Trials of doctors and ethical codification A comparative reading of the 1931 Richtlinien and of the 1947 Nuremberg Code

Abstract

This article proposes to conduct a comparison of the ethical consequences of two trials of doctors in 1930 and 1946/47: the Lübeck trial and the Nuremberg trial. Thanks to this comparison, it is possible to open a discussion about the function of codification in the passage from ethics to ethos and vice versa. The comparison is based on two texts from the Richtlinien of 1931 and the Nuremberg code of 1947. They are put in parallel and compared on the one hand with regard to their performative characteristics, i.e. effective characteristics inscribed in the very letter of the text, according to Austin’s formula “when saying is doing”, and on the other hand, their content is compared. Despite similarities on many points, it is the difference in the crafting of the two texts which is most remarkable. On the one hand, the Richtlinien appear to be a tool for regulating research, arising from an instance of public health and directed to doctors primarily, while the Nuremberg code seems much more difficult to qualify. Finally, it seems that the Nuremberg code inscribes within the law an extremely simple thing: the possibility for the experimental subject to say no, the possibility for the person to refuse the experimentation.