Monday, 30 May 2011

Finland Wanders Down Racist Memory Lane: the ID as Concentration Camp Badge (+ addendum)

It is reported today all over Swedish media (here, here, here, here) that residents of Finland that are not (yet) Finnish citizens are to be forced to carry IDs that are coloured brown, rather than the ordinary blue. While policies distinguishing people based on citizenship were to be expected as a result of the success of the Finnish new racist (or, as I would have it, nationist) party Sannfinländarna ( ≈ "True Finns"), I was quite shocked by this the first expression of this political shift. Considering the practice of 20th century racist regimes to force people of targetted undesirable groups (such as jews or gays) to wear special markings on their clothes in the concentration camps, but also in general public, one would have thought that an idea like this would be avoided, if nothing else, for tactical reasons.

As I explained in my series of posts last year on the ideological core of the new European racism (pt. 1, 2, 3), the new direction of nationism – where citizenship rather than biological type or ethnicity is in focus for the standard racist idea of sorting people into categories of more or less worthy – that has helped the new European racist parties to achieve some success in recent years, ultimately leads down the same road as those more familiar types of racist ideology that Europe encountered in the 1900's. However, it is also an elaborate tactic of these parties to try to hide this logic behind (untenable) pragmatic arguments re. immigration and citizenship. Therefore, it is a bit of a surprise to see this rather radical and large step in the direction of the ethnic cleansing that I argued will, in the end, have to become the primary objective of the new racists. In the end it will be about separating "real" Finns from the "unreal", regardless of geographical or genetic descent, denying the latter the rights and priviliges of citizenship.

Apparently, according to the news reports, a pragmatic argument has been offered also in this particular case, namely that the new policy will make the job easier for the police. Exactly how, one wonders. IDs certainly makes the police's job easier, but what does it matter for police-work whether or not people contacted in the course of investigations are immediately visible as non-citizens? If the matter of citizenship happens to be relevant (which it is, like, never), this will reveal itself as soon as inquiries are made into the records of the person. No, this argument is so lame, and such an obvious pretext, that one wonders why anyone even bothered to wield it. This is about marking out and separating people on the basis of the basic nationist idea of what makes people more or less worthy of protection (namely citizenship). This is about installing this notion into the minds of Finns who will be exposed to these markings (in the bank, the post office and every time an ID is needed when shopping).

And, of course, this is how it all began in the 1930's.........

Addendum (a few hours later)
According to a Finnish academics friend, the official explanation given in Finland is that it is important "for security reasons" that the ID given to non-citizen residents is not a valid travel document within the Schengen region. This, of course, is as lame as alluding to the needs of the police. First, it assumes that there would be a connection between being a security risk and being a resident non-citizen of Finland (which, of course, there is not). Second, it totally misses the point, since the Schengen region works in a way that means, that everyone have to prove citizenship, residentship and/or valid reason (such as a tourist visa or equivalent) when entering the region, but not within the region (thus, when flying from Helsinki to Gothenburg, no one checks passport or anything else at arrival). If you are a resident of a Schengen country, you have the right to travel to any Schengen country. In effect, it would appear that – if not strictly violating (after all, the non-citizens can use their passport if they have one) the Schengen agreement – the Finnish move most certainly is violently acting against its spirit.

On the webpage of the Finnish police, the reform is explained in terms of "enhancing security", presumably hinting at the just related (invalid) reason.

Sunday, 29 May 2011

Torture as Treatment?

Despite the ugly track record of treatment of intellectually and cognitively disabled people over the centuries, I was actually quite shocked to learn about this apparently ongoing practice in the USA:

Eight states are sending autistic, mentally retarded, and emotionally troubled kids to a facility that punishes them with painful electric shocks.

Read more here.

Friday, 27 May 2011

The Philosophy of Hate Crime

Yup, a brand new topic on this blog, connecting to the fact that I am currently involved in a European Commission sponsored project called When Law and Hate Collide. In late September, we'll be arranging a special symposium about the philosophical aspects of hate crime policy as part of this project at my university and, as a preparation, my Swedish co-worker in the project, David Brax, is exploring what philosophers of different leanings have had to say on the subject, while we both ponder various ways of motivating (or not) the sort of hate crime legislation that can be found in different countries, and what such rationales say about how such legislation a should look like in a European setting. All of this to deliver the main goods of the project to...

