Symbolic Legislation Theory and Developments in Biolaw PDF
Preview Symbolic Legislation Theory and Developments in Biolaw
Legisprudence Library 4 Bart van Klink Britta van Beers Lonneke Poort Editors Symbolic Legislation Theory and Developments in Biolaw Legisprudence Library Studies on the Theory and Practice of Legislation Volume 4 Series Editors Luc J. Wintgens, University of Brussels and University of Leuven, Belgium A. Daniel Oliver-Lalana, University of La Rioja, Spain Advisory Board Aulis Aarnio, University of Tampere, Finland Robert Alexy, Christian-Albrechts-Universität zu Kiel, Germany Manuel Atienza, Universidad de Alicante, Spain Tom Campbell, Charles Sturt University, Australia Paul J. Quirk, University of British Columbia, Canada Jan-R. Sieckmann, Universität Erlangen-Nürnberg, Germany Michel Troper, Université Paris Ouest-Nanterre (Paris X), France Jeremy Waldron, New York University, USA The objective of the Legisprudence Library is to publish excellent research on legislation and related areas (such as regulation and policy-making) from the standpoint of legal theory. This series’ title points to an emerging, comprehensive conception of lawmaking which focuses on the justifi cation of laws and the overarching principles which should guide legislation and norm-giving altogether, with the rationality, the reasonableness and the quality of legislation being its major concerns. Taking on legal theory as its pivotal perspective, the series attempts to fi ll a signifi cant gap in the fi eld of legislative studies, where political science and s ociological approaches remain dominant through date. Inasmuch as it fosters legal- theoretical research in lawmaking, it also contributes to widen the scope of standard jurisprudence, which has been up to recent times overwhelmingly centred on the judicial application and the interpretation of law, thereby underestimating the central role of lawmakers within the legal system. Contributions preferably address topics connected to legislation theory, including (but not limited to) legislative rationality, legislative technique, legistics, legislative effectiveness and social compliance of laws, legislative effi ciency and lawmaking economics, evaluation, legislative and regulative impact assessment, regulation management, legislative implementation, public access to legislation, democratic legitimacy of legislation, codifi cation, legislative reasoning and argumentation, science and expertise within lawmaking, legislative language, symbolic legislation, legal policy analysis, lawmaking and adjudication, or judicial review of legislation and legislative process. Comparative and system transcending approaches are encouraged. Purely dogmatic descriptions of positive law or legislative proceedings are not taken into consideration though connections with legislative and legal practice are welcomed. The series welcomes monographs and edited volumes. More information about this series at h ttp://www.springer.com/series/11058 Bart van Klink (cid:129) Britta van Beers Lonneke Poort Editors Symbolic Legislation Theory and Developments in Biolaw Editors Bart van Klink Britta van Beers Department of Legal Theory Department of Legal Theory and Legal History and Legal History Vrije Universiteit Amsterdam Vrije Universiteit Amsterdam Amsterdam , the Netherlands Amsterdam , the Netherlands Lonneke Poort Department of Sociology, Theory and Methodology Erasmus University Rotterdam Erasmus School of Law Rotterdam , the Netherlands ISSN 2213-2813 ISSN 2213-2856 (electronic) Legisprudence Library ISBN 978-3-319-33363-2 ISBN 978-3-319-33365-6 (eBook) DOI 10.1007/978-3-319-33365-6 Library of Congress Control Number: 2016949409 © Springer International Publishing Switzerland 2016 T his work is subject to copyright. All rights are reserved by the Publisher, whether the whole or part of the material is concerned, specifi cally the rights of translation, reprinting, reuse of illustrations, recitation, broadcasting, reproduction on microfi lms or in any other physical way, and transmission or information storage and retrieval, electronic adaptation, computer software, or by similar or dissimilar methodology now known or hereafter developed. T he use of general descriptive names, registered names, trademarks, service marks, etc. in this publication does not imply, even in the absence of a specifi c statement, that such names are exempt from the relevant protective laws and regulations and therefore free for general use. T he publisher, the authors and the editors are safe to assume that the advice and information in this book are believed to be true and accurate at the date of publication. Neither the publisher nor the authors or the editors give a warranty, express or implied, with respect to the material contained herein or for any errors or omissions that may have been made. Printed on acid-free paper This Springer imprint is published by Springer Nature