Table Of ContentInternational Library of Ethics, Law, and the New Medicine78
Erick Valdés
Juan Alberto Lecaros Editors
Biolaw and
Policy in the
Twenty-First
Century
Building Answers for New Questions
International Library of Ethics, Law,
and the New Medicine
Volume 78
Series editors
David N. Weisstub, Faculty of Medicine, University of Montreal, Montreal, QC,
Canada
DennisR.Cooley,History,Philosophy,andReligiousStudies,NorthDakotaState
University, Fargo, ND, USA
Founded by
Thomasine Kimbrough Kushner, Berkely, USA
David C. Thomasma, Dordrecht, The Netherlands
David N. Weisstub, Montreal, Canada
The book series International Library of Ethics, Law and the New Medicine
comprisesvolumeswithaninternationalandinterdisciplinaryfocus.Theaimofthe
Series is to publish books on foundational issues in (bio) ethics, law, international
health care and medicine. The volumes that have already appeared in this series
address aspects of aging, mental health, AIDS, preventive medicine, bioethics and
many other current topics. This Series was conceived against the background of
increasing globalization and interdependency of the world’s cultures and
governments, with mutual influencing occurring throughout the world in all fields,
most surely in health care and its delivery. By means of this Series we aim to
contribute and cooperate to meet the challenge of our time: how to aim human
technology to good human ends, how to deal with changed values in the areas of
religion, society, culture and the self-definition of human persons, and how to
formulate a new way of thinking, a new ethic. We welcome book proposals
representingthebroadinterestoftheinterdisciplinaryandinternationalfocusofthe
series. We especially welcome proposals that address aspects of ‘new medicine’,
meaning advances in research and clinical health care, with an emphasis on those
interventions and alterations that force us to re-examine foundational issues.
More information about this series at http://www.springer.com/series/6224
é
Erick Vald s Juan Alberto Lecaros
(cid:129)
Editors
Biolaw and Policy
in the Twenty-First Century
Building Answers for New Questions
123
Editors
ErickValdés JuanAlbertoLecaros
International Network of Biolaw Centerfor Bioethics
Washington, DC,USA Universidad delDesarrollo
Santiago, Chile
ISSN 1567-8008 ISSN 2351-955X (electronic)
International Libraryof Ethics, Law,and theNewMedicine
ISBN978-3-030-05902-6 ISBN978-3-030-05903-3 (eBook)
https://doi.org/10.1007/978-3-030-05903-3
LibraryofCongressControlNumber:2018964243
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This book is dedicated to the memory of
Peter Kemp.
Great colleague and good friend.
Foreword
Ethics and law are different. One obvious way of showing that they differ is by
pointing to a law that is unethical, such as the laws permitting slavery in the
southern states of the USA, or those enforcing racial segregation in South Africa
duringtheapartheidera.Granted,undersomeconceptionsoflaw,thoselawswere
not valid laws, precisely because they violated fundamental moral principles. This
is, however, a conception of law that legal positivists reject, and it is not obvious
that they are mistaken about that.
There is a more systematic way in which ethics and law differ, on any con-
ception of law, and even when we are comparing sound ethical judgments and
laws that are ethically justifiable. Ethical judgments can be made in very specific
situations, in fact in situations that are unique. We can also make ethical judg-
mentsinprivate, Iourown minds,withoutexpressingthemtoanyoneelse.Itcan
even be right, as the nineteenth-century English utilitarian Henry Sidgwick
argued, to do something in secret that it would be wrong to do if it were done
openly.Sidgwick’sassertionthatethicscanbeesotericiscontroversial,butitdoes
not involve a contradiction. Acts that become widely known may have conse-
quencesthatareverydifferentfromactsthatremainsecret.Thatmakesithardfor
aconsequentialisttodenythatdifferentmoraljudgmentsmayapply,dependingon
whether or not the act can be kept secret (Sidgwick 1907; De Lazari-Radek and
Singer 2014).
Law,ontheotherhand,isinherentlypublicandnormallyappliestoawiderange
of situations. For that reason in certain circumstances, it can, surprisingly, be eth-
icallyjustifiabletobreakevenagoodlaw,thekindoflawacountryoughttohave.
