unavailability, a double-edged legal weapon


History of a concept. “Just as I choose the ship, if I want to sail; of the house, if I need a home, as well as the kind of death by which I would like to get out of here. » Seneca’s quotation, taken from the Letters to Lucilius, is as famous as it is implacable: at first glance, the possibility of choosing one’s death seems to fall within the domain of individual freedoms. This is still today one of the arguments used by activists for the right to die with dignity, while the citizens’ convention on the end of life will begin its work on December 9. In France, the free disposition of one’s body, of the attributes of one’s personality (surname and first name, sex, parentage, etc.) and of one’s life, however, has limits. And among the arguments mobilized to justify them is a principle unknown to the general public: the notion of the unavailability of the human body and of human life.

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Unavailability is a very old legal concept: already, in Roman law, certain things or values ​​– such as a bridge, a road, or even freedom – could be declared “unavailable”. “It meant, essentially, that things were assigned to a use and could not cease to be so – and therefore no one could dispose of them by alienating the object. He was thus placed “out of commerce” ”, explains Marie-Xavière Catto, lecturer in public law and specialist in bioethics law. “Out of trade” then means that such an “unavailable” object could not be transferred or sold.

“This is the case for many things: in public law, French territory, for example, is unavailable; in the field of environmental law, the air, the sea, the rivers are unavailable; and the same is true in canon law for objects of religious worship (res sacred) », lists Daniel Borrillo, a lawyer specializing in bioethics. And if in the XIXe century, the principle is sometimes applied to the human body in criminal law, it is then a question of signifying that the body is the object of a protection which is of public order and that it cannot be undermined by private agreements. It is according to this principle that the judges of the time thus condemn the duel as homicide.

New uses

In the second part of the XXe century, however, this centuries-old notion is suddenly being used in new ways in France. Since the 1970s and the laws on contraception and abortion, the philosophical and legal context has indeed begun to change. “We then see the foreshadowing of a right based more on freedom and autonomy of will. Professors of public law are beginning to consider self-determination as a fundamental freedom of the individual. notes Daniel Borrillo. However, faced with this progressive current, another current, mainly carried by professors of private law, will use the principle of unavailability to oppose it to the individual and set limits to this freedom.

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