Posted by Ivo Cerckel on February 23rd, 2014
Dear Commissioner Borg,
Most people agree with conclusions reached through immediate inference.
But, if they are already able to find the major and minor premises, most people are afraid of the conclusions reached through syllogisms.
The press is reporting that on Tuesday 25 February 2014 you will meet three persons who claim to be representatives of the UK’s remaining 469 thalidomiders. They will be accompanied by a cross-party selection of British Members of the European Parliament (MEPs) which arranged for the meeting. You will be holding roundtable discussions with them in Strasbourg.
Those three persons want you to mediate between them, Grünenthal GmbH, i.e., the maker of thalidomide, and the German Leviathan, their ultimate goal being a financial settlement from Grünenthal GmbH, known fifty years ago as Chemie Grünenthal GmbH.
One of your main questions after your first meeting on Tuesday 14 January 2014 – without the MEPs – at your Brussels headquarters is why the German Leviathan should be involved.
The three so-called representatives want Grünenthal GmbH, hereafter Grünenthal, which has never paid a penny to UK, Swedish and other European victims of its drug, which the European Leviathans labelled the “wonder drug”, to own up to its “moral” duties and compensate those its product damaged for life.
Grünenthal refused to intervene in the recent Australian New Zealand compensation case which was settled between the plaintiffs and the distributor of thalidomide in Australia and New Zealand.
It appears therefore that it will be impossible to convince Grünenthal to agree to an amicable settlement with the EU as judge – and … party.
Yes “party”, see the final section 10 of this letter.
One of the representatives’ main arguments is that the German legislator in 1971 created the Conterganstiftung, the Thalidomide Foundation, whose starting capital was provided jointly by the said Leviathan and by Grünenthal.
Payments to thalidomiders born in West Germany would be made, and are still made, through the said Stiftung.
The Act/Statute/Law relating to the Conterganstiftung went on to exonerate Grünenthal from future payments to the Stiftung which provides payments to German-born thalidomiders only. Payments to other thalidomiders cannot possibly have been affected by this Act/Statute/Law. German legislators and courts have indeed no jurisdiction to declare their Diktat(for legislators)/ruling(for courts} in a case involving German parties living/established in Germany applicable outside Germany.
In two judgments of 1976 and 2010, the German constitutional went to great lengths to demonstrate that by doing this the German Leviathan had not recognised its liability for the thalidomide scandal.
If you are interested, I went – to great lengths also – to understand these judgments
(BVerfGE 42, 263. of 08 July 1976 and BVerfG, 1 BvR 1541/09 of 26 February 2010)
and criticise them
by posting, after having posted comment in French under the original post, also English comment on Le Grand Portail Philosophie Thomas d’Aquin under this post:
25e anniversaire : Joseph Wresinski, celui qui remue la vie
Date: 14-02-2013 10:39
But again, German courts have no jurisdiction to declare their ruling in a case involving German parties living/established in Germany applicable outside Germany.
So thalidomiders born outside Germany (and who never lived in Germany) are not bound by these judgments.
They can therefore invoke the Conterganstiftungsgesetz, the Act/Statute/Law relating to the Conterganstiftung, as West Germany recognising its liability for the thalidomide scandal.
West Germany recognised its liability.
Why do UK thalidomiders continue to attack Grünenthal?
As I said in section 2, the three so-called representatives want Grünenthal to own up to its “moral” duties and compensate those its product, which the Leviathans labelled the “wonder drug”, damaged for life.
My understanding of tort law is that before anybody can be asked, c.q. condemned, to pay damages to somebody else, the latter must prove a tort or negligence on the part of the former.
The representatives seem not even to be bothering about demonstrating a tort or negligence on the part of Grünenthal. Their only argument seems to be that the said private limited company manufactured the product and that it therefore has a “moral”, not legal, duty to compensate the victims of its product. Compensate to what extent and for which damage which would not yet have been compensated – they don’t say.
That’s the first step towards the answer to the question as to the reason of the involvement of the German Leviathan in the roundtable discussions which Grünenthal will not agree to attend.