One well-knownexampleinvolvesthelaw againsttorture,andthe“ticking bomb”
scenario that philosophers often discuss. In this scenario, a terrorist has planted a
nuclear bomb somewhere in the midst of a large city, primed to go off in a few
hours.Unlessthebombcanbefoundanddefused,millionsofinnocentpeoplewill
die,andmillionsmorewillsufferhorriblyfromradiationsickness.Theterroristhas
vii
viii Foreword
been captured, but refuses to say where the bomb is. A psychological profile
suggests that torture may induce him to talk. Arguably, in these extraordinary
circumstances, the use of torture would be justifiable. Whether or not it would be,
however, is clearly a different question from asking whether there should be laws
against torture, and whether these laws should permit exceptions. It is at least
possible that without an absolute prohibition of torture, it will be used in more
frequently occurring circumstances, when it isclearlynotjustified—as it was used
byUSmilitaryandintelligencepersonnelinIraqatAbuGhraibprison,in2003.If
thatisthecase,thentortureoughttobeabsolutelyprohibited,bylaw,evenifthere
areconceivablecircumstancesinwhichitwouldberighttotorture.Inmorenormal
circumstances,thosewhomaybetemptedtotortureoughttoknowthattheywillbe
breakingthelawandriskingseverepunishment,forthentortureislesslikelytobe
used when it is not justifiable.
I offer this example to illustrate a distinction between ethics and law that can
shedlightonthedifferencebetweenbioethicsandbiolaw.Bioethicsisthestudyof
ethical issues raised by developments in the biological and health sciences (wider
definitions also exist, but this one will do for present purposes). Biolaw can be
defined,inaparallelmanner,asthestudyofhowlawshouldrespondtothosesame
developments in the biological and health sciences that raise the ethical issues that
constitute the field of bioethics.
This understanding of bioethics and biolaw as parallel but independent disci-
plines coheres with Erick Valdes’ insistence, in one of his essays in this volume,
that biolaw isnotparasitical upon bioethics, buthasan independent fieldofstudy.
Thisfieldofstudywilldrawuponthesocialsciencestoascertaintheconsequences
of proposed laws and regulations. Nevertheless, as Valdes (2015) again makes
clear, questions about desirable forms of legislation and regulation are, like any
questions of public policy, normative questions that cannot be answered by an
appeal to facts alone. Ethical judgments must be made about the values to be
achieved by the legislation or regulation and about any other ethical constraints,
whether absolute or pro tanto, that may be applicable.
Bioethics first developed as a field of study in the 1960s, when philosophers,
theologians, and lawyers began to take an interest in what had, until then, been
considered to be “medical ethics” and thus was left to physicians. Biolaw, as a
separate discipline, is even younger. There is therefore still much work to be done
in defining the field, setting out the basic principles, and applying it to specific
questions, such as genetic selection and genetic modification, the treatment of
human embryos and non-human animals, standards for experiments involving
human subjects, and so on. There are also useful lessons to be drawn from
observing the development of biolaw in different parts of the world.
Foreword ix
Certainly,theessaysthatfollowwillmakevaluablecontributionstothesetasks.
Therefore, this pioneering anthology will, by its very existence, help to shape the
future of the field it defines and at the same time contribute to the progress of that
field.
Peter Singer
Princeton, USA/ Princeton University/
Melbourne, Australia University of Melbourne
References
De Lazari-Radek, K., & Singer, P. (2014). The point of view of the universe: Sidgwick and
contemporaryethics.Oxford:OxfordUniversityPress.
Sidgwick,H.(1907).Themethodsofethics(7thed.).London:Macmillan.
Valdes,E.(2015).Biolaw,geneticharmandfourthgenerationhumanrights.BoletínMexicanode
DerechoComparado,48(144),1197–1228.
Acknowledgements
We thank Springer for agreeing to publish this book and believing in the impor-
tanceofplacingpressingissuesrelatedtobiosciencesandtheirbiojuridicalanalysis
in the international scenario.
Inaddition,wewanttoexpressourrecognitiontoProf.CarlosRafaelDomínguez,
of the National University of Mar del Plata, Argentina, who translated several
chapters into English. His work, which belongs to the person who has achieved,
through talent and years, the mastery of his art, allowed a timely edition and the
consequent publication of this book without further delay.
Princeton, NJ, USA Erick Valdés
Santiago, Chile Juan Alberto Lecaros
November 2018
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