To provide the European Parliament and the Commission with a working definition of Hate Crime and consensus policy/best practice guidelines in order to ensure all Member States of the Union offer the same legal and legislative certainty across the Union.

Anyhow, this is mainly to tell you that David is currently posting quite a few snippets of thought about this at his blog, Brax on Philosophy. So, if you have any interest in this topic, it may be worth a visit. We're more than happy to receive whatever comments you might have.

In addition, you can follow the project on Twitter, as well as on Facebook.

Saturday, 21 May 2011

My Book on the Ethical Basis of the Precautionary Principle is Out!

So, some shameless self-promotion:

My book on the ethical basis of the precautionary principle, The Price of Precaution and the Ethics of Risk, is now officially released by Springer. To view the table of contents, sample substantial portions of chapters and look up names or subjects in the index, click on the button below:

 Here's the content summary in all of its glory:

Since a couple of decades, the notion of a precautionary principle plays a central and increasingly influential role in international as well as national policy and regulation regarding the environment and the use of technology. Urging society to take action in the face of potential risks of human activities in these areas, the recent focus on climate change has further sharpened the importance of this idea. However, the idea of a precautionary principle has also been problematised and criticised by scientists, scholars and policy activists, and been accused of almost every intellectual sin imaginable: unclarity, impracticality, arbitrariness and moral as well as political unsoundness. In that light, the very idea of precaution as an ideal for policy making rather comes out as a dead end. On the basis of these contrasting starting points, Christian Munthe undertakes an innovative, in-depth philosophical analysis of what the idea of a precautionary principle is and should be about. A novel theory of the ethics of imposing risks is developed and used as a foundation for defending the idea of precaution in environmental and technological policy making against its critics, while at the same time avoiding a number of identified flaws. The theory is shown to have far-reaching consequences for areas such as bio-, information- and nuclear technology, and global environmental policy in areas such as climate change. The author argues that, while the price we pay for precaution must not be too high, we have to be prepared to pay it in order to act ethically defensible. A number of practical suggestions for precautionary regulation and policy making are made on the basis of this, and some challenges to basic ethical theory as well as consumerist societies, the global political order and liberal democracy are identified

Thank you for your kind attention!

Tuesday, 17 May 2011

New Vatican Guidelines on Sexual Abuse: A Step On the Way but Still A Disgrace

The Vatican, CNN reports, has released a new set of guidelines on how to handle sexual abuse allegations against clergy. In light of the virtual storm of criticism against the established practice of the Catholic Church (except in some local branches, such as Sweden) to shield accused priests or congregation members from police investigation, this was expected. The new guidelines also do state that when required by the law in the jurisdiction in question, allegations and suspicions should be reported to the police. However, the guidelines leave a loophole for those jurisdictions where reporting is not a legal obligation.

In other words, what the Vatican here does is to make the most minimal adjustment possible in order to adapt to the criticism. It is – as I have been arguing in another post – apparently still all about minding the integrity of the institution of the church, rather than caring for justice and the victims of abuse. That is, the institution that habitually holds itself out as the moral beacon of over a billion people has not found reason to ponder the ethical implications of continuing to provide room for the practice of shielding suspected grave criminals from legal investigation and denying justice for victims of grave crimes. What has been added to the old policy merely seems to be the analysis that the global public outrage caused by it threatens to become a greater threat to the integrity and popularity of the church than legally required police investigations into reportable criminal abuses would. That is, as to ethics, the Roman Catholic Church reasons just as any amoral business corporation, whose "ethics" consists merely of the dictum to follow any legal rules of any jurisdiction where it operates.

Fine case of a moral beacon that is. Given the background story, while the adjustment of church policy is a step on the way, it is also a complete disgrace. I mean, how hard can it be to state the obvious: if you receive allegations about or suspect the occurrence of a grave crime, this shall be reported to the legal authorities. This is what citizens of all jurisdictions are expected to do – regardless of if, in that jurisdiction, this also happens to be a legal obligation.

Saturday, 7 May 2011

Happy Birthday, Dave!

I may just as well quote The Royal Institute of Philosophy:

The mighty David Hume was born on 7 May 1711. Enthusiasts might find an excuse to raise a glass twice, because before Parliament’s reform of the calendar in 1752, Hume’s date of birth was 26 April.  
For philosophers or those who have had some philosophy education, it would clearly be overdoing things to remind about the importance of Hume's achievements and legacy for just about all of contemporary philosophy – as well as psychology and behavioural, cognitive and social science. On this blog, but one post has referred explicitly to Hume, but I assure you that the legacy of his thinking and intellectual temperament can be traced in all posts. As Isiah Berlin put it in The Age of Enlightenment:

No man has influenced the history of political thought to a deeper and more disturbing degree.
And this may be said just as much about the development of science – not least the still very much lively and evolving sciences of human mind and action.

