The tension between the functions of law
ending conflict versus dynamics
pp. 71-86
in: Bart van Klink, Britta van Beers, Lonneke Poort (eds), Symbolic legislation theory and developments in biolaw, Berlin, Springer, 2016Abstract
This chapter addresses the tension between ending conflict and stimulating dynamics, while at the same time seeking to avoid a repetition of arguments from earlier debates between opponents and proponents of communicative approaches to law. It does so by exploring the opportunities that an ethos of controversies can create in a two-track approach to the development of legal norms. An ethos of controversies is developed in response to failures in consensus-thinking that arise when addressing complex issues with a strong moral impact, such as developments in biotechnology. This ethos focuses primarily on structuring decision-making around complex issues in situations when aiming for consensus is premature. The two-track approach consists of a legal track, in which legal decisions can be made, and a moral track, in which moral debate may continue even after a decision has been made. It is argued that an interplay between these two approaches ensures that norm development can continue whenever the context requires, while legal conflicts can also be brought to an end. To that extent, the tension between ending conflict and stimulating dynamics need not be as great as often assumed.