understanding of ourselves as a free state still depends on our readiness to accept political refugees. This self-evaluation is endan­ gered if, driven either by the hostility to foreigners in our own population or by purely pragmatic considerations about our capacity to accept refugees or the social burden they represent, we restrict the right of asylum. Political freedom itself suffers if one is unwilling to share it with others. And any quibbling about the

1 5 6 Moral Argumentation

right of asylum threatens our historical awareness. The willingness in effect to abolish Article 16 of the Basic Law by an addendum has caused a break with the past, a repression of the historical origin of the Federal Republic. The experience of flight and perse­ cution in the Third Reich simply does not admit a purely prag­ matic modification of a right as fundamental as that of asylum.

In the debate on the right of asylum it is constantly argued that the primary objective is to curb the misuse of the right and to distinguish genuine political refugees from those who wish to enter the Federal Republic for merely economic reasons. It should not be overlooked here, however, that for political refugees, the Federal Republic is also especially attractive, in the spectrum of possible destination countries, because of its economic prosperity. If one wishes to neutralize this factor in one way or another, that is itself a serious question, in that the Federal Republic is not willing to share its wealth with at least a part of the rest of the world, and especially with those who enter its territory as refugees. In that case our social understanding of ourselves is not deter­ mined by generosity, but more and more by a siege mentality.

Customary behaviour towards foreigners

The right of asylum, however admirably conceived by the fathers of the Basic Law, never had a broad basis of support among the population. As long as the East-West confrontation existed the praxis of asylum was straightforward, as anyone who knocked on our door could be celebrated as a triumph of the Free World and the western way of life, and a defeat for totalitarianism. Statistics on numbers of refugees were therefore published and read with satisfaction. But this did not reflect an openness towards foreigners or a willingness to integrate them. On the contrary, one is obliged to note a long-standing tradition of hostility to foreigners, and an inability to uphold courteous relations with them. For this reason, the present discourse on dealing with foreigners is not concerned merely with formal regulations, such as the rights of citizenship and asylum, but with a culture of the treatment of foreigners, that is, with the customary behaviour and the social attitudes and assumptions which need to be mediated by education.

That there is a prospect of change in this area is shown by the practical discourse on external nature. Here, an environmental ethics has come into being which concerns the treatment of

Moral Argumentation 1 5 7

resources such as refuse and packaging, and relates generally to consumer habits and tourism. This discourse has actually led to new forms of customary behaviour which are successfully medi­ ated by education, and especially by schools. Just as there is now an environmental education, one should aim also at a multicultural education. How much any such thing is lacking becomes strikingly apparent if one peruses the classic works on good behaviour in search of a category on 'behaviour towards foreigners'. The stan­ dard work by Knigge, for example, gives advice on behaviour towards practically every conceivable human category - superiors, princes, people in love, poor people, scholars, etc., etc. But guid­ ance on behaviour towards foreigners is not to be found, any more than it is in Salzmann's primer on morals.

If one looks back in history, one can observe an increase in the rights of foreigners and, concurrently, a decrease in personal courtesy towards them. Originally, in the legal arrangements of antiquity, the foreigner or stranger was without rights. The law related only to the members of the community concerned. How­ ever, the stranger was under the protection of Zeus and, in the individual case, enjoyed personal hospitality. Within a community, therefore, the stranger was protected as the guest of a particular person or family. The right of hospitality was itself a highly developed institution, governing many matters concerned with acting as host, showing respect, presenting oneself and exchanging gifts. In the long run it created personal links which in some cases had political consequences. In particular, trade relationships gave rise to a body of law on strangers. In Greek communities there were synoecetes and in Roman ones peregrini, i.e. citizens without formal citizenship, whose presence, tax liability and business activ­ ities were governed by law. While the progressive expansion of the rights of strangers gave them legal protection and made it easier for them to work in the host community, it did not facilitate their acceptance. It can be said, rather, that the law on strangers, the successor to which may be seen in the law on foreigners today, created a foreign body within the community, and intensified tendencies of personal differentiation. Characteristic of this devel­ opment is the position of Jews in Germany. A countervailing movement is represented by the development of universal human rights, the emancipation movement and the policies of naturaliza­ tion and assimilation which came in the wake of the French Revolution. This line of development lives on the idea of equality, which means implicitly that the existence of inequality is denied . The attempt t o meet the foreigner a s a n equal and t o accept him as

1 58 Moral Argumentation

such requires him to negate his differentness and to adapt to the society and culture which receives him. Here, again, the history of the Jews is instructive. They were forcibly apprised of how flimsy was the offer of equality, and how illusory their own efforts at assimilation - just because the acknowledgement of foreigners as the other, and willingness to live with them as such, were lacking.