So, if you don't know much about Hume, but becomes curious – where should you start? Well, here nuances of taste would divide the advice you would get from different philosophers. My own favourite is the magnum opus of his youth, A Treatise of Human Nature – where, with a young person's passion, Hume sets out much of the ideas he would later work on in more concentration. It is only in the Treatise, though, where we can meet the wide philosophical grip of Hume in its entirety and most radical form. Here you will find ideas that are still radical and provoking and that, in contemporary linguistic dressing, are not seldom presented as the latest achievement of this or that currently upcoming academic star. Many of my colleagues prefer the more balanced approach of the "Enquiries" that Hume wrote in his later years, but as a primer, I still prefer the Treatise due to its passionately revisionary programme and style.

Both texts (and more) are available for free online inspection. If you can bear with the older style of English in which Hume himself wrote, the Hume collection at the Project Gutenberg is a good start (you need to scroll down a bit on the page linked to here). If you find it tiresome to read those texts, the distinguished contemporary philosopher Jonathan Bennett has made his own "translations" of Hume's texts into contemporary English.

Happy birthday, Dave!

Thursday, 5 May 2011

A Continuous Quantitative Theory of Sex, Gender and Sexuality

In this post, I will be sketching an idea that I have been toying with for some time. It connects to recent discussions in queer theory, criticism of so-called heteronormativity and suggestions about introducing a "third sex". My basic take is that I am sympathetic to this direction of thought, but I find it to be vulnerable to the same sort of criticism that it usually wields against its intended target. Therefore, I present a skeleton version of a theory of sex, gender and sexuality that would avoid this problem. I would like to stress that I make no claim to originality – too preoccupied with my duties as manager and researcher in various projects, I have had no time to thoroughly scan the gender theoretical and biopolitical debate for suggestions of the sort I here try to describe. If you know of one – I'm quite happy to be alerted!

1. Background
At least since Judith Butler's questioning of the sex-gender distinction, the sex categories as naturally given and the ensuing wave of so-called queer theory (but really the tendency can be found already in Mary Wollstonecraft's classic A Vindication of the Rights of Women from 1792), there has been a wave of proposals for refining the taxonomies used for classifying people in terms of sex/gender/sexuality. Whatever one may think of Butler's style of writing, and her philosophical underpinnings (I, for one, is not a big fan), it is hard to resist her central point: Just as gender (i.e. social norms and expectations attached to sexual classification) is a social phenomenon informed by normative assumptions open for questioning, our classifications of each other in terms of sex and sexuality are (collectively) chosen as a response to a normative assessments of surrounding conditions - natural as well as social – that may be questioned. Moreover, our perceptions of what natural and social circumstances there are and whether or not we can change them are often mistaken and, when correct, open for revision in light of, e.g., technological development.

This, of course, is not to deny that given a specific taxonomy of, say, sex, certain people will belong to sex-category A, B or C whatever they or other people may think about it – in that sense sex-category membership may well be an "objective" fact (I choose to square-quote this term mainly because it is used in so many, often not very clarified senses). In another (stronger) sense, however, such membership need not be objective (or as some would like to have it, "essential"), since (a) it may be possible for people to change class (e.g. by transsexual surgery), and (b) we may adopt another taxonomy with completely different classes without losing our ability to truthfully describe the world. On my read, what Butler's point boils down to is that this choice of taxonomy is not given by nature and rests on certain perceptions of circumstances and normative assumptions that may all be critically assessed. Now, among some queer theorists or queer theoretically inspired activists, it sometimes sounds as if this embedded normativity implies some sort of "anything goes" position. This is a mistake. Butler's as well as the queer theoretical basic take is social constructivist, according to which certain facts are determined by variable social factors (familiar examples of such facts are, e.g., the facts that a dollar bill is money, that some street has a certain name, that homosexuality is not a disease, and so on). This does not imply that there are no grounds for critically assessing those factors from a normative standpoint. E.g., it was such an assessment that eventually led to the 1973 abolishment of homosexuality as a diagnostic category in psychiatry. What it implies is, rather, that any suggestion as to what taxonomies to apply in order to create a basis for determining social facts, needs to be backed up by arguments, some of which need to be normative. Getting from that idea to the "anything goes" position would require a whole package of peculiar metaethics demonstrating that normative issues can in no way be assessed rationally. That, of course, would also include such positions on social justice normally wielded or assumed by gender or queer theorists. Any such metaethical theory would be highly controversial and, in fact, most developed metaethical theories today acknowledge that a warranted such theory needs to be able to account for the apparent possibility of rational argument on ethical and other normative issues.

