An Ethos of Controversies: A Critical Analysis of the Interactive Legislative Approach
Author: Poort, L.M.
Source: Legisprudence, Volume 6, Number 1, June 2012 , pp. 35-55(21)
Publisher: Hart Publishing
Abstract:In this article, the interactive approach to law is critically analysed. The development of this approach finds its roots in both theoretical perspectives and legal paradigm developments. Addressing issues such as animal biotechnology: issues that are characterised by uncertainties, rapid changes, and moral controversies, require a more interactive legal paradigm so that norm development can respond to developments in society. The interactive legislative approach's basic elements include legal decision-making on a horizontal level (communication) and ongoing legal norm development in interaction with the specific field and society (responsiveness). Both elements strongly depend on a consensus-orientated way of thinking. To start, striving for consensus brings parties together by creating an arena in which parties are willing to co-operate. At the same time striving for consensus can justify the openness and flexibility of norms that are in need for further development. However, in this article, it is shown that for the interactive legislative approach's functioning in practice, a consensus-orientated way of thinking instead seems counterproductive. In furtherance of the argument, the results based on a twofold case-study concerning the regulation of animal biotechnology in Switzerland and the Netherlands are used It is argued that due to a strong focus on consensus within these processes of legal norm development, legal practice faces difficulties stimulating an ongoing process of legal norm development which ensures the flexibility of legal norms. Instead of focusing on consensus, the author suggests legislators should follow an ethos of controversies. The latter contains a way of normative thinking in which the controversies are of main focus.
Document Type: Research Article
Publication date: June 2012
- Legisprudence aims at contributing to the improvement of legislation by studying the processes of legislation from the perspective of legal theory. The content of the journal covers legislation in a broad sense. This comprises legislation in both the formal and the material sense (from national and European parliaments, regulation, international law), and alternatives to legislation (covenants, sunset legislation, etc.). It also takes in regulation (pseudo-legislation, codes of behaviour and deontological codes, etc.). The journal is theoretical and reflective. Contributions to the journal make use of an interdisciplinary method in legal theory. Comparative and system transcending approaches are encouraged. Sociological, historical, or economic studies are taken into account to the extent that they are relevant from the perspective of interdisciplinary legal theory. Dogmatic descriptions of positive law are not taken into consideration.
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