Marc De Leeuw

Biotechnology is not new and can be tracked back to the rudimentary tools needed to control nature. Nonetheless, developments in the second half of the twentieth century qualitatively changed biotechnology’s impact on law. From the discovery of DNA’s structure in 1953, genetics increasingly plays a decisive role in society. Once deployed in courts and law, it continues to alter the domain of evidence, impacting nearly every legal field from criminal law to immigration law. Uses of genomics in the design and production of food and medicine also affect the domain of regulation—raising questions of ownership, control, and sovereignty in a globalizing world. By explaining (1) law’s capacity to subsume biotechnological changes in existing doctrines, paradigms, and processes and (2) biotechnology’s open and undetermined challenge to existing legal forms, this chapter describes biotechnology’s implications within the domains of evidence and regulation, providing the setting for Part II of the book.

In this chapter we historicize key debates around law and nature and engage with legal theory and the scholarship emerging from the history of natural law theory, evolutionary jurisprudence, sociology of law, philosophy of law, feminist jurisprudence, and legal pluralism. Transformations in thinking around law, nature, and biology were interrupted by the events of World War II. The eugenic sociobiology that informed the Holocaust and the legal positivist formalization of any law independent from its content led to a double crisis: namely the law’s lack of inherent morality and the use of science for physical extermination. The return of classical natural law in the form of a universal human rights regime declared human equality absolute. It established a new foundational moral framework for law that resulted in a less visible entanglement of law and biology in subsequent decades.

As this era ushers in a hyper-individualized technological paradigm promising targeted and precise information for law and medicine, the science underpinning these new techniques is, ironically, based on knowledge of populations. This chapter analyzes the shifting biolegalities of populations and communities by exploring, the collectivization of biological suspects in forensic and immigration practice, the making of biological populations for health justice, and the biological consolidation of identity and rights as forms of citizenship and nation building. First, we discuss the biolegal intervention by which forensic science produces “suspect populations.” Second, we examine the emergence of precision and race-based medicine, which constructs new communities based on biological markers. Third, we take up the way emerging postgenomic knowledge further complicates identity, contributing to new forms of biological citizenship. In all these cases, biolegal constructions help determine one’s belonging and reconfigure one’s relation toward rights, civic identity, community, and the nation-state.

The question of whether a bioscientific product remains a product of nature, or whether it should be newly defined as a human invention, is a central problem in intellectual property cases. Through the prism of genes this chapter explores law’s property relation to nature. It engages the anthropological problem of exchange from the perspective of biolegality. We examine how debates around the patenting of human genes become more and more complex with the promises of synthetic biology and living modified organisms, and, finally, with the emergence of genetic sequencing and the proliferation of sequence data. Throughout we ask, is law simply accommodating these developments and regulating new technologies based on social values, policies, and ethical principles? Or is biological research and inventiveness redefining biology and reconfiguring how law understands nature?

This chapter focuses on reproductive technologies and demonstrates how they alter the social meaning of biological relations and legal parenthood. The conventional legal arrangement relying on gestational maternity, on the one hand, and social paternity, on the other, is being reorganized by in vitro conceptions, mitochondrial replacement techniques, cryopreservation of gametes, gestational surrogacy, and embryo adoptions. This new potential for engineered reproduction fractionalizes parenthood, making possible various, and new, forms of biological and social parenthood: genetic, gestational, mitochondrial, intentional, adoptive, etc. Nonetheless, many contemporary cases reveal the extent to which legal systems struggle with the normative implications of these new arrangements. Here we investigate the mutating constructions of kinship, maternity, and paternity in and outside of courts as they go through the motions of scientific developments and global processes.

Neuroscience has become the new catchword. Just as DNA revolutionized thinking around human identity, so too does the study of our brains expect radical new insights into why humans act the way they do. In this chapter, we examine the changing biolegalities of the self and legal personhood through (1) the neurofication in law and society, (2) the making of neuro-legal categories, (3) the posthuman question of enhancement, and (4) the move from brainhood to neuro-rights. As we debunk the popular assumption that neuroscience radically intrudes in legal practice, we maintain that the appeal of neuro-based science for law reveals a philosophical fixation on the boundaries of personhood and responsibility. Central to how we establish legal culpability, causation, or mitigating circumstances, responsibility is being methodically retooled into a neuro-realistic account of agency that refutes free will. A biolegal approach can offer a critical perspective on the promises of neurolaw.