Legal tabloids tell us that thalidomide is an example of the development-risk defence which allows producers
[and, I submit, governments licensing the products,]
to escape liability if they prove that the state of scientific and technical knowledge at the time when they put the product into circulation
[, c.q., I submit, at the time when they allowed the product onto “their” markets,]
was not such as to enable the existence of a defect to be discovered,
as defined at present “a contrario” in article 15(1)(b) of the 1985 EEC Product Liability Directive, formally Council Directive 85/374/EEC of 25 July 1985 on the approximation of the laws, regulations and administrative provisions of the Member States concerning liability for defective products
which provides that:
“each Member State may by way of derogation … maintain … or provide in [its] legislation that the producer shall be liable even if he proves that the state of scientific and technical knowledge at the time when he put the product into circulation was not such as to enable the existence of a defect to be discovered.”
Dr. Herman Cousy, professor emeritus from the law department of the K.U. Leuven, reports in note 28 of his 1996 paper “The Precautionary Principle: A Status Questionis” published in the “Geneva Papers on Risk and Insurance – Issues and Practice”, also available on the website of the “Geneva Association”, l’”Association Internationale pour l’Etude de l’Economie de l’Assurance”, the leading international think tank of the insurance industry, that:
“One often cites the Thalidomide (Contergan) case as an example of a development risk situation, although it appears that when thalidomide was brought onto the German market, the product had been banned in France.”
And Professor Cousy goes on to ask in the note:
“Can it be readily upheld, under such circumstances, that the conditions for a “development risk” situation situation were fulfilled?” (1)
as The Sunday Times said on 08 February 2009
“Grünenthal, the maker of the drug, apparently purchased the trade name of the drug – Contergan – and therefore probably the substance itself, from a French firm, Rhône-Poulenc, which was under Nazi control during the war years.” (2)
Thalidomide which was developed in France had been banned in France.
Why did West Germany nevertheless allow it to its market?
West Germany allowed to its market. Others therefore followed the example.
Fortunately, the example was not followed by East Germany.
as Die Welt, a newspaper, reported on 29 January 2014,
“the (German) Land (state) of North Rhine-Westphalia announced on 28 January 2014 that it will examine its role in the thalidomide scandal.” (3)
By the late 1950s, our enlightened society had indeed already entrusted Leviathan with the task of ensuring that only safe medicines are marketed.
That is what is called “government control of medicines”, “staatliche Arzneimittelkontrolle”.
Section 23 of the quoted 2010 judgment of the German constitutional court speaks about “mangelnde staatliche Arzneimittelkontrolle” which I would translate as “failing government control of medicines”. (4)
It is possible that in those days the control requirements or control criteria were less stringent than today, the fact is that they existed. A product whose teratogenic effects were known had to be refused access to the market by the competent bureaucrats. If not, why does Leviathan extract currency from its subjects through taxation in order to pay those bureaucrats?
Third step towards the answer to the question as to the reason of the involvement of the German Leviathan in the roundtable discussions which Grünenthal will not agree to attend.
Thalidomide was first marketed in 1957, the same year that the European Economic Community (EEC)-Treaty was signed at Rome.
European law has become the corner stone (“la pièce maîtresse”) of national legislations concerning consumers.
(Jean-Sylvestre Bergé and Sophie Robin-Olivier, “Introduction au droit européen”, Presses Universitaires de France, 2008, 1st ed., section 377)
In order not to make it too obvious that thalidomide was necessary to achieve this,
the then-EEC waited until 25 July 1985 to adopt its Product-Liability Directive 85/374 EEC,
n’est-ce pas Jacques H. Herbots?
The first step towards the answer to the question as to the reason of the involvement of the German Leviathan in the roundtable discussions is that the representatives of the UK thalidomiders seem not even to be bothering about demonstrating a tort or negligence on the part of Grünenthal GmbH. Their only argument seems to be that the said private limited company manufactured the product.
The second step is that when thalidomide was brought onto the German market, the product had been banned in France.
The third step towards the answer to the question as to the reason of the involvement of the German Leviathan in the roundtable discussions is that in order not to make it too obvious that thalidomide was necessary to achieving that European law became the corner stone (“la pièce maîtresse”) of national legislations concerning consumers, the then-EEC waited until 25 July 1985 to adopt its Product-Liability Directive 85/374 EEC.
These two latter steps should each serve as the minor premise of two different syllogisms.
In section 8, I will therefore try to explain what is a syllogism, what are its premises and what is an immediate inference.
