Presumption

PART I


The Law is serious business. The laws, voted in force by the legislative of a sovereign state, are unique to humans. Most other beings live by the laws of nature. We, humans, in all incarnations of civilization though the ages, have introduced this extra layer which governs our actions, our interaction, our daily lives, and punishes those who disobey any one of its charters.

By definition, any law curtails personal freedoms. Yet, the purpose of laws, in a free society, is to ensure Liberty (and Justice for all). Justice is a concept far removed from the Law. What is Just, is subjective. The Law is faceless and takes no sides. A difficult balancing act. Although we call our system of laws "the System of Justice", the subjective concept of what is Just cannot be considered as an overriding factor in determining the letter of the law, because one law cannot please everyone. That is why the law focuses on keeping individuals and society as a whole safe, productive, and stable, preserving personal freedoms and a society's concept of Liberty intact.

Those who sing the accomplishments of the spirit in the Golden Age of Ancient Athens often fail to point out that the Athenians, in order to reach Pericles, had to first pass through the years, and Draconian Laws, of Dracon. Those who marvel at the thinking gifted to us by Socrates, preserved for us by Plato, fail to include in their accounts of the greater picture of that society the fact that the Athenians, applying their law, put Socrates to death.

The matter of passing laws has never been a simple, or one-dimensional, task, and it is the laws that determine the quality of any society. The most important stage in the process of making a law is not its inception, nor is it its implementation. It is the stage in between where it's worth, applicability and viability are debated, before the law is enacted.

Therefore, it would be safe to suppose that the debate by which laws are created and passed is a good representation of the level of responsibility the quality of thought and the value of citizenship in any society.

PART II


A debate raged in the Greek language blogs the last several days which attempted to discuss a new proposed law in Greece.

The law of Presumed Consent

- By that law, all citizens in Greece would be presumed to be organ donors.

- In order for a citizen to be excluded and not be considered an organ donor, that Citizen would have to make a formal written statement to a government office, with his signature authenticated at the local Police Station.

- Relatives of the potential donor would, under the law, have no say in the matter, if their relative was in a coma and about to be used as a donor.

- Such a law would negate the need or requirement of volunteering and would replace the Organ Donor Card with the Presumed consent of all, barring their written and signed disagreement.

The Goal of the law was to increase the number of donors, thus reducing the length of waiting lists.

Greek blogs would, of course, have no say in what the legislative would do with the proposal, but nevertheless proceeded in their heated debate in the comments below fervent articles. A debate that, in the microcosm of the blogs, was to give an indication of the position of Greeks on the issue, as well as the quality of debate in Greek society. Bloggers are of course not an accurate representation of Greek society, as they can afford computers and internet connections, and have the know-how to use computers and the presumed education to partake in debate. The picture that would emerge from the Greek blogs would therefore be representative of only a specific portion of the public.

Just as there is a certain process in evaluating laws, so there is also a certain process in debate, if either are to be productive. In the case of the proposed law of Presumed Consent that was before us, the processes would be expected to run roughly as follows:

The case in hand would be evaluated in steps of importance, starting with the most important aspects and, as each aspect is accepted, we would move down the list of questions. It would be, after all, silly to debate aspects of a law that at a previous, higher level of importance, was already proved questionable.

As with any proposed law, before proceeding any further, one would test its goal. Is the goal feasible?

There is no point proceeding further in debate before establishing that it is possible for the goal to be reached.

We cannot predict the future, therefore, to get a bearing on this question we look to see any available data on similar laws in force elsewhere.

- The data adds an important ripple:

Most of the countries that already have such a law do not override the wish of the relatives of the dying donor. One country does. This introduces the concept of the Soft-Opt-Out Law and the Hard-Opt-Out Law.

-The data shows that no significant improvement was made in any country as a result of the law. This is a negative piece of data, but nevertheless it is not prohibitive, as one may always succeed where others failed.

