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Legal Speculation Of Human Gene Technology

Posted on:2016-04-06Degree:DoctorType:Dissertation
Country:ChinaCandidate:W MengFull Text:PDF
GTID:1226330461984344Subject:Legal theory
Abstract/Summary:PDF Full Text Request
With the development of human history, the pursuit and innovation of science and technology from human beings have developed. After the technological change from the artifacts to the machines and then from the machines to the instruments, the assistive functions of the science and technology to human beings have also experienced the change from microscopic to macroscopic. When doctors used the scalpel to the human body, the human were no longer just the subject of the science and technology, and have changed to the object of the science and technology gradually. This change made the knowledge of humanity itself more and more detailed, and ultimately produced the human gene technology. Obviously, the birth of the human gene technology meant the existence and life of human beings have entered a new phase. At this stage, humans are no longer just willing to be the seekers of the origin of life, but also its creator. Human beings intend to employ the assistive functions of the science and technology to design life with individual will and establish a dominant position of life when facing the nature, the environment, the disease, the evolution and other issues. The article includes six chapters.The first chapter discusses that human playing God in life’s evolution is dangerous not only from the point of religion but also from the understanding and pursuit of nature with the notions of ethical tradition. Dating back from the recorded human history, the immutable human relation model is that the natural combination of one natural family of natural persons from both sexes and thus several natural families constitute a society and then compose the country. Human gene technology has made challenges to this stable pattern of human relations. On the one hand the human gene technology tries to change the natural reproduction of human being and wants to use the research of the functions and replication of human genes to explore the possibility of the artificial reproduction. On the other hand the human gene technology tries to amend the natural constitution of human genes and wants to use the external intervention or internal correction to change the function of natural human genes and explores the possibility of enhancing the human genome. The research of human gene technology impacts the traditional views of human life, the nature, the family values, and the views of emotion and so on, thus giving birth to the ethical and legal issues.The second chapter discusses that from the philosophical perspective, the ethical and legal issues which have been caused from the development of human gene technology are not complete now, and it is another race between determinism and free will. When the quantum mechanics occupied an important position in the field of physics, the question whether God plays dice caused controversy among many scholars including Albert Einstein. Quantum mechanics make the view of necessity from determinism no longer occupy a dominance position, while making the view of contingency supported by scientific data. In ancient Greece, the problem between necessity and contingency had received attention, and later developed to be the contradiction and integration between determinism and free will. The view of determinism is from the perspective of natural human attribute and understands the human nature from the development of natural law. This mode of understanding is in line with the existence of human in nature, but it is easy to bring fatalism. However, free will stands on the perspective of human particularity, trying to prove that human has the ability to be responsible for the personal behavior and will and human has the value and dignity of existence beyond other living things. Through the demonstration of the human free will, the scholars want to certify the possibility for the moral existence of human, and lay the foundation for the protection and development of human dignity. From the essence of philosophy, the legal speculation of human gene technology is the debate and blend of determinism and free will. On the one hand the legal speculation of human gene technology should pay attention to and recognize the value of determinism, while respect the scientific value and freedom of scientific research on human genes as objective reality. On the other hand the legal speculation of human gene technology must recognize that the single view of determinism can’t resolve the ethical and legal issues caused by the human gene technology, so that the introduction of the view of free will into the legal speculation of human gene technology is not only necessary but also inevitable. Only human respect the existence of free will, therefore the value of human as the subject who gets the subjective initiative should be respected.The third chapter discusses that from the perspective of the valuable basis, the controversy of current legal speculation of human gene technology is the rethinking about the legal system guided by the options of liberalism, and also the exploration to find the possibility of pursuit of strengthening the interest for community on the basis of the insistence in personal values. At the same time, it is the confrontation and integration between liberalism and communitarianism in the legislation of human gene technology. On the one hand the core values pursued by liberalism have a clear manifestation in the legislation of human gene technology. For example, the principles about informed consent, voluntary, non-discrimination and no injury in the current legislation of human gene technology are the echoes of the core values of liberalism. On the other hand it is not sufficient to constitute the legislation of human gene technology only relying on the core values of liberalism, because with the development of this technology, it gives a challenge to the basis and logical system of liberalism theory, especially the personal values which, emphasized by liberalism, is not conducive to establish the concept of the common heritage of mankind in the legislation of human gene technology. In this case, the key point of communitarianism has been cited and the important role of the common good and the government has