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Ius Comparatum – Global Studies in Comparative Law

Lara Khoury
Adelle Blackett
Lukas Vanhonnaeker Editors

Genetic Testing and


the Governance
of Risk in
the Contemporary
Economy
Comparative Reflections in
the Insurance and Employment Law
Contexts
Ius Comparatum – Global Studies
in Comparative Law

Volume 34

Series Editors
Katharina Boele-Woelki, Bucerius Law School, Hamburg, Germany
Diego P. Fernández Arroyo, Institut d’Études Politiques de Paris (Sciences Po), Paris,
France
Founding Editors
Jürgen Basedow, Max Planck Institute for Comparative and International Private
Law, Hamburg, Germany
George A. Bermann, Columbia University, New York, USA

Editorial Board Members


Joost Blom, University of British Columbia, Vancouver, Canada
Vivian Curran, University of Pittsburgh, USA
Giuseppe Franco Ferrari, Università Bocconi, Milan, Italy
Makane Moïse Mbengue, Universitè de Genève, Switzerland
Marilda Rosado de Sá Ribeiro, Universidade do Estado do Rio de Janeiro, Brazil
Ulrich Sieber, Max Planck Institute for Foreign and International Criminal Law,
Freiburg, Germany
Dan Wei, University of Macau, China
As globalization proceeds, the significance of the comparative approach in legal
scholarship increases. The IACL / AIDC with almost 800 members is the major
universal organization promoting comparative research in law and organizing con-
gresses with hundreds of participants in all parts of the world. The results of those
congresses should be disseminated and be available for legal scholars in a single
book series which would make both the Academy and its contribution to compar-
ative law more visible. The series aims to publish the scholarship emerging from the
congresses of IACL / AIDC, including: 1. of the General Congresses of Comparative
Law, which take place every 4 years (Brisbane 2002; Utrecht 2006, Washington
2010, Vienna 2014, Fukuoka 2018 etc.) and which generate (a) one volume of
General Reports edited by the local organizers of the Congress; (b) up to 30 volumes
of selected thematic reports dealing with the topics of the single sections of the
congress and containing the General Report as well as the National Reports of that
section; these volumes would be edited by the General Reporters of the respective
sections; 2. the volumes containing selected contributions to the smaller (2-3 days)
thematic congresses which take place between the International Congresses (Mexico
2008; Taipei 2012; Montevideo 2016 etc.); these congresses have a general theme
such as “Codification” or “The Enforcement of Law” and will be edited by the local
organizers of the respective Congress. All publications may contain contributions in
English and French, the official languages of the Academy.

More information about this series at http://www.springer.com/series/11943

Académie Internationale de Droit Comparé


International Academy of Comparative Law
Lara Khoury • Adelle Blackett •
Lukas Vanhonnaeker
Editors

Genetic Testing and the


Governance of Risk in the
Contemporary Economy
Comparative Reflections in the Insurance and
Employment Law Contexts
Editors
Lara Khoury Adelle Blackett
Faculty of Law Faculty of Law
McGill University McGill University
Montreal, QC, Canada Montreal, QC, Canada

Lukas Vanhonnaeker
Faculty of Law
McGill University
Montreal, QC, Canada

ISSN 2214-6881 ISSN 2214-689X (electronic)


Ius Comparatum - Global Studies in Comparative Law
ISBN 978-3-030-43698-8 ISBN 978-3-030-43699-5 (eBook)
https://doi.org/10.1007/978-3-030-43699-5

© Springer Nature Switzerland AG 2020


This work is subject to copyright. All rights are reserved by the Publisher, whether the whole or part of the
material is concerned, specifically the rights of translation, reprinting, reuse of illustrations, recitation,
broadcasting, reproduction on microfilms or in any other physical way, and transmission or information
storage and retrieval, electronic adaptation, computer software, or by similar or dissimilar methodology
now known or hereafter developed.
The use of general descriptive names, registered names, trademarks, service marks, etc. in this publication
does not imply, even in the absence of a specific statement, that such names are exempt from the relevant
protective laws and regulations and therefore free for general use.
The publisher, the authors, and the editors are safe to assume that the advice and information in this
book are believed to be true and accurate at the date of publication. Neither the publisher nor the authors or
the editors give a warranty, expressed or implied, with respect to the material contained herein or for any
errors or omissions that may have been made. The publisher remains neutral with regard to jurisdictional
claims in published maps and institutional affiliations.

This Springer imprint is published by the registered company Springer Nature Switzerland AG.
The registered company address is: Gewerbestrasse 11, 6330 Cham, Switzerland
Preface and Acknowledgment

From July 22 to 28, 2018, the 20th General Congress of the International Academy
of Comparative Law (IACL) was held in Japan, in the town of Fukuoka on the
beautiful southern Island of Kyūshū. For this occasion, Lara Khoury and Adelle
Blackett had the privilege of serving as general rapporteurs for a session in Medical
Law devoted to a discussion of the legal aspects of genetic testing regarding
insurance and employment.
Progress in genomic medicine holds the promise of enabling genetic risks to be
identified and treatment of diseases to be individually tailored to the needs of the
patient. However, the advances may lead to increased, and sometimes
underestimated, risks of privacy infringements and of discrimination. The risks are
particularly acute in the employment and insurance contexts.
To gain insight into these risks and regulatory approaches in different jurisdic-
tions worldwide, we devised a two-part questionnaire. The first part dealt with
existing generalist frameworks for regulating genetic testing in the insurance and
employment contexts. It sought to enable rapporteurs to consider regulatory
approaches in privacy law and antidiscrimination law, at the national and at appro-
priate regional and international levels. The second part of the questionnaire enabled
rapporteurs to consider the efficiency of the specific rights and obligations governing
the insurance and employment contexts, and whether they could effectively recon-
cile different stakeholders’ interests.
Colleagues from fifteen (15) jurisdictions answered the questionnaire and seven
(7) colleagues, including the two general rapporteurs, participated in a lively panel
discussion on the challenges posed by genetic testing in the contexts of insurance
and employment in a variety of countries as well as the solutions proposed, if any, in
these jurisdictions. We wish to express our appreciation to each of the contributors to
this collective project. This book is based primarily on the revised written contribu-
tions of several contributors to the IACL session, alongside individually solicited
chapters.
We thank the International Academy of Comparative Law and its President and
Secretary General, Professor Diego P. Fernández Arroyo, for the invitation to

v
vi Preface and Acknowledgment

undertake this report. We also thank the Association québécoise de droit comparé
and its President Nathalie Vézina, for their support. This volume has come to fruition
thanks to the support of a sterling team of research assistants who we are pleased to
acknowledge: Dr. Kathleen Hammond, Dr. Liam McHugh-Russell, Ms. Lian
Francis, Ms. Morgan McGinn, Ms. Emily Painter, Ms. Alexandra Klein, and Ms.
Jeanne Mayrand-Thibert. Finally, we express our gratitude to the institutions and
funding bodies that made our participation in the IACL Congress and the preparation
of this manuscript possible: McGill University’s Faculty of Law and its Dean Robert
Leckey, the Canada Research Chair in Transnational Labour Law and Development,
the Fonds de recherche du Québec, Société et culture (Research Team Support
Programme), and McGill University’s Paper Presentation Programme. This research
was undertaken in the institutional contexts of the Labour Law and Development
Research Laboratory (directed by Adelle Blackett) and the McGill Research Group
on Health and Law (co-convened by Lara Khoury).

Montréal, QC, Canada Lara Khoury


Montréal, QC, Canada Adelle Blackett
Montréal, QC, Canada Lukas Vanhonnaeker
10 January 2020
Préface et remerciements

Du 22 au 28 juillet 2018, le 20e Congrès général de l’Académie internationale de


droit comparé (AICL) s’est tenu au Japon, dans la ville de Fukuoka sur la magnifique
île méridionale de Kyūshū. À cette occasion, Lara Khoury et Adelle Blackett ont eu
le privilège de siéger en tant que rapporteurs généraux lors de la session portant sur le
droit médical consacrée à un débat sur les aspects juridiques des tests génétiques en
matière d’assurance et d’emploi.
Les progrès de la médecine génomique laissent entrevoir la possibilité d’identifier
les risques génétiques et d’adapter individuellement le traitement des maladies aux
besoins du patient. Toutefois, les progrès réalisés peuvent entraîner des risques,
parfois sous-estimés, d’atteinte à la vie privée et de discrimination. Les risques sont
particulièrement graves dans les contextes de l’emploi et de l’assurance.
Afin de mieux comprendre ces risques et les approches juridiques de différents
ressorts à travers le monde, nous avons conçu un questionnaire en deux parties. La
première partie traitait des cadres généralistes existants visant à réglementer les tests
génétiques dans les domaines de l’assurance et de l’emploi. Il visait à permettre aux
rapporteurs d’envisager des approches réglementaires au sein des normes juridiques
portant sur la protection de la vie privée et sur la lutte contre la discrimination, aux
niveaux national et régional et international appropriés. La deuxième partie du
questionnaire a permis aux rapporteurs de se pencher sur l’efficacité des droits et
obligations spécifiques régissant les contextes de l’assurance et de l’emploi et de
déterminer s’ils pouvaient concilier efficacement les intérêts des différentes parties
prenantes.
Des collègues de quinze (15) ressorts ont répondu au questionnaire et sept
(7) collègues, dont les deux rapporteurs généraux, ont participé à une table ronde
animée sur les défis posés par les tests génétiques dans le contexte de l’assurance et
de l’emploi dans divers pays et sur les solutions proposées, le cas échéant, dans ces
ressorts. Nous souhaitons exprimer notre reconnaissance à chacun des contributeurs
à ce projet collectif. Ce livre est basé principalement sur les contributions écrites
révisées de plusieurs des contributeurs à la session de l’IACL, aux côtés de chapitres
sollicités individuellement.

vii
viii Préface et remerciements

Nous remercions l’Académie internationale de droit comparé ainsi que son


président et secrétaire général, le professeur Diego P. Fernández Arroyo, de
l’invitation à préparer ce rapport. Nous remercions également l’Association
québécoise de droit comparé et sa présidente, Nathalie Vézina, de leur soutien. Ce
volume a été réalisé grâce au soutien d’une excellente équipe d’assistants de
recherche, que nous remercions chaleureusement : Dre Kathleen Hammond, Dr
Liam McHugh-Russell, Mme Lian Francis, Mme Morgan McGinn, Mme Emily
Painter, Mme Alexandra Klein et Mme Jeanne Mayrand-Thibert. Enfin, nous
exprimons notre gratitude aux institutions et aux organismes de financement qui
ont rendu possible notre participation au Congrès de l’IACL et la préparation de ce
manuscrit : la Faculté de droit de l’Université McGill et son doyen, Robert Leckey ;
la Chaire de recherche du Canada en droit transnational du travail et développement,
le Fonds de recherche du Québec, Société et culture (Programme de soutien aux
équipes) et le programme « Paper presentation grant » de l’Université McGill. Cette
recherche a été entreprise dans les contextes institutionnels du Laboratoire de
recherche sur le droit du travail et le développement (dirigé par Adelle Blackett) et
du Groupe de recherche en santé et droit de McGill (codirigé par Lara Khoury).

