Tempo, direito e evolução: a diferenciação do biotecnodireito no sistema jurídico e o desenvolvimento endógeno de elementos para a gestão do risco biotecnológico

Abstract

The advances in biotechnology provides undeniable challenges to the legal system that supported by a modern logic founded on certainties operates under a complexity not consistent with contemporary society. The construction of the form genetically-applied/genetically-inapplicable assumed by biotechnology, results in the communicative production of never identified biotechnological risks, going to observe society from the perspective of the possibility of disaster by reiteration of the biotechnology communication. At the same time, the semantics of fear produced by the perception of the possibility of future damage puts the biotechnological risk as an element of fundamental importance for constructions for future. The law now count with risk as legally noticeable communication, assigning his a proper sense and subsequently allowing recursion of the biotechnology juridical communication. This recursivity results in the formation of biotechlaw as a legal subsystem defined by their particular technicality by the assimilation of biotechnological risk. Established the biotechlaw as system-on-system-in-system, this partial sphere of legal communication shall assimilate the biotechnological risk from internal constructs specially defined for this purpose. Particularly are located initial strategies of temporalization of risk by the biotechlaw subsystem, which conform to the definition of legality/illegality of biotechnological risk, by the applicability of the precautionary principle and the principle of intergenerational equity and by assimilation of communication produced by bioethics. These four elements are guiding the biotechlaw, allowing the formation of new structures aimed at management of biotechnological risk and the temporal reconstruction of the legal system. Supported these four elements, the tort system becomes more complex; realizing the possibility of development of what was called heterorreflexive liability. Supported in a drastic change from their traditional structures, suggest a remodeling of the classical liability requirements, placing precaution as its basic structure against the biotechnological risk and, thus, allowing to modeling a damage of biotechnological risk and the formation of a collective causation. However, this construction meets the policontexturality that characterizes contemporary society, emerging the need for establishment of dialogic relations between conflicting legal systems as final strategy of biotechlaw system management of biotechnological risk, as well allowing the development of the law through a constant temporal symbiosis.