The registered company is Springer International Publishing AG Switzerland Preface: New Challenges In 2014, we founded the research group ‘Biolaw and Symbolic Interaction’ (BioSI) as part of the general research program ‘Boundaries of Law’ at Vrije Universiteit Amsterdam. Its underlying purpose was to bring together scholars from a variety of disciplines with a shared interest in both the regulation of bio-ethical matters and legislation theory from, in particular, a symbolic perspective. The fi rst project we launched was the present book volume. Earlier, Luc Wintgens contacted one of us, Bart, to ask him whether he would be willing to make a book on symbolic legisla- tion for the renowned Springer series L egisprudence Library . In 1998, Bart pub- lished his PhD thesis on this topic, De wet als symbool ( Law as a Symbol ) (Van Klink 1998). After that, he participated on several occasions in discussions on the communicative approach which he had developed together with his supervisor Willem Witteveen (see, for instance, Zeegers et al. 2005). Although he appreciated Luc’s invitation very much, Bart did not want to repeat himself and previous discus- sions. He was looking for new theoretical challenges. Therefore, he invited Britta and Lonneke to join the book project. In 2009, Britta published her PhD thesis on the regulation of bio-ethical issues, P ersoon en lichaam in het recht ( Person and Body in the Law ) in which she discusses, among other things, the symbolic dimen- sions of biolaw, building on the notion of human dignity (Van Beers 2009). Four years later, in her PhD thesis Consensus and Controversies in Animal Biotechnology , Lonneke developed further an i nteractive legislative approach – which is closely connected to (though not identical with) the communicative approach as advocated by Witteveen and Van Klink – and applied it in a comparative study to the subject of animal biotechnology regulation (Poort 2013). So the idea was to combine our mutual interests and expertise in the fi elds of symbolic legislation theory and bio- regulation . I n order to promote a truly multidisciplinary exchange of ideas from which both fi elds could profi t, we invited scholars within the international community whom we expected to be interested in this topic to participate in this project from a wide array of disciplines: law, sociology of law, legal and political philosophy, and ethics. We were happy that they all responded very positively to our request. Most of their papers (in early draft versions) we discussed at the conference ‘Symbolic Dimensions v vi Preface: New Challenges of Biolaw’ on 23 and 24 October 2014 in Amsterdam were supported by the Royal Netherlands Academy of Arts and Sciences (KNAW). We thank the participants to the conference for presenting and discussing their viewpoints and sharing their thoughts on the other participants’ papers and the general project. Moreover, we would very much like to thank all authors for their thought-provoking contributions to this volume. We also thank Esther Oldekamp for helping us to organize the con- ference and to analyze the notion of the symbolic and symbolic legislation in the various papers (which is by no means an easy task!) and Siebe Bakker for his assis- tance with the preparation of the manuscript. We are very grateful for the possibility to publish our volume in the L egisprudence Library series, given by the series edi- tors Luc J. Wintgens and A. Daniel Oliver-Lalana. Two anonymous reviewers who commented on the manuscript helped us especially to strengthen the overall coher- ence of the volume and to clarify its central notions. Finally, we would like to thank the publisher for making this book project possible, in particular Neil Oliver and Diana Nijenhuijzen, also for the smooth cooperation and communication. U nfortunately, we have to end our preface with a sad note. During the production of this volume, Willem Witteveen, one of the main sources of inspiration for this book, died at the MH17 crash on 17 July 2014. We regret it very much that he is no longer with us and cannot discuss the outcomes of the book with us. However, as this book testifi es, his ideas live on and continue to inspire the scientifi c community. Amsterdam , the Netherlands Bart van Klink February 2016 Britta van Beers Lonneke Poort References P oort, Lonneke. 2013. C onsensus and controversies in animal biotechnology. An interactive legis- lative approach to animal biotechnology in Denmark , S witzerland and the Netherlands . The Hague: Eleven. Van Beers, Britta. 2009. P ersoon en lichaam in het recht. Menselijke waardigheid en zelfbeschik- king in het tijdperk van de medische biotechnologie (PhD thesis, Vrije Universiteit Amsterdam, the Netherlands). The Hague: Boom juridische uitgevers. V an Klink, Bart. 1998. D e wet als symbool. Over wetttelijke communicatie en de Wet gelijke behandeling van mannen en vrouwen bij de arbeid (PhD thesis, Tilburg, the Netherlands). Deventer: W.E.J. Tjeenk Willink. Zeegers, Nicolle, Willem Witteveen, and Bart van Klink (eds.). 