This book provides a comprehensive analysis of the empirical and theoretical problems posed by the encounter between law and biology in the twenty-first century. How does biotechnology and new bioscientific knowledge affect our legal institutions, our sense of justice, and our ways of relating to one another? To answer these questions, authors Marc de Leeuw and Sonja van Wichelen examine the complex and often contested ways in which biotechnology and biological knowledge are reworked by, with, and against legal knowledge. As this book shows, recent developments in the life sciences—including molecular biology, immunology, and the neurosciences—and their applications in forensics, medicine, and agriculture test longstanding legal forms, such as property, personhood, parenthood, and (collective) identity, ultimately constituting the current field of “biolegality.” The authors argue that these biolegal contestations represent philosophical and anthropological challenges to existing understandings of exchange, self, kinship, and community. By addressing how biology and law inform new ways of relating and knowing, the book proposes a programmatic intervention, asserting the pivotal role the study of biolegality plays in advancing social and political theory.

Reading Ricoeur through Law, edited by Marc de Leeuw, George H. Taylor, and Eileen Brennan, is the first collection of essays solely focused on Ricoeur’s thinking about law, bringing together both established and emerging scholars to offer a systematic and critical examination of Ricoeur’s legal thinking. The chapters not only explore the specific contribution Ricoeur makes to the field of jurisprudence but also examine how Ricoeur’s work on law fits, complements, or changes his overall anthropology, phenomenology, and hermeneutics. The book provides a complex insight into how law, ethics, and politics intertwine both from within law as normative rule setting, as well as through the wider social-political and historical context in which law and legal institutions affect our inter-subjective and communal life as lived “with and for others in just institutions.” The collection also makes available in English “The Just between the Legal and the Good,” a key text in Ricoeur’s reflections about law and justice. The core topics of this collection are rights, justice, responsibility, judging, interpretation, argumentation, punishment, and authority, but contributors also offer original insights in how Ricoeur’s philosophical reconceptualization of symbolism, action, ideology, narrative, selfhood, testimony, history, trauma, reconciliation, justice, and forgiveness can be made productive for our understanding of law and legal institutions.

Reading Ricoeur through Law, edited by Marc de Leeuw, George H. Taylor, and Eileen Brennan, is the first collection of essays solely focused on Ricoeur’s thinking about law, bringing together both established and emerging scholars to offer a systematic and critical examination of Ricoeur’s legal thinking. The chapters not only explore the specific contribution Ricoeur makes to the field of jurisprudence but also examine how Ricoeur’s work on law fits, complements, or changes his overall anthropology, phenomenology, and hermeneutics. The book provides a complex insight into how law, ethics, and politics intertwine both from within law as normative rule setting, as well as through the wider social-political and historical context in which law and legal institutions affect our inter-subjective and communal life as lived “with and for others in just institutions.” The collection also makes available in English “The Just between the Legal and the Good,” a key text in Ricoeur’s reflections about law and justice. The core topics of this collection are rights, justice, responsibility, judging, interpretation, argumentation, punishment, and authority, but contributors also offer original insights in how Ricoeur’s philosophical reconceptualization of symbolism, action, ideology, narrative, selfhood, testimony, history, trauma, reconciliation, justice, and forgiveness can be made productive for our understanding of law and legal institutions.

The design of collaborative robotics, such as driver-assisted operations, engineer a potential automation of decision-making predicated on unobtrusive data gathering of human users. This form of ‘somatic surveillance’ increasingly relies on behavioural biometrics and sensory algorithms to verify the physiology of bodies in cabin interiors. Such processes secure cyber-physical space, but also register user capabilities for control that yield data as insured risk. In this technical re-formation of human–machine interactions for control and communication ‘a dissonance of attribution’ :7684, 2019. https://doi.org/10.1073/pnas.1805770115) is created between perceptions of phenomena, materials and decision-making. This reconfigures relations not only between humans and machines, objects and subjects, but possibly disrupts attributive functions in the social system of Law. What it requires is shifting a legal accountability for action from a sovereignty of the human to a new materialist account based on a ‘cognitive assemblage’ between physiological data, computation and algorithmic sensing. This paper investigates the function of law as a guidance system to acknowledge this account of sensory and algorithmic computation as autonomous ‘sensing agents’ that may be accountable in situations of risk. This assemblage of robotic computation and sensory determination requires a clearer legal differentiation across the current static terminologies of person, property, liability and rights that maintain strict separations of object from subject. To neglect this, we argue, law will solely impute attributions of error to humans despite evidence of operation via mutual control.

The aim of this article is to examine how Ricœur’s critique of Husserl’s and Levinas’s notions of intersubjectivity informs his own alternative conceptualization of the intra- and interpersonal as a complex intertwining of moral selfhood and a just community. My first assumption is that law, as a prescriptive intervention in the social structure of our communal life, presupposes a phenomenology of our “being with others”. My second assumption is that Ricœur’s entire philosophical anthropology, and specifically his ideas on ethics, legality and justice, can be read as a prolonged response to Husserl’s solipsistic deadlock in the famous Fifth Cartesian Meditation. Taken together these two assumptions connect Ricœur’s early analysis of phenomenology with his complex reconceptualization of moral selfhood in Oneself as Another, culminating in the ethical maxim of “a good life with and for others in just institutions.”