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Promises and perils of emerging technologies for human condition

Voices from four postcommunist Central and East European countries

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Edited By Peter Sýkora

Emerging technologies are defined as fast-growing radically novel technologies with an estimated prominent impact on human society in the future. The ambiguity and uncertainty of emerging technologies at the same time raise techno-optimistic expectations, as well as serious worries about possible unwanted and unpredicted negative consequences following their introduction into wider practice. And because of their radical novelty, emerging technologies also challenge various traditional philosophical and ethical concepts, established risk assessment methods, science and technology governance and policies, science to public communication and practices within and outside the medical domain. The aim of this volume is to present the view of ten authors from four postcommunist Central and East European countries (Czech Republic, Slovakia, Poland and Latvia) on emerging technologies and human enhancement. They analyse the topic from various perspectives: anthropological, ethical, philosophical, ontological, empirical, and legal. A variety of views will contribute to a development of the discourse on technology assessment in their countries, help to make the process of national policy and law formation more active and less “mimetic”, and open the national discourses to international discussion and critical analysis.

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Chap. 9. The surgeon’s failure to enhance and tort liability. Polish civil law perspective

Chapter 9

Extract

Andrzej Girdwoyń and Joanna Różyńska



Abstract: The use of cognitive enhancement technologies raises not only ethical, but also legal questions. Numerous scholars have expressed concerns that these technologies may pose a threat to basic human rights, especially the individual’s right to self-determination. In response to this worry, the concept of “cognitive liberty” (as a right to be and not to be subjected to enhancing procedures) has been introduced. Many commentators have wondered how cognitive enhancement interventions would change basic concepts and principles of criminal law and criminal responsibility. Yet, little attention has been given so far to the implications of cognitive enhancement technologies for the civil law domain. The aim of this paper is to fill this gap. First we remind the basic tenants of the continental law doctrine on civil liability through the perceptive of the German, French, and Polish legal systems. Second, we identify main challenges the use of cognitive enhancement technologies poses for civil liability. We analyse three elements justifying a claim for damages, namely unlawful conduct of an agent, damage, and causation. We focus on the first and the third one. Regarding the first element, we discuss the problem of agency of a cognitively enhanced individual, especially the influence of his or her enhanced cognition on the standard of due care and – what follows – conception of negligence. As to the third element, we analyse the causal relationship between the fact of an enhancement and the damages caused by the enhanced...

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