Montréal, QC, Canada Lara Khoury


Montréal, QC, Canada Adelle Blackett
Montréal, QC, Canada Lukas Vanhonnaeker
le 10 janvier 2020
Contents

Part I General Report


Legal Aspects of Genetic Testing Regarding Insurance
and Employment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Lara Khoury, Adelle Blackett, and Lukas Vanhonnaeker

Part II Domestic Studies


Legal Aspects of Genetic Testing Regarding Insurance in Belgium . . . . . 71
Cindy Cornelis, Thierry Vansweevelt, and Britt Weyts
Analysis of the Use of Genetic Testing in Insurance Policy Contracts
and Labour Relations in Brazil . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 97
Mario Viola de Azevedo Cunha and Leonardo Heringer Matos
Genetic Privacy in Employment and Insurance in Canada . . . . . . . . . . . 115
Hilary Young and Colleen Thrasher
Legal Aspects of Genetic Testing Regarding Insurance
and Employment in Cyprus . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 129
Theodoros Trokanas
Czech Report on Genetic Testing for Employment and Insurance . . . . . 153
Filip Křepelka
The Prohibitions Against Genetic Discrimination in Estonia . . . . . . . . . . 179
Kärt Pormeister
L’utilisation des tests génétiques dans le domaine de l’assurance en
droit français et européen : une affaire d’assurance et de politique
publique . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 193
Christian Byk

ix
x Contents

Regulating Genetic Data in Insurance and Employment: The Italian


“Upstream” Way . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 221
Marta Tomasi and Carlo Casonato
Genetic Testing and the Governance of Risk in the Contemporary
Economy of Japan . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 237
Yuichiro Sato
Legal Aspects of Genetic Testing Regarding Insurance
and Employment in Poland . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 249
Monika Wałachowska
Regulating the Use of Genetic Testing by Insurers and Employers in
the Province of Quebec: Is the Genetic Non-Discrimination Act Really
Necessary? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 269
Yann Joly and Gabriel Marrocco
Genetic Analyses in the Insurance and Employment Contexts in
Switzerland . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 293
Valérie Junod
Genetic Testing, Insurance and Employment in the UK:
Is the Regulatory Regime Fit for Purpose? . . . . . . . . . . . . . . . . . . . . . . . 317
Gerard Porter
Genetic Discrimination in the United States: What State and National
Government Are Doing to Protect Personal Information . . . . . . . . . . . . 331
Eric A. Feldman and Erin Quick
Part I
General Report
Legal Aspects of Genetic Testing Regarding
Insurance and Employment
General Report

Lara Khoury, Adelle Blackett, and Lukas Vanhonnaeker

Abstract The legal analysis of genetic testing in insurance and employment reveals
layered tensions that are central to the governance of contemporary social risk. The
development of genomic medicine promises much, through the ability to identify
risk on an individualized basis. However, individualization inevitably raises con-
cerns about privacy protection, all the more pressing when genetic testing is not a
fully refined, predictive technology. The individualization of risk yields still more
profound tensions to the extent that the Post-War consensus in many societies has
been to seek to transfer certain social risks away from the individual, by collectiv-
izing them through a range of state-supported social security mechanisms. On the
occasion of the 20th General Congress of the International Academy of Comparative
Law held on 24 July 2018 at Kyushu University in Fukuoka, Japan, legal experts
worldwide prepared reports on the legal aspects of genetic testing in the contexts of
insurance and employment, 14 of which are revised as chapters in this edited
volume. This general report highlights commonalities and differences between
legal regimes on their approach to genetic testing in these contexts. It chronicles
the justifications for and against the collection of genetic information by insurers and
employers, legal definitions, as well as the specific rights and obligations and
generalist frameworks that apply from a privacy rights and anti-discrimination
lens. This comparative endeavor concludes with a reflection on the relevance of
transnational standards to address the legal challenges of genetic testing in insurance
and employment.

L. Khoury (*) · A. Blackett · L. Vanhonnaeker


Faculty of Law, McGill University, Montreal, QC, Canada
e-mail: lara.khoury@mcgill.ca; adelle.blackett@mcgill.ca; lukas.vanhonnaeker@mail.mcgill.ca

© Springer Nature Switzerland AG 2020 3


L. Khoury et al. (eds.), Genetic Testing and the Governance of Risk in the
Contemporary Economy, Ius Comparatum - Global Studies in Comparative Law 34,
https://doi.org/10.1007/978-3-030-43699-5_1
4 L. Khoury et al.

1 Introduction1

Colleagues from 16 jurisdictions have generously reported2 on how the legal


systems of their different jurisdictions tackle the challenges brought by legal aspects
of genetic testing in insurance and employment.3 Grounded in their work, this
General Report offers an overview of the diverse set of norms that surround genetic
testing in insurance and employment, accompanied by a window into relevant
international, regional and national incursions into the field. This general report
does not purport to offer a comprehensive or even free-standing investigation.
Similarly, it does not seek fully to describe national orders in respect to the questions
raised by the topic.4 Rather, this report offers a basis for comparative reflection,
including on whether transnational standard setting might be useful or necessary to
address some of the legal challenges of genetic testing in insurance and the
employment.
The report is structured into two main sections. The first section looks at the range
of norms that specifically address the use of genetic testing in employment and
insurance. They encompass international sources—including human rights norms—
that may be binding or non-binding, as well national statutory, regulatory or soft law
mechanisms (Sect. 2). The second section considers general frameworks relevant to
genetic testing of each country, including those that flow from general

1
Questions 1–2 of the Questionnaire.
2
Our questionnaire in French and English is available as an Annex to this chapter.
3
The national report for Belgium was prepared by Thierry Vansweevelt, Britt Weyts and Cindy
Cornelis (Vansweevelt, Weyts and Cornelis, Belgian national report); the national report for Brazil
was prepared by Mario Viola (Viola, Brazil national report); the national report for Canada was
prepared by Colleen Thrasher and Hilary Young (Thrasher and Young, Canada national report); the
national report for Cyrpus was prepared by Theodoros Trokanas (Trokanas, Cyprus national
report); the national report for Czechia was prepared by Filip Křepelka (Křepelka, Czechia national
report); the national report for Estonia was prepared by Kärt Pormeister (Pormeister, Estonia
national report); the national report for France was prepared by Christian Byk (Byk, France national
report); the national report for Greece was prepared by Lilian Mitrou (Mitrou, Greece national
report); the national report for Italy was prepared by Carlo Casonato and Marta Tomasi (Casonato
and Tomasi, Italy national report); the national report for Japan was prepared by Yuichiro Sato
(Sato, Japan national report); the national report for Poland was prepared by Monika Wałachowska
(Wałachowska, Poland national report); the national report for Quebec was prepared by Yann Joly
(Joly, Quebec national report); the national report for Switzerland was prepared by Valérie Junod
(Junod, Switzerland national report); the national report for Taiwan was prepared by Wenmay Rei
(Rei, Taiwan national report); the national report for the United Kingdom was prepared by Gerard
Porter (Porter, United Kingdom national report); insights with respect to challenges brought by
legal aspects of genetic testing in insurance and employment in the United States were provided by
Eric A. Feldman and Erin Quick after the Congress (Feldman and Quick, United States national
report). The national reports are on file with the authors.
4
For a fulsome account of how national orders tackle the questions raised by our theme, the reader is
invited to consult the revised contribution of some of the authors of the national reports: Khoury
et al. (2020).
Legal Aspects of Genetic Testing Regarding Insurance and Employment 5

anti-discrimination rules and norms protecting rights to autonomy, self-


determination, confidentiality and privacy (Sect. 3).
The legal analysis of genetic testing in insurance and employment reveals layered
tensions that are central to the governance of contemporary social risk. The devel-
opment of genomic medicine promises much, through the ability to identify risk on
an individualized basis. However, individualization inevitably raises concerns about
privacy protection,5 all the more pressing when genetic testing is not a fully refined,
predictive technology.6 The individualization of risk yields still more profound
tensions to the extent that the Post-War consensus in many societies has been to
seek to transfer certain social risks away from the individual, by collectivizing them
through a range of state-supported social security mechanisms.7 The transfer tends to
occur through a variety of fiscal measures and social security benefits that are tied to
employment and often involve insurance coverage. One rapporteur astutely ques-
tions whether genetic testing is part of the same continuum, or rather accelerates a
different, contemporary trend of transferring risk back onto the shoulders of the
individual.8
It is therefore somewhat surprising that the vast majority of jurisdictions surveyed
in this report have little or no data available on the frequency of use of genetic testing
in the insurance and employment contexts.9 This apparent lack of data stands in stark
contrast with the data available on the prevalence of genetic testing undertaken for
medical purposes (e.g. for prenatal diagnostic, filiation, medical diagnosis, predic-
tive testing, and now personalized medicine)10 as well as for the investigation of
crimes.11
National reporters pointed to a number of factors that might affect the prevalence
of genetic testing in the contexts of insurance and employment. The design of
national health or social insurance systems, especially where they provide compre-
hensive coverage, and even of private insurance schemes, has an impact on the

5
Wałachowska, Poland national report.
6
This tension was raised in different ways by several national rapporteurs. See e.g. Thrasher and
Young, Canada national report; Byk, France national report.
7
See Universal Declaration of Human Rights, G.A. Res. 217A (III), U.N. Doc. A/810 at 71 (1948),
Arts 22, 23 and 25.
8
Byk, France national report.
9
Viola, Brazil national report; Thrasher and Young, Canada national report; Křepelka, Czechia
national report; Casonato and Tomasi, Italy national report; Sato, Japan national report; Rei, Taiwan
national report; Wałachowska, Poland national report; Mitrou, Greece national report; Pormeister,
Estonia national report; Joly, Quebec national report; Junod, Switzerland national report;
Vansweevelt, Weyts and Cornelis, Belgian national report; Porter, United Kingdom national report
(the Health and Safety Executive noted in 2007 that: “(w)e have not found any evidence that
employers are currently carrying out genetic testing in Britain (with the exception of the Ministry of
Defence for aircrew training)”).
10
Křepelka, Czechia national report; Wałachowska, Poland national report; Rei, Taiwan national
report; Byk, France national report.
11
Křepelka, Czechia national report (because of rapidly decreasing prices, genetic testing pro-
liferates in both domains).
6 L. Khoury et al.

frequency of genetic testing12: one national rapporteur suggests that if the cost of
genetic testing13 is covered, physicians may be more likely to prescribe genetic
tests.14 Moreover, if the national health insurance provides comprehensive coverage
for health services,15 there may be little incentive for private insurers to use genetic
testing.16 Finally, the availability of low cost direct-to-consumer genetic testing may
have an impact on the prevalence of genetic testing.17
Of course, how countries regulate genetic testing—forbidding it altogether for
employment and insurance purposes, or permitting it under strict conditions (Sect. 2
below)—is likely to influence the frequency of the testing.18 For instance, the
Quebec rapporteur observes that a conjunction of three factors could affect the
reliance upon genetic testing in the Canadian context: (1) the adoption of a specific
genetic anti-discrimination statute in 2017; (2) a commitment by Canadian insurers,
starting on 1 January 2018 to restrict the use of genetic test results for life coverage
equal to or above $250,000; and (3) the inclusion of genetic testing within the
services covered by the public health care system.19 Diving into the heart of our
topic, we find another factor influencing prevalence: insurer-induced fear of higher
premiums or exclusion of coverage not only affects the willingness of individuals to
undergo useful predictive genetic tests, but also affects the protection of their rights
as patients by restricting de facto their access to preventive health care20 and
equitable access to health care.21

12
Sato, Japan national report; Porter, United Kingdom national report; Joly, Quebec national report;
Rei, Taiwan national report; Křepelka, Czechia national report.
13
E.g. Porter, United Kingdom national report (access to genetic testing is free within the NHS
based upon clinical need—usually when there is relevant family history).
14
Suggested by Junod, Switzerland national report.
15
Rei, Taiwan national report.
16
Rei, Taiwan national report. The existence of a publicly funded healthcare system in Canada also
explains the limited amount of discriminatory treatment on the ground of genetic status and why it
took so long to adopt legislation on genetic discrimination: Joly, Quebec national report.
17
E.g. Porter, United Kingdom national report.
18
Thrasher and Young, Canada national report; Joly, Quebec national report; Junod, Switzerland
national report.
19
Joly, Quebec national report, citing to CLHIA, “Industry Code: Genetic Testing Information for
Insurance Underwriting” (11 January 2017) and Genetic Non-Discrimination Act, Canada, SC
2017, c 3.
20
Protected under article 35 of the Charter of Fundamental Rights of the European Union, OJ C
326/391, 26 October 2012 (Trokanas, Cyprus national report).
21
Protected under article 3 of the Oviedo Convention (Convention for the Protection of Human
Rights and Dignity of the Human Being with regard to the Application of Biology and Medicine,
adopted 4 April 1997, CETS no 164): Trokanas, Cyprus national report. This could include their
right to access healthcare, where applicable: Pormeister, Estonia national report.
Legal Aspects of Genetic Testing Regarding Insurance and Employment 7

