Symbolic Legislation Theory and Developments in Biolaw

301 Pages·2016·3.622 MB·English

by  Bart van Klink, Britta van Beers, Lonneke Poort (eds.)

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
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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