LINKÖPING STUDIES IN ARTS AND SCIENCE No. 169

Den bioetiske udfordring

Et retspolitisk studie af forholdet mellem etik, politik og ret i det lovforberedende
arbejde vedrørende bio- og genteknologi i Danmark, Norge og Sverige

Thomas Achen

Akademisk avhandling
Som för avläggande av filosofie doktorsexamen vid Linköpings Universitet,
kommer att offentligt försvaras i hörsal Planck, Fysikhuset, Universitetsområdet Valla,
fredagen den 23 januari 1998 kl. 13.15.

ABSTRACT

Biotechnology and genetic engineering raise a number of new ethical problems. Consequently, over the past 15 years, several European countries, including the Nordic countries, have passed new laws in an attempt to deal with the ethical problems posed by biotechnology. These developments raise the question of how to formulate legislation to regulate both the technical and ethical aspects of biotechnology and genetic engineering. Is it indeed possible to formulate a valid ethical framework in a thoroughly secularised society? How has this been coped with politically? And what is the nature of the relationship between ethics, politics and the law, that emerges from this process? The regulation of biotechnology is very often carried out by legal means in modern society. The thesis shows that the distinction between ethics, politics and the law - inherent in the Scandinavian tradition of legal realism - is not sustained in the law preparatory Process in the fields of biotechnology and genetic engineering in Denmark, Norway and Sweden. The analysis reveals that the tendency for ethics, politics and the law to merge is expressed in the new normative reflexivity which characterizes legislation in this area. The thesis defines this process in terms of four elements: a proceduralisation of ethics, a democratisation of ethics; negotiated development of norms, and a moralisation of politics and the law. These new tendencies suggest a need for a new analytical framework. The thesis argues that reflexive law theory and discourse ethics theory can provide a more adequate understanding of the new normative reflexivity inherent in the legislation examined. In a society characterised by moral, social, cultural and political pluralism it is of profound importance to contemplate how legal and political norms are developed. Furthermore, it is highly pertinent to consider how we can conceive these processes in theoretical terms.

Index terms: Ethics, Bioethics, Law, Legal Positivism, Legal Realism, Discourse Ethics, Reflexive Law, Legislation, Law Preparatory Process, Biotechnology, Genetic Engineering, Denmark, Norway, Sweden, Politics.

Department of Theme Research - Technology and Social Change
Linköping University, S-581 83 Linköping, Sweden.
Linköping 1997

ISBN 91-7219-126-0 ISSN 0282-9800