2 Specific Rights and Obligations Regarding Genetic


Testing in the Insurance and Employment Context

2.1 Justifications For and Against the Collection of Genetic


Information by Employers and Insurers22

As suggested in the introduction, perspectives vary on whether employers


and insurers should be permitted to collect genetic information in the employment
and insurance contexts, even though some jurisdictions report an absence of political
and bioethical debates about genetic testing altogether.23 We therefore asked
national rapporteurs to share their appraisal of the justifications and objections raised
in their jurisdictions for and against such collection.
The justifications for collection by the insurance industry are grounded in a
number of arguments. In some countries, the insurance industry invokes its business
model of setting premiums based on risk to justify collecting genetic information.24
In a nutshell, genetic information enables industry actors to classify individuals in
the appropriate risk category.25 The argument is that by avoiding inaccurate risk
classification, genetic data collection fends off against unfair practices26 and solid-
ifies the foundations of insurance, namely the collectivization of risk and solidar-
ity.27 The collection of genetic information can also be seen as remedying the
asymmetry of information between the insurer and the individual seeking insurance,
which may lead to self-selection or anti-selection.28 Moreover, as scientific devel-
opments allow the identification of genetic origins for an increasing number of
diseases, protection against the disclosure of genetic health risks may undermine
an insurer’s ability to decide what risks to underwrite when applicants simply remain
silent on frequently occurring illnesses with a genetic origin and potentially on a
broader range of medical data.29

22
Question 19 of the Questionnaire.
23
Křepelka, Czechia national report.
24
Thrasher and Young, Canada national report. See also Feldman and Quick, United States national
report.
25
Vansweevelt, Weyts and Cornelis, Belgium national report. See also Byk, France national report
and Pormeister, Estonia national report (insurers, contrary to employers, may have a legitimate
interest in accessing an individual’s genetic information, especially in the context of life insurance
or long-term medical insurance).
26
Joly, Quebec national report; Porter, United Kingdom national report; Junod, Switzerland
national report.
27
Junod, Switzerland national report; Vansweevelt, Weyts and Cornelis, Belgium national report.
See also Sato, Japan national report (insurers frame genetic information collection as part and parcel
of a distributive justice scheme).
28
Raised by Vansweevelt, Weyts and Cornelis, Belgium national report. The concepts of self-
selection and anti-selection are explained by the rapporteurs on Belgium.
29
Raised by Vansweevelt, Weyts and Cornelis, Belgium national report.
8 L. Khoury et al.

In the employment context, justifications for the collection of genetic data30 are
generally formulated through the lens of the employers’ right to manage, which
includes ascertaining an employee’s ability to carry out the duties of the employment
relationship31 and helping to match employees with suitable jobs.32 A further
articulated justification is linked to employers’ responsibility to provide a safe
workplace: some argue that employers may need an employee’s disclosure in
order to protect the worker with a genetic disorder against specific risk factors
(e.g. if a particular task requires exposure to a particular substance).33 Others situate
the responsibility at the level of avoiding compromising the safety of others in the
workplace,34 or of arriving at an equitable organization and distribution of work.35 In
some case, the broader organization of work has an impact on genetic testing. In
Japan, it is argued that the collection of genetic information as part of the recruitment
process is justified by the “lifelong employment system” whereby employees are
expected to remain in the same employment until their retirement age (usually
60 years old).36 Yet in other contexts, the debate might be mute for distinct structural
reasons. In Czechia for instance, there is little incentive for employers to have
recourse to genetic testing for two seemingly contradictory reasons: the skilled
workforce available is limited and employment contracts can easily be terminated.37
Context matters.
Objections to the collection of genetic information are also varied, some being
general and others pertaining to each of the contexts under study. The main objection
common to both the employment and insurance sectors focuses on the danger of
genetic discrimination, which we discuss below.38 Another shared objection centres

30
Some jurisdictions report that no data is available on that topic (Casonato and Tomasi, Italy
national report) or that employers and insurers do not collect genetic information (Rei, Taiwan
national report).
31
Thrasher and Young, Canada national report; Joly, Quebec national report; Křepelka, Czechia
national report.
32
Feldman and Quick, United States national report.
33
Křepelka, Czechia national report; Junod, Switzerland national report; Vansweevelt, Weyts and
Cornelis, Belgian national report.
34
Křepelka, Czechia national report; Porter, United Kingdom national report; Junod, Switzerland
national report (safety of third parties). The Czechia report observes that causal links between
genetic disorders and workplace safety are largely speculative but notes that geneticists indicate that
early symptoms of Huntington’s disease could compromise work performance and safety
(Křepelka, Czechia national report).
35
Junod, Switzerland national report.
36
Sato, Japan national report.
37
Křepelka, Czechia national report.
38
Thrasher and Young, Canada national report; Casonato and Tomasi, Italy national report; Junod,
Switzerland national report; Vansweevelt, Weyts and Cornelis, Belgium national report. See also
Sato, Japan national report. Interestingly, the rapporteurs for the United States explain with respect
to the prohibition of genetic discrimination in both sectors, that the enactment of the Genetic
Information Nondiscrimination Act (PL 110–233, 21 May 2008, 122 Stat 881) was not a response to
actual discriminatory practices but instead was aimed at mitigating the public’s fear of future
Legal Aspects of Genetic Testing Regarding Insurance and Employment 9

on the state of the science: genetic testing often cannot conclusively predict a
person’s future health, as one may have a predisposition to a disease, but not ever
actually acquire it.39 Moreover, requiring disclosure and allowing the use of genetic
data in insurance and employment has broader health consequences: it may serve as
a disincentive for individuals who could receive life-saving information from pur-
suing genetic testing, out of the fear that they will be compelled to disclose the
results.40
In the insurance sector, opponents to genetic testing emphasize the dangers of
creating an uninsured “genetic underclass.”41 They also point to objections grounded
in the protection of privacy and personality rights42 and contractual freedom.43 They
worry about the consequence of disclosure for relatives whose health history may be
required for—or whose health risks might be revealed through—the testing.44 They
additionally raise the dangers of self-selection by the insurance seeker who is often
not in a position to obtain an accurate market assessment.45 Finally, in the employ-
ment context, it is argued that there are less intrusive means by which to assess the
reasonable ability of potential employees to perform the work required for their
employment, such as by asking about suitability and ability to perform certain
tasks.46
Next, we explore normative approaches that address specifically whether genetic
tests can be requested by employers and insurers or whether employers and insurers
can request existing genetic results. Given these rules are often influenced by
concerns about potential discrimination, we start by exploring anti-discrimination
and other human rights provisions dealing specifically with genetics (Sect. 2.3)
before moving on to other types of legislation, subordinate regulations, and soft
law instruments governing the use of genetic information and testing in the employ-
ment and insurance sectors (Sect. 2.4). But we look first at the treatment of the
various concepts associated with genetic testing under the international and national
laws surveyed (Sect. 2.2).

genetic discrimination and preventing such practices (Feldman and Quick, United States national
report).
39
Thrasher and Young, Canada national report; Junod, Switzerland national report; Vansweevelt,
Weyts and Cornelis, Belgium national report.
40
Vansweevelt, Weyts and Cornelis, Belgium national report (raised by the rapporteurs for the
insurance sector, but applicable to employment as well).
41
Porter, United Kingdom national report.
42
Vansweevelt, Weyts and Cornelis, Belgium national report; Sato, Japan national report.
43
Vansweevelt, Weyts and Cornelis, Belgium national report (the Belgium national report provides
an explanation of the impact on the contractual freedom of the policyholder). They also raise
possible suspicion on the part of the insurer if genetic information is not voluntarily disclosed.
44
Vansweevelt, Weyts and Cornelis, Belgium national report.
45
Vansweevelt, Weyts and Cornelis, Belgium national report.
46
Pormeister, Estonia national report.
10 L. Khoury et al.

2.2 Legal Conceptualizations of Genetic Testing


and Information47

The field of genetics is gaining in importance at the international and regional levels.
Relevant concepts—mainly genetic tests and genetic data/information48—have been
defined internationally, and those definitions have influenced definitions adopted
nationally. International law recognizes a “special status” for human genetic data.
Indeed, the non-binding49 United Nations Economic, Social and Cultural Organiza-
tion (UNESCO) 2003 International Declaration on Human Genetic Data (2003
UNESCO Declaration) invokes four reasons for this status, namely that it may:
(1) be predictive of genetic predispositions concerning individuals; (2) have a
significant impact on the family, including offspring, extending over generations,
and in some instances on the whole group to which the person concerned belongs;
(3) contain information the significance of which is not necessarily known at the time
of the collection of the biological samples; and, finally (4) have cultural significance

47
Questions 3 and 4 of the Questionnaire.
48
For ILO documents referring to genetic data and testing, see: ILO—Report of the Director-
General, Equality at Work: Tackling the Challenges (Global Report under the follow-up to the ILO
Declaration on Fundamental Principles and Rights at Work, ILO Conference, 96th Session 2007,
Report I(B)) at 48–49; ILO—Report of the Director-General, Equality at Work: The Continuing
Challenge (Global Report under the follow-up to the ILO Declaration on Fundamental Principles
and Rights at Work, ILO Conference, 100th Session 2011, Report I(B)) at 52 (the report briefly
identifies some regulatory developments in Serbia, Armenia, the United States and Canada with
respect to genetic status and testing); ILO—Protection of Workers’ Personal Data (ILO 1997) at 1, 4
et seq and 17; ILO, Technical and Ethical Guidelines for Workers’ Health Surveillance, Occupation
Safety and Health Series No. 72 (ILO 1998) at 7. It should be noted that the International Labor
Organization (ILO) increasingly distinguishes between genetic screening and monitoring (ILO—
Protection of Workers’ Personal Data (ILO 1997) at 17). UNESCO International Declaration on
Human Genetic Data, 16 October 2003; European Convention on Human Rights (1950); Charter of
Fundamental Rights of the European Union, OJ C 326/391, 26 October 2012, Art 21; 12th
Additional Protocol to the Convention (signed in 2000, not yet into force); Council directive
2000/78/EC establishing a general framework for equal treatment in employment and occupation,
OJ L 303, 2 December 2000; Council directive 2000/43/EC of 29 June 2000 implementing the
principle of equal treatment between persons irrespective of racial or ethnic origin, OJ L 180/22,
19 July 2000; Convention for the Protection of Human Rights and Dignity of the Human Being with
regard to the Application of Biology and Medicine, adopted 4 April 1997, CETS no 164; Treaty on
the Functioning of the European Union, OJ C 326/47, 26 October 2012, Art 10; Thrasher and
Young, Canada national report (Canadian Human Rights Act, RSC, 1985, c H-6); Trokanas, Cyprus
national report (referring to EU norms and the Oviedo Convention); Křepelka, Czechia national
report (Constitution of the Czech Republic); Mitrou, Greece national report (Additional Protocol to
the Convention on Human Rights and Biomedicine concerning Genetic Testing for Health Pur-
poses, adopted 27 November 2008, CETS no 203); Byk, France national report (Regulation
(EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection
of natural persons with regard to the processing of personal data and the free movement of such
data, and repealing Directive 95/46/EC, OJ L 119/1, 4 May 2016).
49
UNESCO refers to declarations as “purely moral or political commitment[s], binding States on
the basis of good faith.”
Legal Aspects of Genetic Testing Regarding Insurance and Employment 11

for persons or groups.50 Accordingly, “(d)ue consideration should be given to the


sensitivity of human genetic data and an appropriate level of protection for these data
and biological samples should be established.”51 Some jurisdictions52 recognize
implicitly53 this “special status” although not necessarily through explicit reference
to the 2003 UNESCO Declaration. Implicit recognition flows from the inclusion of
“genetic characteristics” as a ground of discrimination in human rights legislation for
instance,54 or because of its special treatment in national legislation.55 This special
status is sometimes contested, however.56 Finally, the Greek Constitution generally
states that everyone has a right to the protection of his or her health and his or her
genetic identity, which is interpreted as entailing the protection of genetic
information.57
In the surveyed jurisdictions, distinct normative texts define genetic data or
information. Internationally, the 2003 UNESCO Declaration defines human genetic
data as: “(i)nformation about heritable characteristics of individuals obtained by
analysis of nucleic acids or by other scientific analysis.”58 Regionally, the EU
General Data Protection Regulation 2016/679,59—which entered into force and is
applied only since 25 May 2018,60—considers genetic data to be “personal data
relating to the inherited or acquired genetic characteristics of a natural person which
give unique information about the physiology or the health of that natural person and
which result, in particular, from an analysis of a biological sample from the natural