Therefore, having tested the feasibility of the goal of the law, we decide to make a note that we must eventually choose between Soft and Hard Opt-out, and we proceed.

Next, before any debate begins, the law must pass another group of points of scrutiny:

- Is the law unconstitutional?

- If it is within the parameters of the Constitution, does it conflict with any other laws?

- If it is within the parameters of the Constitution and it does not conflict with any other laws, what Freedoms may it restrict, and what obligatory actions may it impose that they in turn may interfere with personal freedoms, and, if so, what is the level of acceptability?

In the particular law, the point of constitutionality seems to be passable, but not everyone is sure. Further analysis is needed.

On the point of possible conflicts with other laws, no legal research has yet come to light.

The law would restrict the Freedom of relatives to treat their loved one in the manner in which they would wish, be it for reasons religious, philosophical, traditional, or emotional (in the case of the Hard Opt-Out version).

The law would restrict the Freedom of the individual to enjoy one's own freedom of opinion in silence, by forcing the individual to reject the law at a personal level in a signed document.



At this point we are entering troubled waters.

Other than the unfinished constitutional analysis and the non-existent test of conflicts with other laws, we are faced with a dilemma which directly speaks to fundamental freedoms of the individual, in that:
- One's private and personal opinion is presumed by the State,
- One is forced to publicly declare one's held beliefs and publicly declare one's opposition to the presumption of the State.



So far in the course of our testing we have produced the following conclusions:

1. The same law has not yielded the desirable results elsewhere,
2. The law must be revisited to confirm Soft Opt-Out or Hard Opt-Out,
3. Analysis of its constitutionality must be verified,
4. Test of possible conflict with other laws must be conducted,
5. The law interferes, by presumption, with the fundamental personal freedom of opinion,
6. The law interferes, by requirement of signed descent, with the fundamental right to privacy.

It is now obvious that the debate cannot but halt, and the above points must be visited and clarified before there is any reason to begin a debate.

It is also obvious that even if the above six points were to be satisfied, and the debate was to proceed, there are still important issues to discuss, such as:
whether:
- The Medical System of Greece,
- The Organization of the State of Greece,
- The Doctors, Medical staff, and People of Greece,
- The Facilities in existence in Greece,
possess the fundamental requirements to implement the law efficiently and with integrity.

One would also hope it is patently obvious that the possible benefits to society that the law provides have not yet been questioned in this process of testing for a simple reason:

- The presumed benefits to society can only be the motive behind a law, not its justification.

Advancing the subjective view of benefit to society at the expense of objectivity of legal and constitutional points of order, would be the tell-tell sign of irresponsibility, and, far worse, of the dictatorial methods that in the past, around the world, far down that road, brought us Fascism, Nazism and all sorts of totalitarian regimes. It is not the law itself that could be termed totalitarian per se, but the principles of implementation it represents and the road it chooses to go down.

PART III


So, how did the Greek Blogs fare in their debate?

The above process was disregarded, or, never visited. The presentation of blog articles and the debate in the comments under each article focused on the fervent support of benefits to society and sparse but heated descent based broadly on personal fears and urban legend.

The basic arguments were that:
1. We must support the law because of the benefits it will bring to society and to the common good, regardless of opposition and at the expense of other considerations  (like, for example, the process and considerations above),
2.  We must not support the law because it curtails freedoms, it will allow unscrupulous profiteering, Greece is not competent to support it, and other arguments based in their majority on personal opinion.

The permeating characteristics of the debate were that there was no actual debate. 

The landscape consisted of statements, made by one, that were flat-out rejected by the other without explanation, in either direction. An accurate demonstration of the qualities (or lack thereof) which public opinion outside Greece attributes to contemporary Greek society.

At a personal level of involvement, the writer of this treatise focused on two particular blogs.