2. The Third Sex/Gender Idea
Apparently, it is also such considerations of social justice that motivate recent suggestions of trying to introduce in contemporary Western societies a "third" gender or sex. The idea is, basically, that there are many people who suffer harm and injustices due to not fitting current socially endorsed taxonomies of gender, sex or sexuality and that this fact provides a reason for introducing a richer palette of categories in these respects. That is, it is not given that the addition of one extra category would be enough. In 1993, Anne Fausto-Sterling famously suggested that five sex-categories would be needed. Anthropological and sociological research has revealed that around the world and through history there are plenty of examples of socially endorsed gender/sex/sexuality taxonomies applying three, four, five or even more categories. The harm and injustices referred to include enforced genital surgery, enforced psychological conditioning, socio-economic discrimination, parent-, teacher- and peer-group degradation, and so on. The recent wave of queer theory has particularly held out the effects on the self-image, self-respect and social identity of people not fitting well into the established taxonomy.

Now, basically, I find the general tendency of this reasoning to be quite sound. How we choose to (publicly) categorise each other in a society needs to be based on sound ethical grounds and the cases highlighted by the effects on people of rigid sex/gender/sexuality taxonomies being endorsed by society reveal that there are ethical reasons for considering revisions of the current societal stance on this matter. In fact, these reasons seem to hold more or less no matter what exact minimally plausible basic ethical theory is applied – all such theories support the principle that we should not harm or force people, or treat them unequally, unless there is a good reason for it. And there seems to be no good reason for society to enforce any particular rigid sex/gender/sexuality taxonomy – in fact, most such enforcements seem to be arbitrary and based mainly on unreflected habit or custom. Note that, even with a very rich taxonomy, restrictive views in sexual ethics – such as the one advocated in official Roman Catholic doctrine – are possible to formulate. Sexual ethical views, however, are about which sex/gender/sexuality types in any taxonomy that can morally engage in what sexual acts. Ergo, they provide no reason for enforcing a public taxonomy that harm people – at best, they support the claim that a plausible such taxonomy should include the types they speak about. This, however, is compatible with having a taxonomy that contains many other categories as well.

3. Criticism of the Third Sex/Gender Idea
However, plausible as this direction of thought may seem, it still rests on the assumption that a good and just society should enforce some public taxonomy of sex/gender/sexuality categories. I agree that such a need may seem apparent as long as we avoid looking beyond the attitudes and needs of people created by the fact that our societies enforce such taxonomies. As long as such an enforcement is the case, people will have the need of adjusting to the fact that their society recognizes and endorses certain categories of people in terms of sex, gender and sexuality, but not others. However, this actually exposes a fundamental weakness of the third sex/gender suggestion – namely that whatever taxonomy is publicly enforced, some people will be forced to accommodate to it in spite of not really fitting any category. That is, the third sex/gender idea seems to be vulnerable to similar criticism as the one motivating this idea in the first place.

This vulnerability is due to the feature of the third (fourth, fifth...) sex/gender idea that it shares with the traditionally Western taxonomy of two sexes/genders the property of being a classic qualitative taxonomy, built on the binary notion of membership/non-membership of some of a number of classes (sets). As a consequence, if you don't fit into any of the classes, you basically have no sex/gender.

4. The Idea of a Continuous Quantitative Theory
The basic contrast between the just described type of taxonomy and a continuous quantitative theory is the following. The classic qualitative taxonomy is made up by a number of qualitatively defined sets (in the technical sense). If an entity meets the criteria for being a member of some such set, it is such a member and if not, it isn't. Another way of expressing this is that, according to this sort of taxonomy, the variable sex/gender/sexuality has a finite number of so-called attributes (or values). A continuous quantitative theory, in contrast, relate entities not to the membership/non-membership of a collection of sets, but to what values they attain on a number of continuous variables or dimensions. These variables/dimensions may (and in the present case, should – see below) be manifold, and (most important), they have an infinite number of attributes/values. The easiest way of expressing this is to say that, for any such variable, a random entity may attain any value between two whole numbers, such as 0 and 1 (or 0 and 100, or....). An example of continuous variables are, e.g., the various established scales for temperature. 

