"This book analyses the features and functionality of the relationship between the law, individual or collective values and medical-scientific evidence when they have to be interpreted by judges, courts and para-jurisdictional bodies. The various degrees to which scientific data and moral values have been integrated into the legal discourse reveal the need for a systematic review of the options and solutions that judges have elaborated on. In turn, the book presents a systematic approach, based on a proposed pattern for classifying these various degrees, together with an in-depth analysis of the multi-layered role of jurisdictions and the means available to them for properly handling new legal demands arising in plural societies. The book outlines a model that makes it possible to focus on and address these issues in a sustainable manner, that is, to respond to individual requests and technological advances in the field of biolaw by consistently and effectively applying suitable legal instruments and jurisdictional interpretation"--Back cover

lgli/P:\springer_dnd140621\springer\10.1007%2F978-3-030-78475-1.pdf

nexusstc/Axiological Pluralism: Jurisdiction, Law-Making and Pluralisms/54de34c079f19e7fb1e24088711d3a31.pdf

lgrsnf/_3030784746.pdf

zlib/Society, Politics & Philosophy/Anthropology/Lucia Busatta, Carlo Casonato/Axiological Pluralism: Jurisdiction, Law-Making and Pluralisms_17518860.pdf

Busatta, Lucia; Casonato, Carlo

Lucia Busatta, Carlo Casonato

José Osvaldo De Sordi

Springer International Publishing AG

Springer Nature Switzerland AG

Ius Gentium: Comparative Perspectives on Law and Justice, 92, 1st edition, Cham, 2021