50
UNESCO International Declaration on Human Genetic Data, 16 October 2003, Art 4(a).
51
UNESCO International Declaration on Human Genetic Data, 16 October 2003, Art 4(b).
52
Others do not: Viola, Brazil national report; Porter, United Kingdom national report.
53
Thrasher and Young, Canada national report (but the cultural significance of genetic information
is neither explicitly nor implicitly recognized in Canada); Joly, Quebec national report; Trokanas,
Cyprus national report (“sensitive”); Křepelka, Czechia national report; Casonato and Tomasi, Italy
national report (through the prohibition); Sato, Japan national report; Rei, Taiwan national report
(“sensitive”); Wałachowska, Poland national report (“sensitive data”); Pormeister, Estonia national
report; Junod, Switzerland national report; Vansweevelt, Weyts and Cornelis, Belgium national
report; Byk, France national report; Mitrou, Greece national report (soft law).
54
As observed by: Joly, Quebec national report (Canadian Human Rights Act, RSC, 1985, c H-6);
Křepelka, Czechia national report; Pormeister, Estonia national report (Personal Data Protection
Act, RT I, 6 January 2016, 10, and Human Genes Research Act, RT I, 14 March 2014, 30, ss
25–27).
55
E.g. Rei, Taiwan national report (Personal Data Protection Act, Art 6: “sensitive personal data”).
56
As noted by Porter, United Kingdom national report and Wałachowska, Poland national report.
57
Mitrou, Greece national report (Arts 2, 5(5), 9(a), 21 and 25).
58
UNESCO International Declaration on Human Genetic Data, 16 October 2003, Art 2(i).
59
Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the
protection of natural persons with regard to the processing of personal data and the free movement
of such data, and repealing Directive 95/46/EC, OJ L 119/1, 4 May 2016.
60
Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the
protection of natural persons with regard to the processing of personal data and the free movement
of such data, and repealing Directive 95/46/EC, OJ L 119/1, 4 May 2016, Art 99(2).
12 L. Khoury et al.

person in question.”61 At the national level,62 examples include Estonia’s definition


of genetic data as “data concerning the genes, gene products or hereditary charac-
teristics of a human being, including a description of DNA or a part thereof, which is
obtained as a result of genetic research.”63 In the United States,64 the Genetic
Information Nondiscrimination Act defines genetic information as “(i) such individ-
ual’s genetic tests, (ii) the genetic tests of family members of such individuals, and
(iii) the manifestation of a disease or disorder in family members of such individ-
ual”,65 excluding information about an individual’s sex and age.66
As for genetic test, testing or screening, a number of definitions exist. The 2003
UNESCO Declaration defines genetic testing as “a procedure to detect the presence
or absence of, or change in, a particular gene or chromosome, including an indirect
test for a gene product or other specific metabolite that is primarily indicative of a
specific genetic change.”67 Several of the national regulatory regimes surveyed have
adopted definitions that are consistent with this terminology,68 while others have

61
Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the
protection of natural persons with regard to the processing of personal data and the free movement
of such data, and repealing Directive 95/46/EC, OJ L 119/1, 4 May 2016, Art 4(13). A second
definition is found in the preamble (Rec 34):
Genetic data should be defined as personal data relating to the inherited or acquired genetic
characteristics of a natural person which result from the analysis of a biological sample from
the natural person in question, in particular chromosomal, deoxyribonucleic acid (DNA) or
ribonucleic acid (RNA) analysis, or from the analysis of another element enabling equivalent
information to be obtained.
62
Some jurisdictions do not provide definitions of genetic information: Viola, Brazil national report;
Trokanas, Cyprus national report; Křepelka, Czechia national report; Sato, Japan national report;
Rei, Taiwan national report; Wałachowska, Poland national report; Mitrou, Greece national report;
Junod, Switzerland national report; Vansweevelt, Weyts and Cornelis, Belgian national report.
63
Pormeister, Estonia national report (Human Genes Research Act, RT I, 14 March 2014, 30, s 2
(9)). This definition applies in the contexts of insurance and employment in particular (see Human
Genes Research Act, RT I, 14 March 2014, 30, ss 26–27)). See also for genetic information:
Casonato and Tomasi, Italy national report (Authorization No. 8/2016 for the Processing of Genetic
Data—15 December 2016, point 1 (i)); Thrasher and Young, Canada national report (one can infer
from the definition of genetic test exposed below that “genetic information” includes DNA, RNA or
chromosomes and the predictions of disease or vertical transmission risk that they suggest); Joly,
Quebec national report. For other definitions of genetic data, see: Italy, Casonato and Tomasi, Italy
national report (Authorization No. 8/2016, point 1a).
64
Feldman and Quick, United States national report.
65
Genetic Information Nondiscrimination Act of 2008, PL 110–233, 21 May 2008, 122 Stat 881, s
201(4).
66
Feldman and Quick, United States national report.
67
UNESCO International Declaration on Human Genetic Data, 16 October 2003, Art 2(xii).
68
Thrasher and Young, Canada national report (the terminology is similar to article 2(i) and (xii) of
the UNESCO Declaration with a few differences); Joly, Quebec national report (the Genetic
Non-Discrimination Act does not use or define the terms “human genetic data” or “human
proteomic data”: Genetic Non-Discrimination Act, Canada, SC 2017, c 3, ss 2 and 8); Casonato
and Tomasi, Italy national report (similar but not exactly the same wording. There is no mention of
Legal Aspects of Genetic Testing Regarding Insurance and Employment 13

adopted narrower definitions than that contained in the 2003 UNESCO Declara-
tion.69 In Canada, the recent Genetic Non-Discrimination Act defines “genetic test”
as “a test that analyses DNA, RNA or chromosomes for purposes such as the
prediction of disease or vertical transmission risks, or monitoring, diagnosis or
prognosis.”70 Finally, the United States’ Genetic Information Nondiscrimination
Act defines “genetic test” as “analysis of human DNA, RNA, chromosomes, pro-
teins, or metabolites, that detects genotypes, mutations, or chromosomal changes”.71
Soft law instruments also provide definitions of “genetic information” and
“genetic testing,”72 such as in the United Kingdom where the 2014 Concordat and
Moratorium on Genetics and Insurance states that “predictive genetic tests” examine
the structure of chromosomes (cytogenetic tests) or detect abnormal patterns in the
DNA of specific genes (molecular tests).73
Proteomic or epigenetic data are generally not included in the definition of genetic
information, data or test(ing)74—although the UNESCO Declaration does provide a

proteomic data); Pormeister, Estonia national report (similar but not identical language. Estonian
law does not define “genetic testing” but has a definition for “genetic research” which is broader
(Human Genes Research Act, RT I, 14 March 2014, 30, s 2(7)). Contra: The Swiss Federal Act on
Human Genetic Testing of 8 October 2004 (in force since 1 April 2007, RS 810.12) adopts
definitions different from those of the Declaration; it focuses on the notion of genetic analysis
(analyse génétique): Junod, Switzerland national report.
69
E.g. Porter, United Kingdom national report (the definition provided in the Concordat and
Moratorium does not extend to “an indirect test for a gene product or other specific metabolite
that is primarily indicative of a specific genetic change”).
70
An Act to prohibit and prevent genetic discrimination, 1st sess, 42nd Parl, 2015, (assented to
4 May 2017), SC 2017, c 3, s 3), s 2.
71
Genetic Information Nondiscrimination Act of 2008, PL 110–233, 21 May 2008, 122 Stat 881, s
201(7).
72
Mitrou, Greece national report (see the definition of genetic data for insurance purposes of the
Greek National Bioethics Commission); Porter, United Kingdom national report (“genetic testing”
is used repeatedly throughout the ICO Employment Practices Code, but no clear definition is given).
73
Porter, United Kingdom national report (UK Government and the Association of British Insurers
(ABI), “Concordat and Moratorium on Genetics and Insurance’ (2014), available at: https://www.
abi.org.uk/globalassets/sitecore/files/documents/publications/public/2014/genetics/concordat-and-
moratorium-on-genetics-and-insurance.pdf. In the United Kingdom, the government has deliber-
ately avoided resorting to the general non-discrimination framework, rather relying on two soft law
instruments applying respectively in the employment and insurance sectors: Porter, United King-
dom national report. For other definitions of genetic screening, see: Casonato and Tomasi, Italy
national report (Authorization No. 8/2016, point 1 (g)). For other definitions of genetic test, see:
Casonato and Tomasi, Italy national report (Authorization No. 8/2016, point 1 (c)); Junod, Swit-
zerland national report (Federal Act on Human Genetic Testing of 8 October 2004, in force since
1 April 2007, RS 810.12, Art 3).
74
Thrasher and Young, Canada national report; Joly, Quebec national report (see Genetic
Non-Discrimination Act, Canada, SC 2017, c 3, ss 2 and 8); Casonato and Tomasi, Italy national
report; Porter, United Kingdom national report; Pormeister, Estonia national report (Human Genes
Research Act, RT I, 14 March 2014, 30, s 2(9) includes gene and hereditary characteristics,
however); Junod, Switzerland national report (no explicit reference in the Federal Act on Human
14 L. Khoury et al.

definition of human proteomic data.75 The rapporteurs for Canada and Quebec
observe that relevant definitions tend implicitly to include proteomic or epigenetic
data.76 In the United States, the Genetic Information Nondiscrimination Act explic-
itly refers to “an analysis of human (. . .) proteins” in its definition of “genetic test”.77
Do the definitions of the relevant terminology refer explicitly to the broader
concept of family history? Many do not.78 However, in Estonia for instance, family
history is covered by the definition of genetic data under the Personal Data
Protection Act if the family history reveals genetic information regarding a specific,
directly or indirectly identifiable, individual.79
National orders distinguish between genetic tests in two distinct ways. A first
distinction pertains to whether tests are diagnostic (used to identify existing health
problems) or predictive (used to predict disease susceptibility). In general, defini-
tions in national laws do not make this distinction.80 However, the Oviedo Conven-
tion—which Cyprus, Czechia, Estonia, France, Greece, and Switzerland have
ratified81—does so by limiting the use of predictive tests82 to health purposes or

Genetic Testing of 8 October 2004 (in force since 1 April 2007, RS 810.12) but it applies to any
results arising from genetic testing).
75
The Declaration defines it as: “[i]nformation pertaining to an individual’s proteins including their
expression, modification and interaction” (Art 2 (ii)).
76
Thrasher and Young, Canada national report; Joly, Quebec national report (some but not all
proteomic and epigenetic data).
77
Genetic Information Nondiscrimination Act of 2008, PL 110–233, 21 May 2008, 122 Stat 881, s
201(7).
78
Thrasher and Young, Canada national report; Joly, Quebec national report; Casonato and Tomasi,
Italy national report; Porter, United Kingdom national report (the ABI Concordat and Moratorium
does not include family history, but section 21(f) explicitly allows insurers to seek, with the person’s
consent, access to appropriate family medical history, inter alia, to accurately price the risk from any
health information an applicant discloses).
79
Pormeister, Estonia national report (Human Genes Research Act, RT I, 14 March 2014, 30, ss 2
(9) and 4(2)–(4) of the Personal Data Protection Act (RT I, 6 January 2016, 10)). In Cyprus,
“genetic information” and “genetic test” are not defined in legislation but soft law instruments
include family history implicitly or explicitly: Trokanas, Cyprus national report. In Greece, family
history is regarded as data pertaining to the health of a person if it allows explaining, assessing or
predicting the health status of this person: Mitrou, Greece national report.
80
Thrasher and Young, Canada national report; Joly, Quebec national report (s 2 of the Genetic
Non-Discrimination Act (SC 2017, c 3) refers to both diagnostic and predictive tests); Casonato and
Tomasi, Italy national report.
81
See https://www.coe.int/en/web/conventions/full-list/-/conventions/treaty/164/signatures?p_
auth¼lczs9fbu
82
Defined as: “(t)ests which are predictive of genetic diseases or which serve either to identify the
subject as a carrier of a gene responsible for a disease or to detect a genetic predisposition or
susceptibility to a disease” (Convention for the Protection of Human Rights and Dignity of the
Human Being with regard to the Application of Biology and Medicine, adopted 4 April 1997, CETS
no 164, Art 12).
Legal Aspects of Genetic Testing Regarding Insurance and Employment 15

research linked to health purposes.83 Switzerland provides an example in which the


distinction is made in the legislation and determines whether genetic testing is
allowed, as we will see below.84 In the United Kingdom, the “Concordat and
Moratorium” applies only to predictive genetic tests.85 Cyprus seeks to prohibit
insurers from conducting preventive medical screening for diagnosis of existing
pathologies and tests for the detection of risks of future disorders and diseases.86
Finally, the rapporteurs for the United States note that the Genetic Information
Nondiscrimination Act’s definition of “genetic information” subtracts from the
Act’s protections individuals whose diseases have manifested themselves.87
A second reported distinction concerns the “venue” in which the genetic tests are
conducted: within a clinical or research setting or sold directly to consumers
(DTC).88 For instance, in Canada, the Genetic Non-Discrimination Act does not
apply to researchers or health care practitioners89; in Switzerland, despite efforts to
regulate DTC, they currently fall outside the scope of application of existing
regulatory regimes.90