Now, to have a theory of sex/gender/sexuality built according to this blueprint, we obviously need to select and describe what variables are to be included and what determines what values various entities attain on these variables. If we are going to avoid the objection against the classically qualitative sex/gender/sexuality taxonomies, as indicated, the number of such variables need to be quite high. Moreover, it is quite likely that most of these variables will describe micro- or sub-structures of the human body or behavioural repertoire, rather than those sorts of "middle-sized" features focused on in the traditional type of taxonomies. To specify what determines the value that an entity attains on any such variable, some qualitative ingredients are needed – just as when, on the Cecius scale, we define 100° as the point to which, e.g., a certain amount of mercury contained in a tube of a certain perimeter rises when this tube is placed in boiling water in a certain atmospheric pressure for a minimal amount of time. However, we need not go that far – we can simply say that the value on another (or several other) continuous variable(s) determines the value of the variable we focus on – just as the average speed of molecules of a substance determines its temperature.

So, let us take the example of sex to begin with. The starting point is that sex is to be seen not as a collection of sets or a discrete or binary variable, but as a continuous one. Let us therefore first assume: Sex = the property of attaining a value on the variable S [0.....1] – where the block parenthesis describes the range of values possible for this variable.

It now follows that there is an infinite number of sexes that a being may have. One may be 0.23, another 0.00000043, yet another 0.7 – and so on. This, however, tells us nothing about what determines such values. So let us consider some seemingly plausible suggestions of the types of variables that may perform this function. What sex a being has depends on (among other things):

a) The size and shape of certain cell-types assembled in (and inside) the genital area (examples would be, e.g., the presence of a uterus or a penis or a clitoris of a certain size and shape, but less clear examples also have ample room to determine what sex one belongs to).
b) The production-level of certain basic bodily substances (hormones, various gene-products)
c) The presence of certain combinations of genetic components (here, we may also take into account how much these components are present and activated in relation to the entire cell-mass).

I'm sure that several other variable types may be thought of, but these three seem to be obviously related to our common sense notions of what sex-membership may be about. Remember also that these are variable types – under each of them we may have a very large number of actual variables, the values of which influence the sex of a particular being. So, already here – the theory is quite rich, flexible and full of nuances. In any case, to have a complete theory, one thing is obviously missing: We need some sort of formula for how values on the variables under a)-c) in various combinations translate to a value on the variable S. One way of starting to approach this issue would be to postulate the following:
If a being attains the value of 0 on every variable influencing the value of S, then this being's value on S = 0.

If a being attains the value of 1 on every variable influencing the value of S, then this being's value on S = 1.
That is, in these two cases, the being's sex is 0 and 1 respectively. Other than that, however, I will not here propose any further specification. It suffices to note that there is an infinite number of values of S onto which various combinations of values of the relevant variables in between the two extreme cases mentioned above may be mapped.

On the basis of a theory of sex of this type, we may then go on to formulate similar theories of gender and sexuality. So, in the case of gender, we would have a continuous variable where sex-membership and various behavioural and attitudinal variables determine what gender a being has. In the case of sexuality, both the sex and gender theories may be combined with variables regarding things as erotic attraction, tendency to fall in love, willingness to engage in sexual activity, and so on, in order to determine values on a continuous quantitative variable of sexuality. When we're done, a person's answer to questions in this are may look like this (all these numbers are here taken out of thin air, of course):
What sex are you? – 0.4371
What gender are you? – 0.1435
What is your sexual orientation? – 0.867

Moreover, every person will have a belonging and an identity in all of these dimensions! 

5. Objections and Reflections
Obviously, according to the theory just outlined, no one will be a man or a woman, no one will be masculine or feminine and no one will be hetero-, bi- or homosexual. Such crude categories may be linked to the theory by those who find it important, though, by arbitrarily selecting certain intervals of the values on the variables of sex, gender and sexuality. However, the theory does not imply any such linkage to be either true/correct or false/incorrect – these are additions to the fabric of reality regarding sex, gender and sexuality that are not themselves parts of that reality. They are, at best, linguistic tools that some people may feel important to use. But, it may be asked, isn't this a substantial cultural cost?

