The present book is the fifth volume of the series Studies in the Philosophy of Law which has appeared since 2001. The previous three volumes had a monographic character, the last one being devoted to the various issues of bioethics, law and philosophy and the previous one to the topic of the economic analysis of law. Both of these were published in English. This volume is part of a research project “Biojurisprudence” pursued from 2007 through 2010 by the Department of Philosophy of Law and Legal Ethics at the Jagiellonian University and sponsored by the Polish Ministry of Science and Higher Education. Within the project our team has published many articles, monographs and edited works such as the Studies in the Philosophy of Law, vol. 4: Legal Philosophy and the Challenges of Biosciences(edited by J. Stelmach, M. Soniewicka and W. Załuski, Jagiellonian University Press, 2010). One monograph, entitled Evolutionary Foundations of Law was written by Dr. Wojciech Załuski and was published in both Polish and English in 2009. We have also prepared a joint monograph entitled Paradoxes of Legal Bioethics and which is forthcoming this year.
The present volume also has a monographic character and consists of two parts and an appendix. The first part, entitled Legal Implications of Medical Advances, consists of four chapters that address the ethical and legal issues of the integration of new genetic technologies into medicine.
When bioethical discussion touches on the notion of the person it usually takes the form of an argument which has a decisive character. Such an understanding often forms a simple syllogism: one should not kill a person; X is a person; therefore: one should not kill X with, in the place of X – according to the problem considered – terms such as nasciturus, ‘someone terminally ill who has requested euthanasia,’ ‘someone who's life functions are maintained by medical apparatus’ are employed.
On the other hand, one may also encounter such positions as that noted by Hugo Engelhardt:
Not all people are equal. (…) Not all people are persons. Not all people are conscious, understanding and able to praise or criticise something. A foetus, a newborn, the mentally handicapped, those in a deep coma – are examples of people who are nonpersons.
We should note that Engelhardt does not question the syllogistic scheme above. He rejects the validity of one of its premises i.e. that a nasciturus or someone who is mentally handicapped is a person. It is not the aim of this paper to establish if the conclusions of this syllogism are true or false. We can state, however, that they are not justified on the basis of the premises assumed. The reason is not that the premises are false but rather that it is unclear what they state.
In 1908, in Introduction to the Science of Law and Morality Leon Petrażycki noted:
The fact that till today no one has succeeded in defining law, even though a lot of effort was put into it and there had been developed innumerable, more or less fundamental and interesting attempts at describing the essence of law, has even led to doubts as to whether the question may be answered at all, or to the acceptance of definitions which are clearly unacceptable.
Since 1908, such convictions have been repeated on many occasions. For some (Petrażycki included) the reason for this is that jurisprudence has never been a proper science. They claim that the only way to give a satisfactory explanation of law is to develop a naturalistic conception thereof. In recent years, due to the astonishing advancements in biology (especially, neuroscience), the project of naturalizing law has become again a subject of heated debate.
The problem is very complex and thus, in this short essay, I will confine myself to some preliminary remarks. I will devote considerable attention to two cases studies: Petrażycki's own reductionist project and a recent proposal by Wojciech Załuski. I will try to evaluate them from two perspectives. First, I will look at how they answer the ontological question (‘what is law’), and second, I will consider their answers to the normativity question (‘how do legal norms become reasons for action’).
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