been emphasized, which would be good to maintain the practicality and feasibility of the legislation of human gene technology.The forth chapter discusses that whether from the philosophical level or the theoretical level to analyze the legislation of human gene technology, we need to have a wide range of theory in order to ensure the fairness of law. And the best choice that combining the determinism and free will, and liberalism and communitarianism in legislation of human gene technology is human dignity. On the one hand human dignity in the modern sense originated from Kant, who made human from the two levels about natural world and rational world went into the level of practical reason, in order to establish the necessity of existence of eternal dignity in human nature and human dignity is the core to maintain the human values. Meanwhile through the demonstration of free will, Kant established the moral position of human, and then he explored the value of human dignity by the concept of absolute command. This reasoning is the product of combination of determinism and free will, not only respecting the laws of nature about human, but also emphasizing the moral attribute about human as the subject of free will, and unifying two properties about human beings in human dignity. On the other hand, as one of the representative of liberalism, Kant supported the values of individual freedom, equality, democracy and the rule of law must be contained in the human dignity and as the core of the development of liberalism has never been abated. Protecting personal values, respecting individual choice and keeping the center position of human beings in the world are the core of liberalism and they are also the core of human dignity. At the same time, the starting point of communitarianism is also to protect the human interests, to protect the right of pursuing happiness by human, to protect the subjectivity of human and maintain the stability and development of the human-centered world system, which is also the pursuit of human dignity. Therefore, the moral attribute of human sought by human dignity is consistent with the setting of common good by communitarianism. And the liberal value of human dignity includes the consideration of the overall interests of human in human social attributes, as well as the notion of human dignity adhering to the human subjectivity has affected and promoted to the rethinking of the public interests that are advocated by communitarianism. The human dignity is the ultimate goal of the pursuit of liberalism and communitarianism in the field of human gene technology. Precisely because it is the combination of determinism and free will, and the combination of liberalism and communitarianism human dignity becomes the regulation purpose of the human gene technology. Though there are many disputes about the concept of human dignity, which include the variety sources of human dignity and the vague meaning of human dignity, it is no doubt to insist on human dignity in legislation of human gene technology, because this insistence is not only to respect the value of individuals, but also to protect the stability of human group.The fifth chapter discusses that the practice of ethical control and legal speculation of human gene technology. This chapter includes three parts. The first part is the stage of medical ethics. The second part is the stage of technology. And the third part is the stage of value balance. In current legal documents, the specific principles of human gene technology are derived from the recognition and protection of human dignity. These recognitions and protections fully reflect the value trade-offs by law in the issues of human gene technology. On the one hand the law adheres to the human subjectivity, because it is the requirement of the trend for the world civilization and it is the basis of the system of the modern world’s politics, economics and culture. Shaking the human subjectivity is not only to hurt the value of human beings, but also to bring the collapse of the entire social system. On the other hand the law ensures the stability of the traditional value system which covers the aspects of freedom, equality, and the rule of law and so on. When we are faced with the human gene technology, only remained the stability of these traditional value system could regulate the development and function of human gene technology in the scope of reason, which was useful to achieve the goal for the science and technology used by human.The sixth chapter discusses that it is profound of thinking about the future of legislation of human gene technology caused by these value tradeoffs. Firstly, we must recognize the irreversibility and limitation of the development of technology. The trend for development of technology is forward, which is never retreated by any reason and could only be regulated on the direction and progress of development. Meanwhile the development of technology is not infinite because of the limitations for human reason; therefore, its development must be limited by the objective conditions and subjective abilities. So we should not demonize the technology or deify the technology. We need to prepare to popularize the science and technology with the common vision and understanding, and uphold a tolerant attitude. Secondly, with the rapid developing progress of human gene technology in China, we should learn the setting of regulations for review and oversight in West, which are increasing comprehension. And we must clear the scope and direction of development of human gene technology by law in order to guard the bottom line of traditional ethics in the human gene technology. It requires the cautious attitude and meticulous spirit in the legislation of human gene technology. Finally, under the guidance of human dignity, taking into account the importance of the community, we must respect the dignity and interests of community in the legislation of human gene technology, and allow the existence of cultural differences. At the same time, we should try to find the possibility of civilization convergence between the recognition of cultural differences and the upholding of the principle of balance. Those development trends of legislation of human gene technology should be taken seriously and improved greatly in the future.
Keywords/Search Tags:Human Gene Technology, Free Will, Liberalism, Human Dignity
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