83
Subject to appropriate genetic counselling: Convention for the Protection of Human Rights and
Dignity of the Human Being with regard to the Application of Biology and Medicine, adopted
4 April 1997, CETS no 164, Art 12 (mentioned in Mitrou, Greece national report and Křepelka,
Czechia national report).
84
It refers to predictive tests as pre-symptomatic genetic analysis (“analyses génétiques
présymptomatiques”): Junod, Switzerland national report (Federal Act on Human Genetic Testing
of 8 October 2004, in force since 1 April 2007, RS 810.12, Art 3(d)).
85
Porter, United Kingdom national report (an exception is found in section 21(c)(iii) of the ABI
Concordat and Moratorium).
86
Trokanas, Cyprus national report (“National Bioethics Committee’s Opinion with respect to
predictive health-related medical information before the conclusion of private (life or health)
insurance” of 22 January 2008: by classifying medical history under medical methods and practices
to predict diseases. This Opinion is classified as a “soft law” instrument. Trokanas, Cyprus national
report.
87
Feldman and Quick, United States national report (Genetic Information Nondiscrimination Act of
2008, PL 110–233, 21 May 2008, 122 Stat 881).
88
Pormeister, Estonia national report (the Human Genes Research Act (RT I, 14 March 2014, 30)
implicitly distinguishes through the way it is structured); Porter, United Kingdom national report
(the ICO Employment Practices Code does not, but the ABI Concordat and Moratorium establishes
that customers are not required to disclose predictive or genetic test results acquired as part of
clinical research). Other countries do not make such distinction: Trokanas, Cyprus national report;
Casonato and Tomasi, Italy national report; Mitrou, Greece national report (but the Greek national
report provides a caveat).
89
Thrasher and Young, Canada national report and Joly, Quebec national report. See also
Wałachowska, Poland national report (a distinction was made in a 2012 Bill between tests occurring
within a clinical setting, for research purposes, and tests sold to consumers; a working group
recommended testing for medical purposes only).
90
Junod, Switzerland national report. See also Pormeister, Estonia national report (parts of the
Human Genes Research Act apply only to research (i.e. to the EGB), and others apply more
generally to genetic testing).
16 L. Khoury et al.

National laws may regulate genetic testing, implicitly or explicitly, directly or


indirectly, via constitutional law,91 consumer law,92 laws pertaining to
biobanks,93 employment law,94 and even criminal law.95 Regulatory regimes
have tended to regulate genetic testing through non-discrimination provisions or
other legislation specifically targeting genetic testing and information. In addition,
data protection laws play a crucial role, which is described in Sect. 3.2. Some
jurisdictions surveyed do not have laws specifically regulating the use of genetic
data for employment or insurance purposes96 (see Summary Table in Annex 1)
or, even, data protection laws.97 The countries that have regulated on the matter
through specific regulatory texts include Canada,98 Italy,99 Estonia,100

91
Thrasher and Young, Canada national report (Canadian Charter of Rights and Freedoms, Part I
of the Constitution Act, 1982 being Schedule B to the Canada Act 1982 (UK), 1982, c 11, esp ss
7-8, 15); Trokanas, Cyprus national report (Constitution of the Republic of Cyprus of 1960);
Mitrou, Greece national report (Greek Constitution, Art 5).
92
Mitrou, Greece national report (Act 2251/1994 on the protection of consumers).
93
Rei, Taiwan national report (Biobank Management Act of 2010); Mitrou, Greece national report
(Recommendation on Biobanks in biomedical Research the Greek National Bioethics Committee).
94
Casonato and Tomasi, Italy national report (articles 5 and 8 of the Statute of the Workers’ Rights
(Law no. 300 of May 20, 1970, “Rules on the protection of the freedom and dignity of workers and
of trade union freedom and union activity in the workplace, and rules on the public employment
service”).
95
Křepelka, Czechia national report (the report explores this possibility); Junod, Switzerland
national report (Penal Code, Art 321, protecting medical secrecy); Byk, France national report
(Penal Code, Art 225-3(1), protecting against discrimination).
96
Viola, Brazil national report; Trokanas, Cyprus national report; Křepelka, Czechia national report;
Sato, Japan national report; Rei, Taiwan national report; and the UK, Porter, United Kingdom
national report (except in the insurance sector through soft law).
97
Viola, Brazil national report.
98
Genetic Non-Discrimination Act, Canada, SC 2017, c 3: Thrasher and Young, Canada national
report; Joly, Quebec national report (the Genetic Non-discrimination Act amends the Canadian
Labour Code and the Canadian Human Rights Act, RSC, 1985, c H-6). This Genetic
Non-Discrimination Act was found to be an invalid exercise of federal powers by the Quebec
Court of Appeal in December 2019, after the Canadian and Quebec reports were drafted: Dans
l'affaire du: Renvoi relatif à la Loi sur la non-discrimination génétique, 2018 QCCA 2193. The
Supreme Court of Canada heard the arguments on appeal of this decision in October 2019 but has
not yet rendered its decision: https://www.scc-csc.ca/case-dossier/info/sum-som-eng.aspx?
cas¼38478.
99
General Authorisation No. 8/2016 for the Processing of Genetic Data: Casonato and Tomasi,
Italy national report (General Authorisation No. 8/2016 for the Processing of Genetic Data—
15 December 2016 (issued by the Garante per la protezione dei dati personali)).
100
Human Genes Research Act, RT I, 14 March 2014, 30 (ss 25–27 for insurance and employment:
Pormeister, Estonia national report).
Legal Aspects of Genetic Testing Regarding Insurance and Employment 17

Switzerland,101 France,102 Belgium103 and the United States104 (see Summary


Table in Annex 1).

2.3 Anti-discrimination Norms Dealing Specifically


with Genetic Status105

Human rights based anti-discrimination norms that apply to genetic discrimination


exist internationally, regionally and nationally. Some are of general application and
have been interpreted to include genetic discrimination. Others have been adopted
specifically to tackle the issues arising in genetic testing. While different rapporteurs
underscore important developments in non-discrimination law, none consider the
measures in place to offer a panacea. Some even query whether the increasingly
affordable and widespread nature of genetic testing blurs the line between discrim-
inatory use of genetic information and attention to how an individual’s genetic
constitution may make him or her more or less suitable for a particular job or
more or less of an insurance risk.106
Internationally, the Universal Declaration of Human Rights, the two UN cove-
nants107 and the anti-discrimination conventions108 provide a generalist framework
of human rights that is reflected in the specific, more contemporary, texts that have
since been elaborated by other UN agencies. The generalist norms are discussed in
greater detail in Sect. 3 below.
Discrimination based on genetic status is specifically addressed in a number of
international instruments of varying normativity (see Summary Table in Annex 1).
These include the non-binding UNESCO Universal Declaration on Human Genome

101
Junod, Switzerland national report (Federal Act on Human Genetic Testing of 8 October 2004, in
force since 1 April 2007, RS 810.12, Arts 26 to 28).
102
Byk, France national report.
103
Vansweevelt, Weyts and Cornelis, Belgium national report (Insurance Act of 4 April 2014,
Belgian State Gazette 30 April 2014, Arts 58 and 64 and Act of 28 January 2003 concerning
medical examinations that are carried out within the framework of industrial relations, Belgian State
Gazette, 9 April 2003).
104
Feldman and Quick, United States national report.
105
Questions 8, 9 and 11 of the Questionnaire.
106
Feldman and Quick, United States national report.
107
International Covenant on Civil and Political Rights of 16 December 1966; International
Covenant on Economic, Social and Cultural Rights of 16 December 1966 (the United States have
not ratified this International Covenant); Convention on the Elimination of All Forms of Discrim-
ination against Women, 18 December 1979 (the United States have not ratified the Convention);
International Convention on the Elimination of All Forms of Racial Discrimination, adopted on
21 December 1965.
108
See in particular the UN Convention on the Rights of Persons with Disabilities of
13 December 2006.
18 L. Khoury et al.

and Human Rights of 11 November 1997 (1997 UNESCO Human Genome Decla-
ration), which states that “[e]veryone has a right to respect for their dignity and for
their rights regardless of their genetic characteristics” and that no one shall be
“subjected to discrimination based on genetic characteristics that is intended to
infringe or has the effect of infringing human rights, fundamental freedoms and
human dignity.”109 In addition, the 2003 UNESCO Declaration provides that
“[e]very effort should be made to ensure that human genetic data and human
proteomic data are not used for purposes that discriminate in a way that is intended
to infringe, or has the effect of infringing human rights, fundamental freedoms or
human dignity of an individual or for purposes that lead to the stigmatization of an
individual, a family, a group or communities.”110
The United Nations specialized agency, the International Labour Organization
(ILO), has similarly issued a non-binding Code of practice on the protection of
workers’ personal data. The Code of practice stresses “the need to develop data
protection provisions which specifically address the use of workers’ personal data in
order to safeguard the dignity of workers, protect their privacy and guarantee their
fundamental right to determine who may use which data for what purposes and
under what conditions.”111
At the regional level in Europe, the Charter of Fundamental Rights of the
European Union112 prohibits any discrimination based on “genetic features” by
EU institutions when applying EU law.113 The EU General Data Protection Regu-
lation 2016/679 emphasizes the importance of preventing discriminatory effects on
natural persons on the basis of genetic or health status, or measures having such an
effect.114 The regional human rights body, the Council of Europe, has issued the
Oviedo Convention on Human Rights and Biomedicine, which also prohibits any
form of discrimination against a person “on grounds of his or her genetic heri-
tage.”115 The American Convention on Human Rights provides generalist protec-
tion, and is discussed under Sect. 3 below.

109
UNESCO Universal Declaration on Human Genome and Human Rights of 11 November 1997,
Arts 2(a) and 6.
110
UNESCO International Declaration on Human Genetic Data of 16 October 2003, Art 7.
111
ILO—Code of practice on the Protection of Workers’ Personal Data (ILO 1997), preamble at
1. Although, the ILO does not address the specific issue of genetic discrimination, one could argue
that it includes genetic information in the notion of data.
112
The Charter of Fundamental Rights of the European Union (OJ C 326/391, 26 October 2012)
covers all of the rights and freedoms enshrined in the ECHR as well as others flowing from the ECJ
case law, constitutional traditions of EU countries and other instruments.
113
Charter of Fundamental Rights of the European Union, OJ C 326/391, 26 October 2012, Art 21
(1). See also Arts 3 (integrity of the person), 7 (respect for private and family life) and 8 (protection
of personal data).
114
Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on
the protection of natural persons with regard to the processing of personal data and the free
movement of such data, and repealing Directive 95/46/EC, OJ L 119/1, 4 May 2016, para 71 of
the Preamble.
115
Convention for the Protection of Human Rights and Dignity of the Human Being with regard to
the Application of Biology and Medicine, adopted 4 April 1997, CETS no 164, Art 11.
Legal Aspects of Genetic Testing Regarding Insurance and Employment 19

