The emerging interactionist paradigm and the ideals of democracy and rule of law

Wibren van der Burg

pp. 37-53

in: Bart van Klink, Britta van Beers, Lonneke Poort (eds), Symbolic legislation theory and developments in biolaw, Berlin, Springer, 2016

Abstract

This chapter presents the theory of interactive legislation in the context of a broader interactionist paradigm. I show how different types of newly emerging legal phenomena fit within the shift towards this paradigm. Law-making becomes a cooperative effort on the part of various stakeholders, of which the state is one, but not necessarily the most important. I compare this emerging interactionist paradigm with the traditional top-down instrumentalist one.The second part of the chapter discusses whether interactive legislation weakens democracy or the rule of law. I argue that, on the contrary, interactionist law may reinforce both under specific conditions. I formulate four requirements from a democratic point of view. When discussing legal certainty – a core value of the rule of law – we should distinguish between doctrinal or epistemic certainty and practical certainty. Interactive legislation is clearly detrimental to doctrinal certainty, but practical certainty may be improved rather than impaired by interactive legislation.