2005. Social and symbolic effects of legislation under the rule of law . Lewiston: The Edwin Mellen Press. Contents 1 Introduction: Symbolic Dimensions of Biolaw ..................................... 1 Lonneke Poort , Britta van Beers , and Bart van Klink Part I Symbolic Legislation: The Symbolic Quality of Law 2 Symbolic Legislation: An Essentially Political Concept ...................... 19 Bart van Klink 3 The Emerging Interactionist Paradigm and the Ideals of Democracy and Rule of Law ..................................... 37 Wibren van der Burg 4 How Law Matters: Sociological Reflections on the Symbolic Dimension of Legislation ............................................ 55 Rob Schwitters 5 The Tension Between the Functions of Law: Ending Conflict Versus Dynamics ......................................................... 71 Lonneke Poort 6 Symbolic Legislation and Authority ...................................................... 87 Oliver W. Lembcke 7 On Legal Symbolism in Symbolic Legislation: A Systems Theoretical Perspective ........................................................ 105 Jiří Přibáň Part II Symbolic Approaches to Biolaw: Biolaw as a Symbolic Order 8 The Law and the Symbolic Value of the Body ...................................... 125 Jonathan Herring vii viii Contents 9 Revisionist Versus Broad Bioethics and Biolaw ................................... 143 Herman De Dijn 10 Bioeconomy, Moral Friction and Symbolic Law .................................. 161 Klaus Hoeyer 11 From Winged Lions to Frozen Embryos, Neomorts and Human-Animal Cybrids: The Functions of Law in the Symbolic Mediation of Biomedical Hybrids ................. 177 Britta van Beers 12 The Symbolic Meaning of Legal Subjectivity ....................................... 201 Dorien Pessers Part III Legislative Strategies: Regulating Biomedical Developments from a Symbolic Perspective 13 The Natural, the Informational, the Claimable? Human Body Material in US and European Patent Law.................... 215 Sigrid Sterckx and Julian Cockbain 14 Material Uncertainty: Nanomaterials, Regulation and Symbolic Legislation ....................................................................... 237 Robert G. Lee and Elen Stokes 15 The Democratic Legitimacy of Interactive Legislation of the European Union Concerning Human Embryo Research ......... 253 Nicolle Zeegers 16 Changing Expectations of Experts: The Symbolic Role of Ethics Committees ..................................................................... 269 Lonneke Poort and Bernice Bovenkerk 17 Law as a Symbolic Order: Some Concluding Remarks ...................... 289 Britta van Beers , Bart van Klink , and Lonneke Poort Index ................................................................................................................. 299 Contributors Bernice Bovenkerk is an Assistant Professor at the Philosophy Group at Wageningen University, the Netherlands. Her main publication in the fi eld is The Biotechnology Debate. Democracy in the Face of Intractable Disagreement (Springer 2012). Julian Cockbain i s a Consultant European Patent Attorney based in Gent, Belgium, and Oxford, United Kingdom. He has written numerous articles on pat- ent-related matters, and the book E xclusions from Patentability : H ow Far Has the European Patent Offi ce Eroded Boundaries ? (Cambridge University Press, 2012, co-authored with Sigrid Sterckx). Julian is also a frequently invited lecturer on pat- ent law and innovation policies. Herman De Dijn i s an Emeritus Professor in Modern Philosophy at the Institute of Philosophy, Catholic University of Leuven (Louvain), Belgium. He is a member of the Royal Academy of Belgium for Science and the Arts. He has published several books, among which S pinoza : The Way to Wisdom (Purdue University Press 1996) and M odernité et tradition (Peeters/Vrin 2004) and has written many essays (in Dutch) on Spinoza, contemporary culture, ethics, and religion. Jonathan Herring is a Professor of Law at Exeter College, University of Oxford, United Kingdom. He is the author of fi fty books including Caring and the Law (Hart 2013); Relational Autonomy and Family Law (Springer 2014); O lder People in Law and Society (OUP 2009), and E uropean Human Rights and Family Law (with Shazia Choudhry) (Hart 2010). He has written popular textbooks on medical law and ethics, family law, criminal law, and legal ethics. He is currently working on a book on vulnerability in the law and (with Michelle Madden Dempsey) a book on when sex is justifi ed. Klaus Hoeyer i s a Professor of Medical Science and Technology Studies at the University of Copenhagen, Centre for Medical Science and Technology Studies, Denmark. His background is in social anthropology and his research interests ix
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