Confronting the Possible Eugenics of the Past Through Modern Pressures for Compensation

Abstract

AbstractCompensation is a primary legal mechanism to provide recompense for harm. It is a feature of both common (Anglo-Celtic) law and of civil (European) law systems. In both systems it deals with harms that occur across the world. It has featured in particular in claims for product liability, vehicle accident and workplace accident related harm. This form of claim is common to both the common law and the civil law system, although each system of law has developed distinctive features. While there are differences between the common law and the civil law jurisdictions in this context, there have been distinctive, new, and common, features to emerge from the concept of compensation over the past decade. Chief among these is the search for a unifying principle of compensation, one that can encompass the most recent pressure upon this area of law: compensation that reflects reparation for wrongs now the subject of broad human rights and humanitarian concern. Such wrongs include criminal actions by the state, and breaches of duty of care by state bodies leading to abuse and neglect of children. This paper will canvass some recent cross-jurisdictional cases with a view to establishing commonalities in the quest for a global shift from compensation to reparation. It looks in particular at compensation in the context of earlier governmental policies that have since been considered to contain or imply notions of eugenics. In keeping with two earlier papers published in this journal, the paper notes that while this is a matter of international concern, there can be a constructive comparative focus in examining both Australia and Sweden. The primary concern of the paper is to raise issues that concern the future of genetic research, placing that future in a reflective past context.