Blog "A", published two posts on the matter and received well over one hundred comments. The titles of the blog articles were informing of the subject, such as "We will all be organ donors", and the articles were, predictably for that particular blog, stale in formulaic statements, but overall tried to be objective -though, decidedly supporting the law.

When several commentators, including myself, pointed out their descent, the host of the blog, throughout the over one hundred comments, used variations of the same, one, basic rebuttal:

"We must accept loss of freedom in favor of the greater good, how can you not accept how beneficial the law is, your organs are garbage after you die, so why want them?" (yes, the word garbage was actually used, in Greek)

To each one's own of course, everyone has a right to their opinion and their chosen level of discussion, and thankfully these people's opinion has no direct bearing on the legislative of the country, albeit it is frightening that it may represent the national norm.

That same host, later, commenting in Blog "B", said: "I think I will write down all that was heard in my blog and elsewhere (against the proposed law -ed.). It is very funny. We will laugh."
And there we witness a level of intellect which deems it appropriate to publicly state that one will laugh at the thoughts of others opposed to theirs, which were offered in discussion in one's blog, because they are funny.

Blog "B" was another matter. That writer's treatment of the subject and his conduct was a profound disappointment to me that produced a sense of private loss, for I had the utmost personal respect for that writer.

The title that writer chose for the first of three blog posts was leaving no room for doubt, or debate: "At last, a correct proposal of law for transplants". That title, the text of the posts and that writer's responses to comments, and overall conduct in the comments sections,  left no room, as already stated, for doubt or debate. If we were to choose to read or comment in that blog we should be sure to know that we are listening to the Word of the burning bush on mount Sinai.

The arrogance, narrow-mindedness and inability to come-up with any form of response other than flatly ignoring opposing points of view was best demonstrated in one particular response he came up with in support of the proposed law:

"Doctors will never go against the relatives wishes".

To suggest that it is in the interests of society to pass a law because no one will obey it is, to say the least, bizarre...
When questioned on this point the writer ignored the questions. When pressed for an answer he retorted that the law would be good to deal with relatives who could not make a decision, and to deal with those who have no relatives. What next? I ask. Special laws for the mentally retarded? the homeless? the gypsies, the Jews? He had also avoided to discuss, in any level of substance, any of my own references to the law's interference with personal freedoms and what I viewed as its totalitarian nature.

Again, so far, so good, it is his blog, his opinion, his space, he is more than entitled to it, as we are entitled to our assumptions based on the strength of his presentation and arguments. 

But then came the pièce de resistence.

A gentle, polite man, commented and said that he gave one of his kidneys to his son because he needed it and the waiting list was too long. That good man admitted that he is biased because of his own experience and ordeal, and said that, biased as he was, he would support the law. His was probably the one argument that, beyond whether we agreed with it or not, demanded the most respect, not only for his predicament but for the consciously Just phrasing of his thoughts.

The writer of Blog "B", in whose blog that gentle man made the comment, jumped on it like a child on a chocolate cake.

He exclaimed that the man's comment "says everything" (in support of the proposed law). Then he proceeded to discuss a possible rule that would deem those involved in road accidents as automatic organ donors, and he put the cherry on top by employing what I see as  banal sarcasm in expressing his fear that even on that road accident rule, we will hear descent, defending personal freedoms.

The desire of Blogger "A" to laugh at the thoughts of his opponents is surpassed only by the self-righteous sarcasm of Blogger "B" and his self-justification, of dismissing concerns on the Hard aspect of that Opt-Out version of the proposed law,  because no doctor will obey it.



AFTERWORD


Last December another debate raged about a blogger who had written the abhorrent statement that "Hitler should have finished the job". An apparent majority of Greek Bloggers took that Blogger's side by professing it was alright to have made that statement, because that blogger was under stress caused by looking at photos from Gaza.

I fear that if the Greek Blogs are any measure of the level of debate, and level of thought, in Greek society today, that society, in the context of their position in the Western World, has a lot of food for thought, and a great deal of soul searching ahead.