How law matters
sociological reflections on the symbolic dimension of legislation
pp. 55-69
in: Bart van Klink, Britta van Beers, Lonneke Poort (eds), Symbolic legislation theory and developments in biolaw, Berlin, Springer, 2016Abstract
The program of communicative legislation has developed in response to the deficiencies of traditional, democratic top down legislation. It assumes more horizontal relations between the legislator and the citizen. Compliance is seen as based not on commands backed up by sanctions, but on the positive symbolic effects of persuasion.In this text, which relies on sociological insights, I question some presumptions of the communicative program. In line with Habermas, I will maintain that in current complex societies the coercive power of the state and the formal procedural legitimacy of the law should be seen as building blocks of communicatively structured compliance. I also suggest that compliance may be based on symbolic effects other than persuasion. The signal-effects are an illustration of this. Finally, I will show that especially in circumstances in which the law contributes to overcoming problems of collective action, its effect will rely on the simultaneous impact of deterrent effects and persuasion-based effects. This is another illustration of the fact that the coercive power of the state and the formal procedural legitimacy of law can help to foster a persuasion-based acceptance of the law.
