Sachstand zur Manipulierbarkeit des menschlichen Embryos hinsichtlich seiner Spezieszugehörigkeit und Entwicklungsfähigkeit

This report presents the current state of research in the debate on embryo protection. On the basis of scientific findings on species membership and the capacity of human embryos to develop properly, the report examines the extent to which these empirical facts influence the debate on the legal status of the human embryo. At the end of the article, the authors present the options for the further discussion with regard to the German Embryo Protection Act.

Kritische Anmerkungen zu einem „normativ funktionalen Straftatbegriff“

This article critically reflects upon the concept of “criminal offence” currently being discussed in Germany. One of the opinions that is critically reviewed argues that the criminalisation of behaviour (Verhalten) has to be legitimated independently of the criminal sanction (Sanktionsnorm). However, the author of this article argues that the concept of what a criminal offence is cannot be developed without taking into account what the reasons for punishment are.

Against the Hybrid Interpretation of Kant’s Theory of Punishment

In Kants Werk Metaphysik der Sitten, Metaphysische Anfangsgründe der Rechtslehre scheint es so zu sein, dass er zum Strafrecht sowohl retributivistische als auch konsequentialistische Positionen bezieht. In den letzten Jahrzehnten, haben einige Forscher/innen dafür plädiert, dass Kants Theorie des Strafrechts daher ein Hybrid aus Konsequentialismus und Retributivismus sei. B. Sharon Byrds Auslegung ist die einflussreichste Version dieser Ansicht. Ich argumentiere demgegenüber dafür, dass die textlichen Beweise für die konsequentialistische Seite einer hybriden Auslegung nur schwach sind und dass Beweise für eine retributivistische Seite einer hybriden Auslegung nicht vorhanden sind. Es gibt sogar Textstellen, die dieser Auslegung widersprechen. Ich schließe daraus, dass die hybride Auslegung aufgegeben werden sollte.

Rupert Schreibers Deskriptionsthese

This paper deals with the ‚description-thesis‘ (R. Schreiber 1962) according to which normative or prescriptive legal statements are reducible to, or translatable into, descriptive propositions. The arguments Schreiber produced in support of his thesis are briefly presented, followed by a discussion of the thesis against the background of Hume’s law and G. E. Moore’s open-question argument. In order to broaden the perspective, some other philosophical views are examined; emphasis is placed on how the is-ought relation was conceived, in conflicting ways, by Hans Kelsen and Friedrich Müller respectively, as compared to the current state of discussion, and what are, according to Ernst Tugendhat and Christoph Möllers, the constituents of (social) norms. As a result, the paper suggests that the description-thesis can not be maintained in its entirety. A special version is presented which seems to respond to the criticism discussed while implying at least part of what Schreiber’s original version claimed.

Der manipulierbare Embryo: Konsequenzen für das Recht

Innovative techniques of developmental biology facilitate the artificial creation of embryo-like entities. This contribution analyses, first, whether certain artificially created embryo-like entities are ‘embryos’ within the meaning of existing statutory law definitions laid down in the Embryo Protection Act, the Stem Cell Act and the Patent Act. These definitions are non-uniform and their interpretation and application with regard to artificially created embryo-like entities is not always conclusive. Accordingly, the legal definitions of the term ‘embryo’ should be harmonised and, thereby, adapted to the state of developmental biology. Any such legislative efforts need to be in conformity with the constitution, primarily with the guarantee of human dignity (Article 1‍(1) of the Basic Law). However, said provision cannot provide guidance to the legislature because the constitutional status of both embryos and embryo-like entities in vitro is highly disputed. It is held that this irresolvable debate is due to a fundamental lack of a widely shared experience that such entities possess a supreme unique value. This article argues that in such a situation it is, in the first instance, for the legislature (i. e. parliament) to determine the legal status of embryos and embryo-like entities in vitro. This argument is based on a particular doctrinal approach according to which the individual right to respect of one’s human dignity arising from Article 1‍(1) BL depends on recognition of the relevant entity as being a ‘human’ or a member of ‘humankind’ respectively. Such recognition has, hitherto, not been accomplished with a view to embryos and embryo-like entities in vitro. Against this backdrop, for the time being, the legislature may determine the legal status of embryos and embryo-like entities in vitro, lay down rules regarding their creation and particular use, and, especially, define the legal term ‘embryo’, albeit within some outer constitutional limits. The article, finally, analyses several elements of, and submits a proposal for, a new legal definition of the term ‘embryo’.

Spezieszugehörigkeit und Entwicklungspotential – Was impliziert ihre biotechnische Manipulierbarkeit für das Recht des Embryonenschutzes?

In the German legislation on embryo protection, the scope of protection is defined by its membership to the human species and by the embryo’s inherent potential to develop into a born human being. Both criteria refer to well-known bioethical arguments: the argument from species membership and the potentiality argument. With recent progresses in biotechnology it has, however, become possible manipulate the development potential of human embryos and to blur the boundaries between species. Hence, we must ask, whether both criteria (and with them the arguments) can still hold their ground in bioethics and biomedical law. In my article, I argue, that the aforementioned biotechnological techniques do not require to abandon the arguments from species membership and potentiality. There is, however, a need to clarify what the criteria of species membership and inherent potentiality actually refer to in the relevant laws, i. e. the embryo protection law and the stem cell law.

Der manipulierbare Embryo: Philosophische Grundaspekte einer aktuellen Debatte

This article is dedicated to the question of normative aspects in which the relation between responsibly acting subjects and manipulable embryos has to be established. It advocates the thesis that “reflexive identity” between acting subject and treated embryonal “object” is the pivotal and starting point of the debate: the acting subject acts towards a form of objective human existence, which it has undergone by itself and therefore recognizes not only itself, but also poses the condition of possibility of its own current sovereignty in acts. Against this background the concept of “Personalism”, which is found in the German “ESchG” (Embryo Protection Act) and “StZG” (Stem Cell Act), can be understood. If there are new questions arising from complex, technically mediated manipulations of the embryo today, as its entire synthetic production has become possible, it leads to the question regarding the normative meaning of “Besonderung” (particularity/particularization) and the identification of species as living individuality as such. Consequently, it raises the question of the normative relevance of corporal self-objectivations of individuals, which never passes over to just material circumstances. This also applies when embryos are obtained from iPS cells where the biotic substrate, as well as its “administration” and “utilization”, is not regarded an anonymous, but biotic substrate that is embedded in individual biographies that are undetachable and never completely lost. “Biopolitics” that place human biotic substrate in the disposition of arbitrary interests already has to be rejected in the interest of maintaining a perspective of reflexive identity as well as in the horizon of interpersonality.