Editors: Michio Okamoto, M.D., Norio Fujiki, M.D. & Darryl R.J. Macer, Ph.D.
Emeritus Professor, Law School, Osaka University
It is, exactly speaking, the legal provisions, which are found in the Code Digesta promulgated by Justinianus in 533. The code consists of the collected famous Roman lawyer's opinions as arranged in a form of legal provision. Ulpianus (about 170-228) is one of them. Three provisions said to be written by him may be interesting to us.
(1) "Natural law treats all human beings as equal."
(2) "According to natural law, all human beings are originally born free."
(3) "Natural law is the law which nature taught all animals."
(1) and (2) say, all human beings to originally equal and free. The perspective here is limited to human beings. On the contrary, (3) is the enlarged perspective to cover all animals.
Perhaps (1) and (2) remind us the modern rights declaration, the constitutional provision, Universal declaration of human rights white, (3) leads us to extraordinarily wider space beyond narrow human nests. And yet, to summarize the following part on Ulpianus (3), it says like this: All animals are commonly to able to know natural law, because it is quite clear, if we remember them being common in regard to union of male and female, childbirth, education.
What Ulpianus (3) teaches us is biological. He is not a molecular biologist, and he does not know DNA. The message that not only human beings, but flying birds, fishes swimming in the water, animals were naturally, originally common, however, stimulates me again. Because, if it is the contemporary message that all living things including human beings owe their life maintenance and development to the fundamental, DNA we may perhaps feel the new message somewhat interrelated with the old one from the ancient Rome. Is this too sentimental impression?
In addition, it is often the case that a child resembles his or her parent, sometimes completely, through the succession of gene, DNA. Does Ulpianus roughly explain by saying the union of male and female as cited above?
The study of DNA, gene is intimately related with topic of evolution. Certainly, Ulpianus (3) doesn't mention to this. Furthermore, Ulpianus (3) Looks like contradictory with (1) and (2), as (1) and (2) stressed the human aspect, especially normative aspect of human freedom and equality, while (3) biological aspect. That is why modern thinkers tended to criticize such a contradiction or discrepancy.
But, is not there another way to read it? How about this? At the starting point, that is. (3) or biological level, human beings are common with other animals. After going on their way to differentiation, they themselves found the horizon to be free and equal, that is, (2) and (1). Such a reading, though forced, may interests you a bit in its relation to the evolution idea.
As we know, in the period of modern civil society and civil state, the biological aspect goes behind the strong argument for freedom and equality. Only Montesquieu or Savigny mentioned to natural law in a biological sense, or Ulpianus (3).
In 19th century, Darwin, or Spencer energetically explained their idea of evolution. We can see how various ideas are sinking and floating in the great stream of the age. Maine is a famous figure who describes different types of law in terms of evolution.
Japan after Meiji Restoration (1868) may be another good example. I shall cite a controversy. H. Kato, originally supported the natural rights theory, switched his idea from it to Darwinism to criticize natural rights in terms of the law of jungle. T. Baba criticized Kato's idea by standing on the evolution theory, and yet to defend and maintain natural rights theory in terms of social differentiation. In addition, N. Hozumi wrote the theory of legal evolution.
Returning to the present, we can listen old voices of advice from the past. One of voices sounds like this: Human beings have lived on the planet so long and so short. Their trace shows us the jigsaw process, or trial and error. It is not only the case with human beings but human knowledge, certainly including scientific.
It is easy to speak of the great achievements of molecular biology. We heard that this comes to make it possible to create new living things we never saw before. Great. But to say that it is possible technically is not the same with saying that it is right to do and realize it.
This is the serious issue often symbolized by "Playing God." Viewed from our poor experience, we need to be careful, or refrain from it. Eventually, it may be a point vaguely lighted up through our long and short steps. Simply speaking, we need principally to refrain from the gene treatment of reproductive cells of human beings. "Report on Gene Related Issues"(Study Group of Gene Related Issues) points out in this direction.
She says, bioethics is "multidisciplinary". Indeed, it covers wider areas from the elucidation of gene, DNA through science and medicine to the study of society, culture, economy, law...... Furthermore, she adds: "Bioethics is not confined to thinking about the relationship between science and society. It is concerned with the relations between human beings and nature in all its diversity, including the nature of the human beings themselves".
(1) Nature in the context above is biological. Does not it remind us Ulpianus (3), natural (law) in a biological sense? Please, continue to think by referring that image map of nature added.
The word "nature" is often used, though figuratively, to designate itself as connected with the social, or normative level. The image map here may well be read from bottom to top, or from top to bottom, or in their circulatory process. It is needless to say that I do not propose to understand so widely nature as the image map shows, but I merely summarized many usages of the word nature in their mutual relations.
We often enjoy to see and sometimes admire so beautiful nature in the world. Viewed from the strict comparison of nature with arts, or artificial, probably we will be surprise to find so many landscapes looking like natural, in reality heavily modified, artificially. It is only a simple example. Going up and going down the steps from pure nature through artificially modified nature to..., it will perhaps serve for us to understand her idea.
(2) At the social level, she pays attention to individual private life, family - life, life as members of society in conjunction with the problems of human genome research. Furthermore, through a bioethical thinking, specialists are able "to enter into the dialogue with decision-makers and the public." Well balanced consideration. Besides, she mentions to "communities". It appears to me similar to society, but does it have an own nuisance?
(3) At the normative or value level, she repeats the significance of human dignity, individual freedom, equal right and solidarity. Yes, indeed. Again, "the dignity of human being, who are unique, free and responsible for their action", or responsibility and solidarity, or "to be good, honest and virtuous". Each words are so attractive and impressive that we feel all acceptable. Basically, I myself feel sympathy in this way.
But the society now we live in is said to be pluralistic because of values competing with each other. Take as an example of values that idea of "human beings, who are unique, free and.....". Does this, like the polestar, lead us to the solution within such a chaos of value competition, and what is the persuasive reason for doing so?
Returning to our daily life, we meet many people including the aged and handicapped, as symbolized by that idea. We meet children, too. Then we think and speak of fetus, fertilized egg, embryo, gene. Do we feel them gradually remote from that idea of human beings/ Viewed from the opposite side, we feel, we go up the steps from amorphous, vague to clear figure continuously or discontinuously. It probably raises again a question of how to draw a line when human being sort, in connection with ethics, culture, law.....
"The survival of the human species", she says, is the relevant HLA. Hart's emphasis on the significance of "human survival" in the concept of law. It is really an urgent task for us to take survival seriously in front of our acute problems coming from environment, population, medicine, and so on. We need to consider, however, why we, human beings alone can survive in our changing planet, while the living things started from the same, DNA, or Ulpianus (3). It may look like SF. But it is the problem we have to be faced with in a near future. From gene, DNA, fetus..... to other living things, we are living in a huge network. Is not it necessary for us to find human way of life in such complex relations -discontinuous continuity?
Figure 2: "Nature" in its various implications