Symbolic legislation and authority
pp. 87-104
in: Bart van Klink, Britta van Beers, Lonneke Poort (eds), Symbolic legislation theory and developments in biolaw, Berlin, Springer, 2016Abstract
Is symbolic legislation a sign of political crisis? Does it undermine authority? The following argument of this chapter, which examines the relationship between symbolic legislation and authority, claims that things are more complicated than the common view suggests. In the common view symbolic legislation is conceived as ineffective law-making, because it fails (or so it seems) to address the real issues. In addition, symbolic legislation may even appear as an instrument of deception that ultimately serves the purpose of preserving the political status quo by pretending a problem-solving orientation that actually does not exist. It is this kind of perspective that sees the symbolic legislation as a potential threat to political authority. What are the shortcomings of the common view? First, it assumes that authority is tightly connected to the performance of political actors. However, as the analysis of the different notions of authority in this chapter tries to show, political authority is something else than output legitimacy. In short, what matters in this respect are more the sources of authorities and less their results. The second problem refers to the symbolic dimension in politics. Whereas the common view seems to ignore or, at least, underestimate the role of the symbolic dimension in politics, the argument in this chapter attempts to demonstrate the strong ties between the symbolic dimension and politics in general and the importance of expressive and constituent functions of the symbolic legislation in particular. Building on these insights, the relationship between the expressive and constituent functions and the (ever fragile) claims every political authority is made of becomes visible.