Bart Klink

This edited volume covers new ground by bringing together perspectives from symbolic legislation theory on the one hand, and from biolaw and bioethics on the other hand. Symbolic legislation has a bad name. It usually refers to instances of legislation which are ineffective and that serve other political and social goals than the goals officially stated. Recently, a more positive notion of symbolic legislation has emerged in legislative theory. From this perspective, symbolic legislation is regarded as a positive alternative to the more traditional, top-down legislative approach. The legislature no longer merely issues commands backed up with severe sanctions, as in instrumental legislation. Instead, lawmakers provide open and aspirational norms that are meant to change behavior not by means of threat, but indirectly, through debate and social interaction. Since the 1990s, biomedical developments have revived discussions on symbolic legislation. One of the reasons is that biomedical legislation touches on deep-rooted, symbolic-cultural representations of the biological aspects of human life. Moreover, as it is often impossible to reach consensus on these controversial questions, legislators have sought alternative ways to develop legal frameworks. Consequently, communicative and interactive approaches to legislation are prominent within the governance of medical biotechnology. The symbolic dimensions of biolaw are often overlooked. Yet, it is clear that the symbolic is at the heart of many legal-political debates on bioethical questions. Since the rise of biomedical technologies, human body materials have acquired a scientific, medical and even commercial value. These new approaches, which radically question existing legal symbolizations of the human body, raise the question whether and how the law should continue to reflect symbolic values and meanings. Moreover, how can we decide what these symbolic values are, given the fact that we live in a pluralistic society?

In contemporary legislation theory, legislation is approached from roughly two different models: law as symbol vs. law as instrument. Each model offers its own specific perspective from which in concrete cases legislation can be described and evaluated. In the Law As Symbol model legislation is seen as an ongoing communicative and interactive process in which various actors in society—the legislator, officials and citizens—work together on an equal level to create and implement legislation. In the Law As Instrument model legislation is conceived, on the other hand, as a command that is issued by the legislature, from a position above or outside society, in order to achieve a specific policy goal. In this chapter I explore, building on these two models, how we can account for the bindingness of law. How to explain or justify the general expectation that legal norms are, or have to be, respected? As I argue, these models are not mutually exclusive but are co-dependent on each other. For law to function as a command, the legislature has to succeed in communicating its message to society. Conversely, to become a convincing symbol, the law cannot remain a matter of discussion forever; the process of communication and interaction has to stop at some point and the law has to be applied unilaterally and enforced in case of non-compliance. Moreover, I intend to demonstrate that both models have difficulties in explaining law’s authority. How can a command or communication in itself generate legal duties? What is missing in both models, in my view, is a reflexion on the role ideology plays within the law. Before one can give commands to citizens or enter into meaningful conversations with them, the existing order has to be accepted as a legitimate legal order. In other words, law has to presuppose its own authority but cannot produce it—only ideology can.

In Dutch legal theory, the Rechtsstaat has been described metaphorically in terms of a building by the authors Witteveen and Bovens. This metaphor is supposed to highlight three properties of the Rechtsstaat: 1. constantly, new elements are added to the building of the Rechtsstaat, which may collide with the older, already existing elements; 2. the building appears in different manifestations, depending on the country in which it has been build or the perspective one adopts; and 3. the building provides a framework for co-ordinated action among its inhabitants. Van Klink shows that the metaphor does not only reveal these, relatively trivial, properties, but – regardless of the authors’ intentions – it also conceals other,more important ones. Particularly, it disguises that the Rechtsstaat has no fixed and univocal meaning; that is acquires its, always temporal,meaning by means of authorative, unilateral decisions; that it consists of conflicting, essentially contested concepts, which involve choices that cannot be justified fully and can have drastic existential consequences; and, finally, that is used and abused to justify acts of power and violence by the state. Therefore, Van Klink concludes that the metaphor of the Rechtsstaat as a building should be banned from legal theory altogether, in order to give way to a critical understanding of the ideological use of this normative concept in power legitimating discourse

In the paper we will explore some of the major limits and possibilities of interdisciplinary research into law. In how far is the science of law open to insights from other disciplines, such as sociology, psychology, philosophy, economics and literature studies? We will approach this question by confronting two contrary positions: pragmatism (Dewey) that argues for the fundamental comparability and compatibility of theories on the one hand and positivism (Kelsen and Luhmann) that points to the limits thereof on the other. Following on this debate, we will present a dynamic model of interdisciplinarity in which different types of interdisciplinary legal research will be presented, moving from the monodisciplinary towards a fully integrated interdisciplinary perspective. Finally, the advantages and disadvantages of each type of interdisciplinary research into law will be discussed.

This article presents some critical comments concerning the conceptual, normative and institutional foundations of Teubner’s plea for a ‘common law constitution’. My comments question the desirability of the means chosen for attaining this objective as well as their efficacy. In particular, I have difficulties with the ambivalent role that is assigned to man, either as a person or as a human being; with the reduction of social problems to problems of communication; and, finally and most importantly, with the attempt to conceive of law and politics beyond established legal and political institutions, which in my view is doomed to fail. The conclusion offers some tentative suggestions for an alternative approach