The answer to this question depends on how it is framed. First, remember that the continuous quantitative theory has a major advantage from an inclusion, identity and recognition perspective: there is a place for everyone, just as they are. Second, remember that I have never proposed that society should impose this theory, or that we should switch to it in one go. I acknowledge that our perception of our sex, the social roles and ideals we attach to it and our sexual leanings and preferences are important ingredients in life and, since the rigid qualitative taxonomies in these areas have been around for so long, just casting them off would probably be painful and difficult to achieve in a coordinated manner. However, these are questions about method, not about whether or not, if we managed to start looking at the world through the spectacles of the continuous quantitative theory, would have a better world. I claim that we would, at least in the respect that our culture would be more inclusive and fair. How we get there is a practical question that the theory by itself does not answer.

Also, remember that all moral ideas today entertained with respect to sex, gender and sexuality may be readily formulated on the basis of the continuous quantitative theory, they just have to be reformulated a bit. So for example a moral ban on sex between adults and children would simple be expressed as the ban on the acting out of sexuality x – y (where "x –y" signifies the interval of values on the sexuality variable capturing the preference of engaging in the behaviour that is banned). In laws, education, et cetera, we may want to express it in more simpler terms, using crude category terms such as "child" and "adult", but as mentioned that is perfectly possible to do on the basis of the continuous quantitative theory. But, in fact, the more exact formulation would in fact make more clear what's so wrong about sexual molestation of children – since the values of the variables determining this sexuality would describe in stark detail what is involved in such activities.

However, let me share this guess. If we were successful in changing our theoretical-cultural spectacles in the way indicated, I suspect that many norms and values surrounding sex, gender and sexuality that we hold in a more or less habitual or culturally inherited way would actually start to lose their attraction to many people. For example, the idea that men shouldn't really wear bras, women's dresses, and so on in public (a very common idea, in spite of the populatrity of drag shows, Dame Edna and such). This since, I suspect, when formulating this opinion through our new spectacles, we see more clearly that, at best, this is a phenomenon among many that happens not to agree so well with our personal aesthetic preferences. This is no different to, e.g., food we happen to not like, houses or streets we find ugly or repulsive, and so on. There is nothing deeper than that and we are helped to see that by the theory, since it doesn't trick our intellect with apparent (but false) opposites, like "man" and "women's". This, of course, is just one example of very many.

Sunday, 1 May 2011

Bad Arguments on All Sides in the European Embryonic Stem Cells Legal Circus, part 2

So, this is the second part of a post begun a few days ago. I'll repeat the bare bones of what it's all about:
In March, Nature News reported, a judge at the European Court of Justice (the decisions of which are binding for all EU member countries) named Bot (forename unknown) brought forth the proposal that patenting embryonic stem cell lines would be unlawful, since they have been produced through a process involving the destruction of embryos. Thus, the judge argued, (as reported by Nature News) "they are tantamount to making industrial use of human embryos", which (quoting the judge) would be contrary to "ordre public and morality". The proposal follows a motion made by Greenpeace to repeal a patent application made by German researcher Oliver Brüstle. The European court is expected to make a ruling "in a couple of months".
In my former post, I analysed the proposal of ECJ judge Bot in quite negative terms – concluding it to be a covert attempt to smuggle into European case law legally unsupported and controversial views on the moral status of embryos. However, I also stressed that the many faults of that proposal did not imply that the idea of patenting embryonic stem cell lines is a very good one. To get to the reasons why that is so, I'll now have a look at the response to Bot's proposal from the embryonic stem cell research crowd.

April 27, BBC reported that leading European researchers in the embryonic stem cell field have protested against judge Bot's proposal in a letter to Nature. According to this report, the researchers make three arguments against the proposal – two of a pragmatic nature, and one factual. The pragmatic arguments are that a patent ban on the basis suggested by the judge would imply a disparaging moral message about embryonic stem cell researchers and their activities, and that the ban would undercut investor interest in research on stem cell based therapies, which is now entering the stage of clinical trials. I'll get back to these arguments in a moment.