The continuous trend of European culture in this regard, unfor­ tunately, is xenophobia, that is, hostility towards foreigners, a development which was occasionally enlivened, but actually merely confirmed, by periods of exoticism. Exoticism is an effusive enthusiasm for foreignness - as for things Chinese and Japanese in the eighteenth century and for the Near East in the nineteenth. This interest in, love for or, indeed, infatuation with the foreign is, in part, a sign of dissatisfaction with one's own world, and survives only as long as one can keep the foreign world concretely at arm's length: exoticism is love of the most distant. Xenophobia, by contrast, has its basis precisely in self-definition and in esteem for one's own world. It has therefore been presented as something positively natural for the constitution of self-image and community spirit: in order to value one's own world one needs to differentiate oneself from the foreign, which is therefore seen as inferior, wrong. According to this model the Greeks distinguished themselves from the barbarians, the Christians from the pagans, the civilized from savages, the white from the black, the Aryans from the Jews. In Germany, where the idea of the nation state was founded on the concept of the Volk, the race, the self-image of the nation state became associated with racial anthropology. Underlying this whole mindset is the notion that homogeneity is a prerequisite for social cohesion. Accordingly, politicians talk today of a threat to the German community on the grounds that it is being flooded and subverted by foreigners and alien races (iiberfremdet und durchrasst).

This ideology of a necessary social homogeneity has often been linked, and still is linked today, to the fear instilled by moderniza­ tion. Rationalization, driven aggressively forward, produces struc­ tural unemployment and therefore a tendency to suspend the free competition for jobs. The scarce j obs are seen as our jobs: German j obs for the Germans. In addition, the continuing dismantling of the welfare state fuels resentment towards foreigners benefiting from it. The level of pensions is compared to the welfare benefits paid to asylum-seekers, and more and more restrictions are placed on the social equality of foreign citizens. The lack of willingness to accept the foreigners among us, to take an interest in them, and, in

Moral Argumentation 1 59

general, the inability to deal with foreignness in any way, are the foundations of a new racism. In everyday life, someone is foreign primarily if he looks foreign, and the defence mechanisms and prejudices are therefore attached to externalities. From skin colour, the colour of hair and the way it hangs, through physical form to dress customs and eating habits - such outward signs become symbols of a threat. For this reason the hostility towards foreigners, in its practical, daily application, is directed not so much at those who are aliens in terms of their legal status, but at all those who appear foreign through their appearance, behaviour or language, even if they are Germans. The only exception to this are certain groups of recognizable foreigners whose equality of rank is acknowl­ edged, that is, in whom their assumed equality is coupled with at least a tolerance of their differentness. Characteristic of this tend­ ency is behaviour towards Americans and Japanese. No matter how preposterously American tourists may dress and behave - as such they are acknowledged. Likewise, the different table manners and eating habits, the permanent smile and the answer hovering between yes and no are excused in a Japanese businessman. Such examples of acknowledgement of the foreign, which demonstrate in principle the possibility of different forms of behaviour, under­ line the fact that in general foreigners as such are not acknowl­ edged and meet with racially tinged repulsion. Japanese and Americans are the 'good' foreigners, just as, on the basis of a general anti-Semitism, there was always talk of 'good' Jews.

This everyday racism contradicts the conception of ourselves anchored in the Basic Law. That is already enough to make it a burning moral issue. Beyond that, however, the hostility towards foreigners does not accord with our belief that we live in a modem society. The everyday behaviour towards foreigners, as well as the legislation relating to them, which treats their presence as a matter for policing, that is, as a threat to be averted, runs counter to the actual modernity of our society.

