Multilevel law and soft law subsidiary function : research biobanks between binding, suasion and justiciability

Abstract

The biological material paradigmatically expresses the fundamental dichotomy between the body that we are and the body that we have, marking a line of continuity, often conflicting, from the general principle of the (un)availability over once own body (Article 5 of the Civil Code) to the gradual and increasing availability: from the physical and mental integrity to personal health and personal identity. In a context in which the limits of the «human» have become increasingly mobile and where the idea of the body as an entity dominated only by the person concerned loses its boundaries defined, generally derived from the ownership rules, the problem of biobanks highlights to the mode of acquisition, use and conservation of biological material. The layering and overlapping of sources on the phenomenon makes it difficult to reconstruct the theoretical and regulation of biological material, and also facilitates the production rules at different levels and an additional function of soft law rules, showing a deep crisis of sources and uncertain legal protection, if not absent.