INTRODUCTION

The exclusion from patentability on the ground of immorality specified in Article 53(a) of the European Patent Convention (EPC) and in Article 6(1) of Directive 98/44/EC on the Legal Protection of Biotechnological Inventions (Biotechnology Directive) has proved highly controversial. While, for example, UK trademark law excludes the registration of marks that are contrary to public policy or to accepted principles of morality (s. 3(3)(a) Trade Mark Act 1994), copyright law generally has no explicit immorality exclusions. However, we argue that commitment to human rights as conceived in the United Nations Declaration of Human Rights 1948 (UDHR) constitutes a commitment to the existence of morality conceived of as a system of practical rules governed by a categorical impartial imperative, the principle of generic consistency (PGC) of the American moral philosopher Alan Gewirth:

Thought of as the categorical imperative, the PGC is a principle with which all actions and rules for action must be consistent unconditionally, with the implication that no rules or actions inconsistent with the PGC may be regarded as valid by any legal system that professes adherence to human rights per the conception thereof in the UDHR.

This chapter has five main sections. In the first (section II), we discuss the concept of morality and provide reasons to focus on the conception of it as consisting of rules governed by a categorical impartial imperative in any system of rules that recognises that there are human rights per the UDHR. In section III, we briefly outline Gewirth’s argument for the PGC being the categorical imperative, and argue that, whether or not Gewirth’s argument is valid, the PGC must be taken to be the supreme principle of any system of rules built around the idea that there are human rights per the UDHR. In section IV, we explain the implications of this for the relationship between law and morality in any legal system that professes adherence to human rights per the UDHR.