Once I have done that, my argument that if most people agree with conclusions reached through immediate inference, but that, if they are already able to find the major and minor premises, most people are afraid of the conclusions reached through syllogisms, becomes understandable I think.
In sections 9 and 10, I will construct two syllogisms. As most people refuse to accept the conclusions of these syllogisms, the validity of my argument that most people, if they are already able to find the major and minor premises, are afraid of the conclusions reached through syllogisms will thereby have been demonstrated.
Mr Commissioner, you are not “most people” and should thus accept these conclusions – although, I agree, they are somewhat unpleasant for your employer.
Before moving to section 8, I will quote Josef Pieper:
“What is self-evident is not discussed. It is taken for granted, “it goes without saying”. “Cela va sans dire.” One only has to ask: what exactly is it that is taken for granted and so many remain unexpressed?”
(Josef Pieper, “The Negative Element in the Philosophy of Saint Thomas Aquinas”, in: Josef Pieper, “The Silence of Saint Thomas – Three Essays”, translated by John Murray, S.J., and Daniel O’Connor, South Bend, Indiana, USA : Saint Augustine’s Press, 1999, 43, p. 45)
I do thus now give the definition of syllogism, premise and immediate inference and I differentiate the immediate inference from the syllogism.
Andrew H. Bachhuber, S.J., “Logic”, New York, Appleton-Century-Crofts, 1957, p. 87
Syllogism = any argumentation in which from two propositions, called the premises, we infer a third proposition, called the conclusion, which is so related to the premises taken jointly, that if they are true, it must also be true.
François Chenique, “Éléments de Logique Classique – L’art de penser, de juger et de raisonner”, Paris, L’Harmattan, 2006, 2nd ed., p. 204
In order to constitute a reasoning, there must be a passing from one truth to another and the second truth must not be only a re-formulation of the same truth.
(Pour constituer un raisonnement, il faut qu’il y ait passage d’une vérité à une autre et qu’il ne s’agisse pas d’une autre reformulation de la même vérité.)
Chenique, op. cit, loc. cit.
Reasoning is a discourse, i.e., a movement.
Reasoning implies a movement and a causal relationship.
(Le raisonnement est un discours, c.à.d. un mouvement.
Le raisonnement implique un mouvement et une relation causale.)
Ivo: movement must be initiated, must have a cause,
reasoning implies a causal relationship, said Chenique.
The principle of causality says that nothing can be the cause of itself.
(Alvira, Clavell and Melendo, “Metaphysics”, Manila, Sinag-Tala Publishers, 1991, p. 181)
Bachhuber, op. cit., p. 51
An immediate inference consists in passing directly, (i.e., without the intermediacy of a middle and second proposition) from one proposition to another that is a partial or complete reformulation of the very same truth expressed in the original proposition.
Chenique, op. cit., p. 195
For some authors, immediate inference is a mode of reasoning by which one passes from the truth (or falsity) of one proposition to the truth (or falsity) of another proposition without middle term (ergo the name immediate).
Chenique, on the contrary, argues that if there is no middle term, there is no reasoning.
(Pour certains auteurs, l’inférence immédiate est un mode de raisonnement qui n’exige pas de moyen terme (d’où sa qualification d’immédiate), et dans lequel on passe directement de la vérité (ou de la fausseté) d’une proposition à la vérité (ou à la fausseté) d’une autre proposition.
Nous maintenons cependant que si le moyen terme est absent, il n’y a pas de raisonnement.)
Ivo agrees with Chenique on this point.
Juan Jose Sanguineti, “Logic”, Manila, Sinag-Tala Publishers, (first published in 1982 in Spanish by the Ediciones Universidad de Navarra in Pamplona), 1992, p. 50
Speech is “the manifestation of the interior word conceived in the mind”, it is the external expression of concepts
(Saint Thomas Aquinas, “Quaestiones Disputatae De Veritate” (“Disputed Questions on the Truth”), question 9, article 4 and question 5, article 1)
Let me again remind you that if most people agree with conclusions reached through immediate inference,
but that, if they are already able to find the major and minor premises, most people are afraid of the conclusions reached through syllogisms.
I will now construct the (first) syllogism with as minor premise the second step towards the answer to the question as to the reason of the involvement of the German Leviathan in the roundtable discussions.
This second step was, and thus the minor premise of the (first) syllogism is,
“when thalidomide was brought onto the German market, the product had been banned in France”.