Legislative texts in several surveyed jurisdictions explicitly mention genetic


grounds for prohibited discrimination (see Summary Table in Annex 1).116 This is
the case of Canada, where the Genetic Non-Discrimination Act of May 2017
amended the Canadian Human Rights Act—which only applies to federal regulated
activities—to include “genetic characteristics” as a prohibited ground of discrimina-
tion.117 The Belgian Anti-Discrimination Act, applying to public and private sectors,
and to labour relations, forbids the use of genetic characteristics to discriminate.118 It
should be noted that some jurisdictions specifically refer in their national legislation
to international texts that address genetic discrimination (Italy119) or that prohibit
any form of discrimination (Poland120). Finally, the French Penal Code also pro-
hibits discrimination based on genetic characteristics, but makes an exception for
health-related discrimination for life, health and invalidity insurance. This exception
was later modified to forbid, even in such cases, reliance on predictive genetic tests
for a disease that is not yet declared or for a genetic predisposition to a disease.121
Other jurisdictions also explicitly recognize genetic status as a ground of discrimi-
nation in soft law instruments.122
However, virtually all of the national rapporteurs indicated a lack of judicial
decisions dealing specifically with genetic discrimination in the insurance and/or

116
Thrasher and Young, Canada national report (Genetic Non-Discrimination Act, Canada, SC
2017, c 3, s 9); Trokanas, Cyprus national report (in application of Convention for the Protection of
Human Rights and Dignity of the Human Being with regard to the Application of Biology and
Medicine, adopted 4 April 1997, CETS no 164, Art 11); Křepelka, Czechia national report
(in application of the Charter of Fundamental Rights and Freedoms of the European Union, Art
11 of the Oviedo Convention, Art 11 and the Law on Specific Medical Services); Junod, Switzerland
national report (Federal Act on Human Genetic Testing of 8 October 2004, in force since 1 April
2007, RS 810.12, Art 4; Vansweevelt, Weyts and Cornelis, Belgium national report (Act of 10 May
2007 to combat certain forms of discrimination, Belgian State Gazette 30 may 2007, Art 3).
117
Thrasher and Young, Canada national report (Genetic Non-Discrimination Act, Canada, SC
2017, c 3, s 9. Provincial human rights legislations do not address genetic discrimination specifi-
cally. But before the Act was adopted, the case law in the Canadian province of Quebec started to
recognize genetic information as a possible ground for discrimination: Joly, Quebec national report
and cases cited).
118
Vansweevelt, Weyts and Cornelis, Belgium national report (Art 3) (discrimination can be
justified, however).
119
Casonato and Tomasi, Italy national report.
120
Wałachowska, Poland national report (“undoubtedly” encompasses discrimination based on
genetic history).
121
Byk, France national report (Penal Code, Arts 225-1 and 225-3). There are also provisions
applying to employment (the report only covers insurance). See also Junod, Switzerland national
report (Federal Act on Human Genetic Testing of 8 October 2004, in force since 1 April 2007, RS
810.12, but provides no sanction; the latter has to be found within other norms); Pormeister, Estonia
national report.
122
Trokanas, Cyprus national report (Cyprus National Bioethics Committee’s Opinion of 22 January
2008); Mitrou, Greece national report (Greek National Bioethics Commission, Explanatory Report
of the Recommendation on the collection and use of genetic data).
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Title: The philosophical and mathematical commentaries of


Proclus on the first book of Euclid's elements (Vol. 1 of
2)
To which are added, A history of the restoration of
Platonic theology, by the latter Platonists: And a
translation from the Greek of Proclus's Theological
elements

Author: Proclus

Translator: Thomas Taylor

Release date: August 14, 2024 [eBook #74253]

Language: English

Original publication: London: Printed for the author, 1791

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*** START OF THE PROJECT GUTENBERG EBOOK THE


PHILOSOPHICAL AND MATHEMATICAL COMMENTARIES OF
PROCLUS ON THE FIRST BOOK OF EUCLID'S ELEMENTS (VOL. 1 OF
2) ***
THE

PHILOSOPHICAL and
MATHEMATICAL
COMMENTARIES OF PROCLUS,
ON

THE FIRST BOOK OF EUCLID’S


ELEMENTS.
TO WHICH ARE ADDED,

A History of the Restoration of Platonic Theology,


BY THE LATTER PLATONISTS:
And a Translation from the Greek of

PROCLUS’S THEOLOGICAL ELEMENTS.

IN TWO VOLUMES.
VOL I.

LONDON, PRINTED FOR THE AUTHOR:


And Sold by T. Payne and Son; B. White and Son; J. Robson; T. Cadell; Leigh and
Co.; G. Nicol; R. Faulder; and T. and J. Egerton. 1792.

[Price Two Guineas in Boards.]


Extracts from Curiosities of Literature. Second Edition.
Printed for Murray. Page 385.

Mr. T. TAYLOR, the Platonic Philosopher and the modern Plethon,


consonant to that philosophy, professes Polytheism.[1]
The Reader is requested to correct the following
Errors.
Page 4. of the Dissertation, Vol. I. line 8. for admitted, read
omitted. Page 16. line 8. for from, read form. Page 51. Vol. I. of the
Commentaries, line 16. instead of They are surely not the, &c. read
For surely it cannot be said that there are, &c. Line 17. for but we,
read but that we. And line 19. for is by much prior to, read is by a
much greater priority.
Vol. II. page 18. line 26. for and one is, read and one part is. And
line 27. for another, read the other. Page 114. line 13. for The angle,
read Let the angle; and instead of is bisected, in the same line, read
be bisected. Page 411. line 2. for is filled with intellect, read fills
intellect. And line 3. for it also participates, read also it participates.
TO

THE SACRED

MAJESTY

OF

TRUTH.
PREFACE.

T he design of the present work is to bring us acquainted with the


nature and end of Mathematics in general, and of Geometry in
particular: and in the execution of this design our Author has
displayed an uncommon elegance of composition, and a most
valuable store of recondite learning. He is not content with every
where unfolding the full, and most accurate meaning of Euclid; but
he continually rises in his discourse, and leads us into the depths of
the Pythagoric and Platonic philosophy. We are surprised to find an
use in Geometry, which at present it is by no means suspected to
afford. For who would conceive that it is the genuine passage to true
theology, and the vestibule of divinity? This, indeed, is by no means
the case when it is studied for lucre, and applied to mechanical
purposes; for then the soul is neither elevated nor enlightened; but
degraded and filled with material darkness. Hence these
Commentaries are alone valuable to the liberal part of mankind, who
look beyond sense for certainty; and who prefer things desirable for
their own sakes, before such as minister to the necessities of life.
The translation of this work is attended with great difficulty and
labour; not only from the sense of the philosopher, which is always
profound, and frequently obscure, but from the great incorrectness
of the Greek edition, in which, exclusive of numberless typographical
errors, entire sentences, essential to the connection, are frequently
omitted; and in one place two pages of the Latin translation are
wanting in the original, as will be shewn in our following notes.
Indeed, the Latin translation of Francis Barocius the Venetian,
(Patav. 1560.) which was made from a variety of manuscripts, is
inconceivably valuable; for the diagrams, so necessary to a work of
this kind, but which are omitted in the Greek, are here inserted; and
the version is every where faithful, and sufficiently perspicuous to
those who are conversant in the ancient philosophy. Barocius justly
cautions the reader not to compare his version with the printed
Greek, which he observes is rather lacerated than printed; as indeed,
without his translation, it is impossible for any one to read the half of
this invaluable work, even though he should be as perfect in Greek
as in his native tongue. If I had not, therefore, fortunately acquired
this translation, which is at present very rare, I would have by no
means engaged in this arduous undertaking. Barocius, indeed, gives
evident proofs of his possessing the philosophical genius, by the
excellence of his translation, and his preface to the reader; and it is
greatly to be lamented that he did not adorn his version with
explanatory notes, which this profound work frequently demands,
and which he was doubtless well qualified to accomplish. This defect
I have endeavoured, as far as I was able, to supply; and at the same
time have been cautious neither to weary the reader by prolixity, nor
by too much brevity to leave him destitute of proper information. In
the distribution of the first book of this work into chapters, I have
followed the order of Barocius, because it is natural and obvious;
and must beg leave to solicit the reader’s indulgence for using the
words partible and impartible, differently from their common
signification. These words I have generally employed to express the
meaning of μεριστός[2] and αμεριστος[3] in the Greek, as I do not
conceive that the words divisible and indivisible always convey their
full signification. I have likewise used quadrangle instead of square,
and quinquangle for the word pentagon. For if τρίγωνος be rendered
triangle, why should not τετραγώνος be rendered quadrangle? And,
as Barocius observes, why, for a similar reason, should not
πεντάγωνος and ἑξάγωνος be rendered quinquangle and sexangle;
and so of the rest? Uniformity is always desirable when it can be
obtained; and is no where so necessary as in scientifical
disquisitions.
It is likewise necessary to inform the reader, that though I have
always endeavoured to give the faithful meaning of my Author, yet I
have occasionally paraphrased his sense, when most obscure, and
added such elucidations of my own, as I either thought necessary to
the full comprehension of his matter; or which were naturally excited
by the fire and spirit of the Original. If it shall appear that I have
succeeded in the execution of this work, and rendered it intelligible
to the lovers of truth, I shall rejoice in my success, and consider my
labours sufficiently rewarded. The applause of the multitude I am
neither likely nor desirous to gain; but I am anxious to procure the
approbation of the discerning few, who know that the age of
philosophy is past; and who esteem the works of her ancient heroes
as the most precious treasures which have escaped the ravages of
time.

Time, indeed, is like a deep and rapid river; whatever is trifling


and light, is precipitately borne on its surface, and what is valuable
and weighty, sinks to its bottom. Hence, the superficial observer
collects nothing more than the rubbish, which it is forever devolving
into the abyss of oblivion; while the profound and contemplative
genius explores the depths of the stream, and accounts himself
happy if he can gather any of the pearl which its bottom contains.
Thus the discoveries of experimental philosophy, float like straws on
the surface, while the wisdom of Pythagoras and Plato lies concealed
in the depths of the river. I am well aware it will be said, that the
reverse of this similitude is true; that the modern philosophy is the
pearl, and the ancient the stubble; and that the former will be
celebrated by posterity, and increase in reputation when the latter
shall scarcely be known. But let us attentively examine the truth of
this assertion, and shut our ears to the unsubstantial echoes of
popular applause. Is it reasonable to suppose that men of such
exalted abilities, as the Pythagoric and Platonic philosophers
possessed, even in the estimation of their opponents, accompanied
with the greatest advantages of birth and fortune, and the most
unwearied attention, have discovered nothing valuable, and have left
nothing behind them, but jargon and reveries? Is it to be supposed,
that in an age when philosophy was almost adored; when it was
esteemed by kings, cultivated by noblemen, and even reverenced by
the vulgar; when empire was relinquished for its pursuit, and every
danger encountered for its possession: is it to be supposed, that
nothing but delusion was the offspring of so glorious a period, and
nothing but folly the reward of such generous endurance? Or shall
we say, that the discovery of truth was reserved for the age of
experiment; and that she is alone to be apprehended in the infinite
labyrinth of particulars? That she is to be investigated with the
corporeal senses, and not with the powers of intellect; and that the
crucible, the alembic, and the air-pump, are the only mediums of
detection? If this be the case, truth is material, and may be calcined,
distilled, and rarefied, like any other corporeal substance. It is no
longer eternal and immutable, but perishable and fluctuating; the
phantastic subject of sensible inspection, and not the steady and
real object of the permanent energies of science. Shall we call this
the age of philosophy, in which talents are prostituted for
sustenance, and learning submits to the impudence of wealth? Shall
we say that we have strengthened the cause of philosophy, by
demolishing her schools; and increased her independence, by
enlarging the empire of commerce? Where shall we find the man,
who is at present reverenced for the profession of teaching
speculative truth, or indeed who teaches it at all? Or should we
chance to meet with such an obsolete character, shall we find him
supported by the profession? It is a well known fact, that men
formerly lived in the highest esteem by its propagation: it is equally
as notorious, that a man at present would starve by such an
attempt. Dare we assert, that the reason of this difference must be
ascribed to the greater liberality, and more philosophical spirit of the
present age? Shall we not rather say, that the period, in which these
ancient heroes lived, was the golden age of philosophy;—a period so
different from the present, as to appear fabulous on the
comparison? For mark the distinguishing characteristics of our
inferiority. The great object of ancient philosophy, was an accurate
speculation of principles and causes: but that of the modern, is a
confused investigation of effects. And if pursuits participate of the
nature of their subjects, and causes are more noble than effects, the
ancient philosophy must undoubtedly be more elevated than the
modern. Again, the object of the Pythagorean and Platonic
philosophy was to make its possessors wise and virtuous; and to
elevate them above the common frailties and imperfections of
degraded humanity; and this end was happily accomplished in its
votaries, as their lives abundantly evince: but the object of modern
philosophy, is a promotion of the conveniencies and refinements of
life, by enlarging the boundaries of traffic; and the Mathematical
Sciences are studied solely with a view to this enlargement. The
design of the ancient philosophy was to remove the causes of
wonder, by contemplating effects in their causes: the grand object of
the modern, is to increase admiration, by attempting to investigate
causes through the infinity of particular effects. So that philosophy,
as Mr. Harris justly observes, now ends where it formerly began. For
either there is no such thing as science, or if its existence be
admitted, it can never be obtained by experimental enquiries; as
these must be liable to all the inaccuracy and imperfection of their
material subjects.
In short, the philosophy of Pythagoras and Plato will be found,
when impartially considered, to contain every thing which can
enlighten the mind, improve the morals, and exalt the character of
man. It is built on the steady basis of truth, and will survive the
wreck of ages. Its foundation is deep, and its summit reaches the
heavens. It is a mighty rock, which modern systems may assail, like
a raging sea; but, like stormy waves, they will only be broken about
its impenetrable sides. To war against wisdom is folly; for opposition
in this case is the destruction of its author. The moderns may,
indeed, expect, because their merit is raised by the present age,
above that of the ancients, to appear as giants in the eyes of
posterity; but they will only verify the elegant observation of the
poet[4], that
Pygmies are Pygmies still, though perch’d on Alps,
And Pyramids are Pyramids in vales.
A

D I S S E RTAT I O N
ON THE
PLATONIC DOCTRINE of IDEAS, &c.
SECTION I.