The unity of a modem society no longer depends on inner homogeneity, whether ethnic, linguistic or cultural. Rather, it is

determined functionally, that is, it is generated by the division of labour, the market and, more recently, by technical networking. Modem society is a society of people defined in terms of work and commuting. Its cohesion is ensured by the actual involvement of its members in the system, not by a common faith, still less by a likeness of biological features, or even by a common language. It is true that the functioning of society benefits strongly from a common language. But it can be seen from many societies that this

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common language can have only this functional character - that is, it does not absolutely need to be the mother tongue of the majority - and that in principle the matter can be resolved multilingually. Religion is in any case a private affair in modern society. But even what is ordinarily called culture - art, manners, public holidays, taste - has lost its constitutive importance for modern societies. In technical civilization the central social functions are no longer organized and shaped culturally. Thus, culture, too, is turning into something private, something which belongs to the sphere of leisure, festivals and vacations. For this reason our behaviour towards foreigners and our understanding of foreignness decide, at the same time, whether we are developing a modern under­ standing of society. But even if this self-understanding is still lacking, the actual modernity of society should be seen as an opportunity for putting into effect the social process of learning how to deal with foreigners.

I should like to call the customary behaviour now prevailing in dealing with foreigners the customary behaviour of the frontier. Just as the law relating to foreigners is essentially a law governing the entering and leaving of the country by aliens, and their permission to reside here, customary behaviour at present is of a kind which places no expectations on ourselves, but only on the others, the aliens. They are expected to adapt, to respect our laws and cus­ toms, to learn our language and, especially, to present themselves in an unobtrusive way. The one-sidedness of this form of custom­ ary behaviour needs to be overcome. The aim must be to develop modes of interaction which, though based on a fundamental equality as formulated in human rights, for example, at the same time imply recognition of otherness. The first step would be to establish what I would call customary behaviour of second degree. While this would certainly place demands on us in our way of treating foreigners, it would not yet require any interest or com­ mitment or even communication concerning ourselves. It involves the traditional kind of attitude towards foreigners which, since the Enlightenment in Europe, everyone is actually supposed to have learned: respect, tolerance and courtesy. Courtesy is understood here not as any highly specific form of conduct, but as the way in which everyday communication is organized, in terms of good conduct, helpfulness, civility in manifesting respect and tolerance. That these requirements have not yet been turned into customary attitudes governing average everyday behaviour towards foreign­ ers is in truth a scandal. It might be explained, on the one hand, by the foreigners' inability to impose sanctions - members of one's

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own group always have the possibility of negative sanctions if customary behaviour towards them is not respected; but it may also be explained by the fact that these requirements are mediated by reflection or even, more precisely, by abstraction: the other is respected because he or she is also a human being and his or her religion and culture are also a religion and culture like our own. This abstractness of second-degree customary behaviour could probably be remedied by engaging somewhat more with the other, the alien, by developing an interest in him or her and revealing something about one's own life. This touches on what is nowadays called multicultural learning and praxis. The reality of a pluralist and potentially multilingual society can only be done adequate justice if it becomes a matter of course that everyone learns something about other cultures during their primary socialization, grows up with at least one foreign language and participates in the practices of other cultures, through personal connections or as a guest at festivities. In this way the members of the dominant ethnic group and culture, in our case the Germans of the Christian West, will be able to recognize the narrowness of our own culture and in some cases the superior practices of others. I am thinking of such things as festival arrangements, greeting rituals and gift customs, clothing, eating habits and table manners. Education must not only impart knowledge of other cultures and religions - though it must certainly do that as well - but must make possible concrete experiences, and rehearse practical behaviour. Anti-racism cannot be limited to linguistic rules and formal equality, but must be practised from school or even kindergarten age, especially through working in multi-ethnic teams, so that it is taken for granted as a part of everyday life.

There are, however, some preconditions for this multicultural praxis and learning. They can be characterized generally as atten­ tiveness, interest, helpfulness and, above all, the suspension of one's own claim to totality. For the difference between the foreign­ ers and our own people consists primarily in the fact that our people form the majority and are on their own ground. True recognition of the other as other will really only be achieved when we are able to revoke this dominance and see ourselves in the role of the stranger: for we ourselves do not know the others' language, or their rites and customs, yet as a rule we insist that they learn ours. To begin with, this anomaly can only be mitigated by a helpfulness which acknowledges the difficulties of the other, the alien, and makes them our own. But it is also possible to practise taking an interest in the foreigner, being attentive to his peculiarity

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and problematizing our own. There is no doubt a long way to go before these attitudes will be taken for granted as what is customary in average behaviour. But the moral challenge currently presented by the foreigners among us can only be met in that way: not just by tolerance and equality, but by acknowledgement and interest.