No dangerous drug can be brought onto the market.
The banning in France of thalidomide demonstrated in the open – to the West Germany – that thalidomide was a dangerous, c.q., teratogenic, drug.
West Germany could not bring thalidomide onto “its” market.
“What is self-evident is not discussed. It is taken for granted, “it goes without saying”. “cela va sans dire.” One only has to ask; what exactly is it that is taken for granted and so many remain unexpressed?”, said Pieper.
Yes, in this syllogism there is “something” which “goes without saying”, i.e., the very fact, mentioned in section 23 of the quoted 2010 German constitutional court (“Bundesverfassungsgericht”) judgment, and referred to in section 5 of this letter, that our enlightened society had entrusted – already before 1957 – guv’mint, a.k.a. Leviathan, with the task of ensuring that only safe medicines are marketed.
Of course, this conclusion was not a reformulation of a existing truth through immediate inference, but resulted from a syllogism and most people, if they are already able to find the major and minor premises, are afraid of the conclusions reached through syllogisms.
Philosophising about who’s better qualified to include “something” which “goes without saying” into her reasoning or immediate inference would require going into such questions as whether toddler- and child-thalidomiders should be forced to wear a prosthesis on their shortened limbs (see my “Témoignage thalidomide – Les Monstres de Heidelberg” on top of this page) and this would be outside the ambit of this letter.
Now I come to the interesting part of this letter.
I must construct a syllogism whereby I use as minor premise:
“in order not to make it too obvious that thalidomide was necessary to achieving that European law became the corner stone (“la pièce maîtresse”) of national legislations concerning consumers,
the then-EEC, whose founding treaty was signed at Rome in the same year as thalidomide was first marketed, waited until 25 July 1985 to adopt its Product-Liability Directive 85/374 EEC”.
Let me rephrase this minor premise as:
“the EEC tried to hide that the bringing onto the market of a dangerous, i.e. teratogenic, drug was necessary for European law becoming the corner stone (“la pièce maîtresse”) of national legislations concerning consumers”.
Let me choose as major premise, the same one I used in section 9 for the first syllogism.
“no dangerous drug can be brought onto the market”.
I prefer not to be too explicit about the conclusion of the syllogism I should construct with those two premises.
I hope however that even some eurocrats retain some semblance of rationality and can construct it for themselves and that you will not, like the three so-called representatives of the UK thalidomiders, deduce liability from the manufacturing of a product which, after having been banned in France, was sent to the common market minus France to promote the interests of some French (future – they would only become it on 01 January 1958, when the comic market entered into force) eurocrats.
(Belgian Leviathan didn’t take steps to prosecute my father, an M.D., upon my birth 20 months after the 30 April – 1 May 1960 Düsseldorf alarm (5)),
now since 13 years in South-East Asia where life is cheaper,
before that 38 years in Europe,
for my first belgian franc of compensation,
“The Precautionary Principle: A Status Questionis”, in:
“The Geneva Papers on Risk and Insurance – Issues and Practice”,
p. 163, footnote 28
From The Sunday Times
February 8, 2009
Thalidomide ‘was created by the Nazis’
Link does no more work
Contergan-Skandal wird untersucht
Re: 25e anniversaire : Joseph Wresinski, celui qui remue la vie
Auteur: Ivo Cerckel
Date: 03-10-2013 01:40
Chronik des Contergan-Skandals – Contergan – WDR.de
Chronik des Conterganfalls
Tragödie – Katastrophe – Skandal?
30. April/1. Mai 1960:
Auf einem Neurologen-Kongress in Düsseldorf berichtet der Neurologe Ralf
Voss über die Nervenschädigungen, die seinen Beobachtungen zufolge durch
Thalidomid verursacht werden. Die Forschungsabteilung von Grünenthal
versucht daraufhin, die Nervenschädigungen an Ratten zu reproduzieren – ohne Erfolg. Grünenthal-Forschungsleiter Mückter schließt daraus, dass es sich um besondere Situationen handelt, für die Contergan nur selten als Ursache infrage kommt.
27. November 1961:
Die Firma Grünenthal kündigt in einem Telegramm an das Düsseldorfer Innenministerium an, ihre Thalidomid-Präparate im In- und Ausland sofort aus dem Handel zu nehmen.