 The factual argument is that, contrary to what the judge seems to assume, therapeutic procedures involving the use of embryonic stem cell lines would in fact not imply any "industrial use of human embryos". This since the lines are already in existence and that, therefore, all that is needed for the continued use of them is the proliferation of the cell lines themselves. For sure, once upon a time, a number of embryos were destroyed to create these lines, but once that was done any further destruction of embryos is unnecessary. Now, while this argument seems to be sound and valid as regard the particular patent application of Brüstle, it is limited as a response to the principled claims made by judge Bot in his proposal. What the factual argument implies is that this proposal may not apply to Brüstle's application and possible other applications for about 100 cell lines already in existence. However, if the proposal was to pass the ECJ, it would seem to apply to all future attempts to secure patent protection in conjunction with the launching of attempts to produce new embryonic stem cell lines. That is, the factual argument may perhaps get Brüstle and a number of other potential patent applicants in the stem cell field off the hook, but it would allow judge Bot's main idea that producing stem cell lines through the destruction of embryos equals the exploitation of mass murder for organ trafficking purposes to pass into European case law. So, let's move over to the two pragmatic arguments.

Both these arguments seem to me rather weak as they stand. First, if the judge were right about the moral status of embryos according to European law (which he is not, see part 1, but that is not argued by the researchers), sending a disparaging moral message about embryonic stem cell researchers would not seem misplaced. In other words, this argument presumes an argument to the effect that Bot's claim regarding the moral and legal status of embryos is mistaken, but no such argument is given by the researchers.

Second, it is highly debatable if it is actually true that patenting of stem cell lines is either a necessary or a sufficient form of commercial protection for private investors to be attracted to funding the development of stem cell based therapies. What these investors need are patents guaranteeing the exclusive commercial rights to the product ensuing from such research and development, that seems to be true. However, while patenting of cell lines might provide such protection in some cases, they need not do so in all cases – it all comes down to what the product turns out to be. If the product involves using said cell lines, there will be protection. However, the product may also turn out to be a procedure not involving the use of any cells at all (rather, these cells have been a research tool for discovering mechanisms which the product – e.g. a drug – is able to manipulate). More important, even when the product in fact would involve using the cell line in question, the cell line is not identical to the product – the product is the entire procedure in which the cell line is used. In other words, what is necessary is to patent that procedure (insofar as it meets the criteria for European patent protection). This, however, is compatible with having the cell lines themselves unprotected, and thus freely available for use by others for other purposes, such as important basic research.

This brings me to why I actually strongly oppose the idea of allowing patents for all stem cell lines – be it embryonic or adult. First, stem cells are not inventions, they are naturally occurring phenomena – just as (non-synthetic) genes are. The mere fact that the cells have been moved from their original location inside an embryo or the body of an adult doesn't change that. If I move a flower found in the forest into my garden, the flower has not thereby been transformed into a human invention. I may claim, of course, that my garden or the entire flowerbed is my invention – but that does not imply anything about the flower itself. Likewise, if I happen to have developed a unique method for moving the flower, that method is my invention, but the flower is not, wherever it happens to be located as a result of using the method. So, once again, in analogy, while it makes sense to allow patents for various procedures involving stem cells, or whereby stem cells may be transformed into useful products, this does not imply that the patenting of the cells themselves is warranted.

In addition, as we have seen, whatever procedures that may be coming out of stem cell research, it can have its (pragmatically) necessary commercial protection without having any cells or cell-lines patented (unless, of course, all processes are already in the public domain). In fact, granting patents for cells or cell-lines would, in fact, be a disservice both to society and to medical research. Just as we have seen so many nasty examples of in the case of patent on genes in the US, awarding commercial exclusivity rights with regard to "stuff" rather than processes and procedures leads to the result where research and innovation is halted rather than stimulated. The only benefit of such patents befall those individual parties owning the patent and while it may be understandable that, as a friend of mine put it, potential landowners endorse the idea that they may bar parts of the commons for their own private enjoyment, it is hard to see why society should allow – let alone assist – them in realising that ambition.

This brings me to my final point, which is connected to the fact that the ones that seem most enthusiastic about the idea of patenting cells and cell-lines are themselves belonging to a group – representing a field – that I just claimed have the most to loose from having such patents granted. It is actually rather strange to have esteemed scientists and research institutions cheering at the notion of making (a) medical research more difficult and expensive, and (b) thus less likely to produce new breakthroughs (using the resource of stem cells and cell lines). Perhaps they have been blinded by the false idea that cell or cell-line patents are a necessary evil if innovative therapies are to ensue? Or is it perhaps, that they happen to be sitting on some of these precious cell-lines and have let the prospect of making a buck shield their mission as scientists? The gene patent morass in the US has for sure exposed enough of the latter, but there is still time for the European stem cell science community to demonstrate that they are, in fact, better in that respect.