T he Platonic doctrine of Ideas has been, in all ages, the derision of


the vulgar, and the admiration of the wise. Indeed, if we consider
that ideas are the most sublime objects of speculation, and that their
nature is no less bright in itself, than difficult to investigate, this
opposition in the conduct of mankind will be natural and necessary;
for, from our connection with a material nature, our intellectual eye,
previous to the irradiations of science, is as ill adapted to objects the
most splendid of all, “as the eyes of bats to the light of day[5].” And
yet (as I presume, it will appear from the following discourse),
unless the existence of these lucid beings is admitted, there can be
no such thing as science; nor, indeed, any genuine knowledge at all.
Hence, an enquiry concerning their nature and reality, is highly
proper, as an introduction to the ensuing Commentaries, in which
they are considered as the stable pillars of all truth, and the prolific
principles of the universe.
But previous to this enquiry, it is proper to observe, that Plato
was not the inventor, though he was a strenuous asserter, of ideas;
for, in the Sophista he affirms, that ideas were the discovery of men
who excelled in wisdom and piety, and who contended for an
invisible essence. Diogenes Laërtius, indeed, asserts, that Plato
received the doctrine of ideas from Epicharmus. But Epicharmus was
not their inventor, because Pythagoras, and others of still higher
antiquity, were well acquainted with ideas; so that it may be
affirmed, with much greater truth, that Plato was instructed in their
nature by Philolaus his preceptor, and the disciple of Pythagoras. For
Pythagoras, after his mysterious manner, signified ideas by numbers.
But, prior to Pythagoras, Orpheus was an asserter of ideas, and
called Jupiter, or the dimiurgus of the world, “the idea of all things.”
And, according to Syrianus, the mundane sphere, celebrated by
Empedocles, is no other than the ideal world; so that the doctrine of
ideas is as ancient as that of wisdom itself.
But to begin with our enquiry: in the first place, without
universals there can be no science; for the flowing and perishing
nature of particulars is perfectly foreign from that stability and
duration which is requisite to objects of invariable truth. Neither is it
possible, that infinite individuals can exist without the subsistence of
one cause endued with infinite power; for all multitude must
necessarily originate from one, and must resemble its cause in as
great a degree of perfection as its nature can admit; by a diffused
infinity, shadowing forth that infinite power which subsists in
indivisible union. Hence, if this be the case, and if infinite men,
horses, and a multitude of other univocals, are produced in an
infinite time, an unity of infinite power must be the source of each,
according to which they are generated in a terminated manner to
infinity in the universe. Again, all animals are transmuted from that
which is in capacity (i. e. seed), into energy. But if this be true, it is
requisite there should be some animal in the universe, subsisting in
ever-vital energy, which may call forth that which is concealed in
dormant capacity, into perfect actuality. Thirdly, the celestial orbs
would not perpetually revolve in the same spaces, and after the
same manner, unless one and the same universal number, or idea,
ruled in each. So, likewise, there is a natural number in every
animal; or those of the same species, would not always (when
perfect) be distinguished with the same invariable organs; nor would
they be subject to puberty and old age, at the same time, unless
they were detained by the same measure of nature. Besides, the
participation of universals, is evident in every sensible object. Thus,
the rational nature is united with every individual man. Thus, animal
subsists in a lion and a horse, in a man and a dog. And thus the
pentad, or number five, is participated in the five fingers, and the
duad in the nostrils, eyes, hands, and feet. But since these do not
subsist without a cause, but are perfected by certain determinate
natures, it is necessary there should be an universal animal, in the
whole of nature, separate from sensibles, by means of which this
sensible animal is generated. And that there should subsist in nature
a pentad, through which the hands are always adorned with that
number of extremities; and a duad, from which the two eyes and
nostrils are derived. But if nature does not possess these numbers
from herself, as she is not the first cause of all, but derives them
from another cause, in the same manner as matter from nature, it is
necessary there should be universals and numbers prior to nature,
subsisting in far greater purity and perfection.
Again, we may demonstrate the existence of ideas as follows: if
the Deity, in fabricating the universe, operated essentially (and there
is no other way in which we can conceive him to operate), he must
fabricate the universe, an image of Himself. But, if this be the case,
he contains in himself, in the manner of an exemplar, the causes of
the universe; and these causes are no other than ideas. Besides, this
consideration is not to be omitted, that the perfect must necessarily
antecede and preside over the imperfect; unity over multitude; the
impartible over the partible; and that which is perpetually the same,
over that which admits of variation and change. From whence it may
be inferred, that things do not originate from baser natures, but that
their gradual processions end in these; and that they begin from the
most perfect, best, and most beautiful natures. But let us pursue this
reasoning more minutely, as it affords the strongest arguments for
the existence of ideas.
When the Deity fabricated the various species of animals, and
bestowed on them the different senses, it was doubtless with a view
to the benefit of their possessors, as he foresaw, that without these,
the animal could neither provide for its own support, nor defend
itself from surrounding dangers. But may we not enquire from
whence this previous perception originated? For it is not to be
supposed, that he first made animals destitute of senses, and so,
being admonished by their sudden destruction, afterwards assigned
them to their nature. Shall we say, this foreknowledge was the result
of a reasoning process? But then, we again ask, What were the
principles of this ratiocination? For if they originated from other
reasonings, it is necessary, at length, to arrive at something prior to
these discursive operations, on which they ultimately depend; since
all reasoning must be founded on indemonstrable principles. Was
sense, then, or intellect the principle of this previous perception?
But, sense, in the present instance, had not then a being, for it could
not exist prior to the animal nature: it was, therefore, intellect. But if
intellect be the repository of certain propositions, and the conclusion
be science, it must follow, that there could not then be a
consultation of any thing sensible. For the principle and the
conclusion must both depend on something intelligible. Besides, may
we not ask, how such a habit of thought arose before the existence
of a sensible nature! It is absurd in the extreme, to say from chance,
and to resolve it into a sudden volition of the Deity, is an assertion
that may, indeed, satisfy vulgar minds, but can by no means quiet
the restless spirit of philosophical investigation. Since, to suppose
the cause of the universe, actuated by sudden volitions, is to place
him on a level with the vilest natures, and subject him to the
irrational impulses of the brute. Hence we infer that the formation of
animals, and by the same arguments of the world, was not the
result of any reasoning process. For, indeed, argument and
foreknowledge cannot with propriety be attributed to the Deity; but
when they are ascribed to him, we must consider it as nothing more
than an indication of his constituting particulars, in a manner
somewhat similar to the providence of a wise man, in inferior
concerns. For, in subordinate natures, whose operations cannot take
effect prior to enquiry, reason is necessary, on account of the
inferiority of that power which precedes the reasoning energy. In like
manner, foreknowledge is necessary, because a power is wanting to
its possessor, which might render him superior to its use. For
foreknowledge is directed to this end, that one particular
circumstance may take place in preference to another. But if it be
requisite that every energy in the Deity should be void of defect, and
if it is not lawful that any thing should be present with him, which is
not total and universal, it is necessary that all things should be
contained in every thing essential to the nature of the Deity. Hence,
since even futurity is with him present, there is nothing in him
posterior; but what is present in him becomes posterior, by its
participation in another. If then futurity be present with the Deity, it
is necessary it should be so present, as if foreknown in a posterior
nature; that is, in such a manner that nothing may be wanting to
any being; and that is, lastly, so that every thing may be complete.
Besides, reasoning cannot, by any means, belong to an eternal
essence like the deity; for if this be admitted, he must be forgetful of
his former operations. And if, in consequence of reasoning, he
produces more perfect natures afterwards, his works could not be
perfectly beautiful before: but if they were beautiful before, they
must be co-existent with their cause, i.e. they must be eternally
beautiful, antecedent to the reasoning energy. Again, if we suppose
the supreme intellect, the demiurgus of the world, to operate by
enquiry, his energy could not be spontaneous, and truly his own; but
his essence would be similar to that of the artificer, who does not
derive his productions from himself, but procures them as something
adventitious by learning and enquiry. But if the universe was not
formed by deliberation, it must be co-existent with its cause, and
reside in his essence; for if it be not co-existent there must have
been some particular time, in which its artificer determined on its
production; and this determination must have been the result of a
reasoning process, concluding that it would not be good to produce
it before that particular time, (from whence, by the way, we infer the
eternity of the world.) And if the universe be co-existent with its
author, it must perpetually emanate from his nature, and be
dependent on it, like the shadow on its forming substance. But in
this case, its archetype must be contained in the essence of its
author; for every cause is that primarily, which its effect is
secondarily. And hence we infer, that if the sensible universe be
replete with forms of every kind, the exemplars of those forms, must
subsist in immaterial perfection, in the artificer of the world.
If this sensible world, then, be formed according to the exemplar
of that which is intelligible; may we not say, with the great Plotinus,
that it is requisite universal animal should there primarily subsist in
perfect vital energy, containing all things in its omniform essence.
“Hence (says he[6]) the heavens are there a divine animal, replete
with ideal stars. Earth too does not there subsist solitary, but is
much more vital than this corporeal earth, for it is full of intellectual
life. The sea too is there, and all water subsisting in life, and an
ever-abiding stream. For how is it possible that any thing not vital,
can be the progeny of life itself? He, therefore, who enquires from
whence animals originate in the intelligible world, might as well
enquire from whence all life, and soul, and universal intellect, arose.
For here there is nothing indigent nor defective, but every thing is
perfect and exuberant. Here they all flow from one fountain, not as
from a certain spirit, or heat, but as if from an universal quality,
possessing and preserving in itself, all qualities; such as sweetness,
accompanied with fragrance of smell, the vigour of wine, and the
strength of all juices, bright colours, and whatever is perceived by
the taste.”
3. Such then are the arguments which the Platonic philosophy
affords in defence of ideas; the existence of which was so evident to
Plato, that, in the Sophista, he compares those who oppose the
friends of ideas to the giants of old, warring, as it were, on celestial
souls, and such as are engaged in sublime investigations. Let us now
consider to what universals these lucid beings are confined; since,
according to the Pythagoreans and Platonists, there are not ideas of
all universal conceptions. “For, in the first place (says Syrianus[7]),
there are no ideas of things evil and base, because these subsist in
nature rather by a privation and absence of ideas. And, on this
account, they are said to exist contrary to nature. Nor, secondly, of
negations, for these are destructive of the bound and limitation
which is attributed to every thing from the unifying and
comprehending nature of ideas; and hence, separation is rather the
result of material infinity than of that which is formal or ideal. Nor
again, are there any ideas of things which at different times receive
a variety of conditions. For these participate of transmutation from a
moveable cause, but not from the immoveable and stable illustration
of ideas. Nor again of parts, such as the hand, head, fingers, and
the like. For the causes of things existing entire, produce whole
species and forms; not divided about the parts of these, like the
reasons of nature. But neither did these wise men place in intellect
the determinate causes of accidents in bodies, such as sweetness
and whiteness. For they considered that natural reasons were
sufficient for the production of accidents. Nor again, of composites,
as of a wise man. For since ideas are simple, they preside over the
simple essence of every thing. But the composition and division of
things is the business of our intellect; ideas, at the same time, and
that intellection which is co-ordinate to ideas, being exempt from all
these, on account of superlative simplicity. Neither, therefore, must
we establish ideas of things generated from dissimilars, such as
mules; nor of fruit produced by engrafting from different trees. For
all these have a posterior and adventitious generation, and are not
the work of nature alone, nor of nature proceeding according to her
own reasons, but, as it were, compelled to labour contrary to her
own determinations. Hence it is manifest, that all art, which imitates
nature, and alone ministers to the use of mortal life, is separated
from the cause of ideas. But neither are the works which, depending
on the purpose of the soul, are perfected by a concourse of many
causes, and which we are accustomed to call the operations of
fortune, to be conjoined to the cause of ideas. For things which are