Ius gentium (Dordrecht, Netherlands), Cham, Switzerland, 2021

Springer Nature, Cham, 2021

Switzerland, Switzerland

1st ed, S.l, 2021

4, 20210902

producers:
Adobe PDF Library 10.0.1

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Contents 6
Introduction 8
1 Axiological Pluralism and Biolaw 8
2 The Role of the Courts: Lords of Law? 9
3 The Role of Other Institutions (Quasi-Jurisdictional or Consultative) and Other Tools 10
4 Case-Studies for a Sustainable Pluralism 11
5 A Last Disclaimer: Biolaw and the Pandemic 13
Part I: Adjudication and Regulation Facing Pluralisms: Models and Trends 14
BioLaw Facing Pluralisms: Three Simple Models for Complex Issues 15
1 Introduction 15
2 The Added Value of Models 16
3 The ``Preclusive ́ ́ Model 20
3.1 The Many Shades of Constitutional Adjudication Regarding Assisted Suicide 21
4 The Inactive Model: Basic Features 25
5 The Integrative Model 30
5.1 An Integrative Approach Lacking Effectiveness 31
5.2 If It Is Scientifically Possible, Then Do It! 32
5.3 A Scientific Evolution That Brings More Inclusion 34
5.4 Against a Falsely Integrative Model 34
6 Conclusions: In Search of Sustainable Pluralism 35
References 37
Some Patterns for ``Scientific Adjudication ́ ́: The Role of Courts in Reconciling Axiological Pluralism and Scientific Complexi... 39
1 ``Scientific Adjudication ́ ́: Courts as `Mediator ́ Between Scientific Complexity and Ethical Sensitiveness as a Coherent Expr... 39
2 ECtHR Case-Law: Axiological Prevalence vis à vis States ́ Margin of Appreciation 41
3 National Courts Assessing Political Choices: Constitutional Principles as the Golden Thread Running Through Scientific Adjud... 44
4 Science Integrates the Axiological Dimension: Tool for Managing Axiological Pluralism 46
4.1 Science as a Tool for Constitutional Interpretation: The Case of the ``Unborn Child ́ ́ and the Supreme Court of Ireland 47
4.2 Science as a Tool for Assessing Political Choices: From Self-Restraint to Scientific Reasonableness 48
4.2.1 Judicial Self-Restraint Reinforced by the Scientific Nature of Issues at Stake: France 48
4.2.2 Judicial Review Based on Scientific Reasonableness of the Law: Italy 49
4.2.3 `Science-Based ́ Judicial Review: Portugal (ARTs) 51
5 Science Is Absorbed by Axiological Dimension: Context of Expression for Axiological Pluralism 53
5.1 Legislature ́s Supremacy and Axiological Complexity: End of Life Issues (UK) 53
5.2 Legislature ́s Primacy and Axiological Assessment: Surrogacy in Portugal and Assisted Suicide in Canada 54
5.3 Legislature ́s Choices and Axiological Interpretation: Surrogacy Agreements in Argentina 56
6 Scientific Enhancement of Law as Prerequisite for a Sustainable Scientific Adjudication: The Essential Integration Between A... 57
References 58
Part II: Accommodating Pluralisms Beyond Courts: Institutions and Tools 61
Research Ethics Committees 62
1 Introduction 62
2 Bioethics and Research Ethics Committees in Biomedicine 63
3 International Legal Regulation of Research Ethics Committees 65
4 The Instrumentalisation of Research Ethics Committees 68
5 Research Ethics Committees from an Institutional Perspective: Unresolved Issues 71
6 Conclusions and Proposals 75
References 76
Consultative Boards at International Level 78
1 The Need for Bioethics Committees as Independent Advisory Bodies 78
2 Background 81
2.1 A Favourable International Context 81
2.2 Institutional Antecedents 83
2.2.1 The Bioethics Committee (DH-BIO) of the Council of Europe 84
2.2.2 The International Bioethics Committee (IBC) of UNESCO 85
2.2.3 The European Group on Ethics in Sciences and New Technologies 85
3 Features of International and Supranational Committees 86
3.1 Specialisation 87
3.2 Multidisciplinarity 88
3.3 Independence 89
3.4 Pluralism 90
3.5 Transparency 91
4 Conclusions 91
References 93
Reckoning with Growing Pluralism. Potentials and Limits of Conscientious Objection: Conscience Clauses in Abortion Laws in Eur... 94
1 Conscientious Objection: A Technique for the Protection of Pluralism 94
2 Protecting Conscience: Direct and Indirect Involvement in the Law ́s Application 96
3 Protecting the Law from Conscientious Objection 101
4 Conscientious Objection: A Necessary Technique in Pluralistic Societies 105
References 106
Professional Medical Ethics 108
1 Between Professional Ethics and Law: Some Preliminary Remarks 108
2 Codes of Medical Ethics As Sources of Law: Plurality of Actors and Variety of Models 109
2.1 Medical Professional Associations As Public-Interest Bodies 110
2.2 The Legal Value of Codes of Medical Ethics: A Comparative Overview 112
3 Axiological and Legal Pluralism in Biolaw: The Perspective of the CME 115
3.1 Medical Ethics and Law: Integration Patterns and Conflicting Rules 116
3.2 The Conscience Clause Between Professional Autonomy and Fundamental Rights 119
4 Deontological Liability and Disciplinary Procedure: Jurisdictional and Quasi-Jurisdictional Bodies 121
5 Summarising the (Possible) Role of Codes of Medical Ethics: The Case of Physician-Assisted Suicide 123
References 125
Part III: Case Studies 128
Axiological Pluralism: Conflict in the Hospital, Resolution in the Courts 129
1 Introduction 129
2 The Risks Presented by Axiological Pluralism: A Possible Conversation 132
2.1 What Kind of Risks? 132
2.2 Is There a Risk? 133
2.3 Some Proposals for Dealing with the Legitimacy Deficit 134
2.3.1 Deliberative Democracy 134
2.3.2 Politics as Usual and Conviction Politics 135
2.3.3 Special Procedures 136
2.3.4 Shared Responsibility 137
2.3.5 Embedding a Morality Clause 137
2.3.6 Leaving it to the Courts 139
3 Recent Medical Jurisprudence 139
3.1 Montgomery 139
3.2 James 141
3.3 Doogan 143
4 The Institutional Role and Responsibilities of the Courts 145
4.1 Taking Stock 148
5 Conclusion 149
References 151
Axiological Pluralism and Health Claims as a Challenge to the Democratic Principle. The Cases of Non-Validated Therapies and V... 153
1 Introduction: The Sustainability of Axiological Value Pluralism in Health 153
2 Individual Health Claims and Pressing Emotional Needs: The Stamina Case in Italy 154
3 Right-to-Try Laws in the U.S. and the Need to Ground the Right to Health in a Rational Basis 158
4 The Debate About Vaccination Mandates as a Test for Pluralism 164
4.1 The Rule-Plus-Exemption Model of the U.S.: How Broad Can Exemptions Be? 165
4.2 The Italian Case: The Chance for Spontaneous Adhesion and the Need for Legal Mandates 168
5 Axiological Pluralism and the Democracy of Science 173
References 174
Reliance on Scientific Claims in Social and Legal Contexts: An `HIV and AIDS ́ Case Study 176
1 Putting Science Out of Place 176
2 Mainstream Science, Alternative Narratives, and (Mis)Communication 179
3 Accepting Pluralism: Moving from Mystification to Argumentation 183
4 Reliance on Scientific Evidence in Tort Litigation and Criminal Trials. Can Judges Establish How to Distinguish `Science ́ fr... 184
5 The Use of Phylogenetic Analysis in Prosecutions for Sexual Transmission 187
6 Improving Scientific Communication and Public Understanding of Science (Concluding Remarks) 189
References 190
Reproductive Rights in Italy 195
1 Self-determination in Reproductive Rights: Contraception and Sterilisation 196
1.1 Contraception 196
1.2 Sterilisation 197
2 Abortion 199
3 The Debate on Abortion and Wrongful Life 201
4 The Law on Medically Assisted Reproduction: A Judicial Reshaping 203
5 Reproductive Rights and Conscientious Objection 207
References 209
End of Life Issues 212
1 Introduction 213
2 The Emergence of Legal Issues Concerning the End of Life 215
3 The European Standard of Minima, Between Silence and Integration 217
4 Diversity of National Options: Denial v. Integration 222
4.1 Belgium 222
4.2 England and Wales 223
4.3 France 224
4.4 Spain 225
4.5 Switzerland 226
4.6 The Netherlands 227
5 The Right to One ́s Own Death 228
6 The Right to One ́s Own Death As a Constitutional and a Public Authorities ́ Matter 230
7 And the Future 231
References 233
Patients ́ Rights at the End of Life in Chilean Juridical System. Legal and Jurisprudential Analysis from Biolaw ́s Perspective 236
1 Introduction 236
2 Biolaw and Axiological Pluralism 237
3 Analysis of the Law No. 20.584 Applied to the Case 244
3.1 Legislative Design Problems: A Protectionist Model 246
3.2 Problems of Legislative Technique: A Model of Protected Self-determination 248
3.3 Problems of Non-jurisdictional Institutional Pluralism 248
4 The Case 249
5 Jurisprudential Analysis from a Biolaw ́s Perspective 250
5.1 A Restricted Judicial Discretion 250
5.2 Judicial Proceedings Against a Protectionist Model of Autonomy 251
6 Conclusions 251
References 252

2021-10-09