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French

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10670/1.1czr72

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“Scientific data and general mother experience” to support “the separate life of the child in utero matris already before birth”. Jean Carbonnier’s opinion on the criminal status of the unborn child
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Abstract

Jean Carbonnier has also been amicus curiae. He was indeed consulted by the Cour de cassation on the question of whether involuntary homicide was possible on a yet unborn child. `!-- 1160:'resume moins' --bTo this very delicate question, very heavily laden and at the intersection of numerous disciplines, he offered a very nuanced answer. In the first place, one must avoid using such terms as « person », « juridical » or « human », as the legislator had refused to answer this philosophical question which divided society. But it was necessary to retain the involuntary homicide qualification, by basing oneself on penal law which protects human « life », understood as a « phenomenon », and by considering as « established by scientific knowledge as well as by the general experience of mothers that, before birth, the child in utero matris has a distinctive life, a double assertion which the legislator has translated into the article 1 of the January 17th, 1975 law, as well as in the article 16 of the civil Code ». `!-- 1161:'RESUME' --bThis opinion rendered by Jean Carbonnier is a testimony to his admirable talents for juridical technique and also shows him as an inspired jurist open to other horizons, such as sociology. It remarkably illustrates his « philosophical » choices : to relegate metaphysical questions outside the law, to respect the division of opinions by finding compromises, to reject extreme theses, to search for a concrete right, to rest juridical rules on the facts, to base the law on empirical observations. Unfortunately he did not receive the hearing he deserved. Indeed, his call for a « non-droit » has been heard and still determines to a large extent the silence of the law on the question of whether it is more appropriate to consider the embryo as a person or as a thing. Yet the wish that had been formulated to see protected the distinctive life of the child in utero matris has convinced neither the Cour de cassation, nor the legislator, nor even the European Court for the protection of human rights and fundamental freedoms

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