there perfected, are eternal, and subsist perpetually the same, free
from the nature of contingent events. It remains, therefore, that
ideas must be confined to universal and perfect essences, and to
whatever confers to their natural disposition; as for instance, to
man, and every thing perfective of man, such as wisdom and virtue.
For ideas existing as the generative and energetic causes of the
perfection of every thing, distribute being to essences, and convert
them to the inexhaustible plenitude of their own omniform natures.”
4. But let us now consider the nature of numbers; for as every
form is a number, according to the Pythagoreans[8], a speculation of
this kind must afford no small light to the arduous investigation of
ideas. Will it not, therefore, be proper, in the first place, to enquire,
with the great Plotinus[9], whether multitude is not a departure and
distance from one, so that infinity itself is a separation from unity in
the extreme, because it is no other than innumerable multitude; that
on this account it becomes evil; and that we contract a similar
nature when departing from intellectual unity, we are divided by
sensible multitude? For a being then properly becomes many, when
no longer able to remain collected in itself, the same, it is diffused
abroad, and thus, being dispersed, is variously extended; so that
when, by diffusion, it is absolutely deprived of unity, it becomes
perfect multitude, destitute of that universal cement, which unites
one part with another. But whenever the conciliating one is present,
then that which was scattered and diffused, becoming permanent by
its bounding power, passes into magnitude. But if any one should
deny the subsistence of unity, asserting that one is no where to be
found, which is not some particular one; and should hence affirm,
that what is called one abstractedly, is only a certain affection of the
soul towards any being; we ask, what prohibits the appellation of
essence, from being nothing more than an affection of the soul, and
consequently the existence of being, a delusion? For we predicate
unity of particulars with as great propriety as being. I am well
aware, that philosophers of the present day will answer, that we
have an evident proof of the reality of being, from its agitating the
soul, and becoming apparent in the phantasy: to which we reply,
that in like manner, the soul is agitated, and the imagination
influenced about the one. For every individual as much excites the
perception of one, as of being.
Besides, it is necessary to enquire whether we behold this
passion and conception of the soul, as one or multitude. And again,
when we say not one, we do not then possess one from the thing
itself; for we say that one is not contained in that individual. And
hence we must possess one in our own nature, and this must reside
in the soul, separate from that which is denominated some particular
one. But here it may be objected, that the one we possess is
received from externals, and is nothing more than a conception of
the mind, produced by the thing itself. For it will be said, that as
multitude is nothing besides a number of individuals, which are
called many, so one is nothing besides one thing; and is formed by
thought separating that one particular from others. To this we reply
as follows:
How can it be consonant to reason to suppose that the
conception of one arises from the sensation of some one particular
subject? For one particular man, who is discerned by sense, is by no
means the same with one itself, since, if this were the case, thought
could never predicate one of that which is not a man. Besides, as
cogitation, on beholding the different positions of things, affirms that
this is here or there, so when it perceives an individual, pronounces
one; for that passion is not vain, nor does it assert one of a non-
entity. Nor must we think it predicates ones, because this individual
is different from another; for when cogitation affirms such a thing is
this, and not another, it declares, in the mean time, that the other is
one. Likewise when it affirms that any thing is this alone, it then
declares, that what is alone is one: on which account, it predicates
one, prior to alone. Besides, if there be multitude, it is necessary
that one should antecede; since when it predicates many, it
pronounces more than one. And when it affirms that an army
contains a multitude of men, it conceives the soldiers reduced to one
order.
For thought, indeed, does not permit multitude to remain perfect
multitude, destitute of the conciliating power of unity; in which very
circumstance, the subsistence of one is evinced; for acutely and
swiftly perceiving the one which results from order, it reduces the
nature of the many into one. Besides, we affirm that a house and an
army are each one, but that a house is more one than an army, on
account of the continuity of its parts. If therefore, one is contained
more in that which is continued than in that which is discrete, and
still more in what is perfectly indivisible, it is evident that the one is
a certain nature, and has a real being. For it is impossible that the
more and the less should take place among things which have no
subsistence. If then it be not possible to understand any thing
without one or two, or some other number, it is by no means proper
to deny existence to that, without which we cannot comprehend the
existence or properties of any being: but it is requisite that nature
should antecede all discourse, and intelligence, which is every where
necessary to their existence.
Again, if unity has no real subsistence, and is nothing more than
a name or conception of the mind, it may be destroyed without the
destruction of its subject. The unity, therefore, of a house may be
taken away, without the ruin of a house. But if a house is nothing
more than certain materials, reduced into one form, this is
impossible. And, on the contrary, the alteration of that subject, of
which unity is predicated, can make no real alteration in unity (on
this hypothesis) any more than the death of a man can affect his
name. When, therefore, a body, of which one was predicated, is
divided into a multitude of parts, there is no real alteration made in
the unity of the body, because unity is nothing more than a name.
It was in consequence of this reasoning, and perceiving that
unity was participated by every being, that the Pythagoreans placed
a super-essential one at the top of the universe, intelligibly
abstracted from all beings in simplicity and excellence of nature. For
they considered, that unless there was a self-subsisting one in all
things, there could neither be universals nor particulars. Not the
first, because they are by nature one and many. But it is requisite
that the one itself, should preside over that which is not one alone.
Nor again, the second, because they are many and one, (that is,
they participate more of multitude than unity, and their nature is
determined more by the many than the one.) And because of things
in participation, unless an unparticipated one is added, there can be
no cause of union to beings; in the same manner as the cause of
essence to beings, is taken away by those who deny that being
itself, is the principle of all essence. For as the good itself, is the one
principle of good to the universe, and is nothing besides good; and
as a self-motive nature, which is nothing besides self-motion, is the
cause of motion to all things; so all things proceed from being itself,
and all united natures receive their union from the one, abstracted
from all things.
Hence (such is the absolute dominion of unity), continued
quantities would have no existence without its participation; for
when they are divided, so far as they lose unity, they change their
being into some other form. Hence, the bodies of plants or animals,
which are each of them one, when they fly from unity, and are
dissipated into multitude, immediately lose the essence they
formerly possessed, and become something else; which new state of
being they likewise possess so far as they are one. Add too, that
health then flourishes in the corporeal frame, when the body is
conciliated into one; then beauty flourishes, when the power of one
connects the members into proportion and consent; and then virtue
reigns in the soul, when the soul is reduced into one similitude with
that which is divine.
5. But let us now investigate the nature of numbers. All number,
according to the Pythagoreans, originates from unity and the
indefinite duad; the first having the relation of form, and the second,
that of matter to all the orders of numbers. But they likewise divided
number into two kinds, essential and monadic. The essential number
they considered as first subsisting in the intelligible world, together
with being, and from thence distributed into all the various
gradations of forms. But the monadic, or that which is composed
from certain units, they justly considered as nothing more than the
image of essential number. And with respect to the numbers which
the human soul participates, these from its imperfect condition have
a middle subsistence; i. e. they exist in a vital, gnostic, and
speculative, but not in an operative manner. Hence, when receiving
one thing with another, we affirm, that they are two, as a dog and a
man, or two men; or when we compute more than two, as ten, and
say that there is a decad of men, this number is not essential to the
two or ten individuals, nor is it to be conceived as subsisting in
sensible natures; but it is purely quantity. But when we distribute
this ten, into units, we produce the principle of quantity, and
generate a subject in opinion[10], capable of participating the
essential decad of our soul. But when, considering man in himself,
we affirm that he is a certain number, as the duad, composed of
animal and rational, we do not observe one mode in this predication;
but so far as by a discursive operation of the soul, we numerate, we
effect a particular quantum; but so far as the subjects are two, and
at the same time both one (since one fills the essence of both, and
in both unity is contained), we pronounce another, and an essential
number: and this duad is not of a posterior origin, nor alone signifies
a certain quantity, external to the subject, but a duad subsisting in
the essence of man, and containing his nature. For here we do not
produce a number by a discursive operation, while we pursue
essential natures. But when we number any ten things, which are
not connected by any conciliating unity, like a choir, or an army, then
this decad, which we predicate of the ten particulars, subsists alone
in our numerating soul, which renders the ten individuals in opinion,
a definite quantum. But in a choir, or an army, essential number is
participated exclusive of that which subsists in our soul. And if it be
enquired how number subsists in the human soul, we must say, that
the soul, by her self-moving energies, procreates number, while she
numerates, and by this energy, causes the existence of quantity; in
the same manner as in walking, we give rise to a certain motion.
Thus, monadic number, or a collection of units of various kinds,
subsists in opinion, in a manner correspondent to that of geometrical
figures; and by this means participates the essential number of the
soul. For as a triangular figure in the phantasy, is the recipient of a
triangular nature, or of triangle itself; so every three units in opinion,
receive the essential triad of the soul, and, by this means, form a
definite quantum.
In short, as in every being we may discern the resemblances of
matter and form, so in the pentad, or any other number, the five
units, which are the subject of participation, and the quantity of the
number, originate from the duad; but the form, that is the pentad
itself, from unity. For every form is an unity, which unites its subject
quantity, and connects it with its ideal species. It is, therefore,
requisite to understand, that the two principles of mathematical
numbers are resident in our souls, with which every mathematical
number is co-existent; I mean unity, comprehending in itself all the
forms of numbers, and which corresponds to unity in intellectual
natures; and the duad, endued with a generative power, of a
formless nature, and of infinite virtue; and which is called boundless,
on account of its being the image of never-failing and intelligible
duality. Hence, the unity of the soul, with a never-ceasing energy,
continually distinguishes and forms all the orderly processions of her
numbers, suffers no vacuum to intervene, and leaves no quantity
formless and innumerable. Hence too, no essential number of the
soul, as for instance, the pentad, is composed from substance and
accident, as a white man; nor from genus and difference, as man
from animal and biped; nor again, from five unities mutually
touching each other, like a bundle of wood; nor from things mixt,
like water and wine, nor from things subsisting by position, in the
manner that stones compose a house; nor lastly, does it subsist like
things numerable; for it is not because they are composed from
indivisible units, that they possess any thing besides units. For many
points are indivisible, yet quantity is not produced on this account;
but because they participate of two natures, the one corresponding
to matter, and the other to form. Lastly, it is not proper to say, that
the number seven (and so of any other number), is composed from
the triad and the tetrad; for units, indeed, composed with units,
form a subject adapted to the reception of the heptad, or the ideal
and essential number seven; but the definite numerical quantity
seven, is formed from so many units, and the ideal heptad. Hence,
as the soul of the shipwright gives form to the timber, from her
inherent art; so the numerative soul, from the unity endued with the
relation of a principle which she possesses, gives form and
subsistence to all her inherent numbers. But there is this difference
between the two, that the shipwright’s art is not essential to our
nature, and requires manual operation, because it is conversant with
sensible matter; but the numerative art is essentially inherent in the
soul, and is therefore present with all men, and possesses an
intellectual matter, which it easily forms without the assistance of
time. And this, perhaps, is what deceives many, who think that the
heptad is nothing more than seven units. For the imagination of the
vulgar, unless it first perceives a thing destitute of ornament, and
afterwards the operations of the adorning artificer supervening its
nature; and lastly, beholds the thing perfect, and invested with form,
cannot be persuaded that it possesses two natures, the one
formless, but the other endued with an energetic and forming power.
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