Wibren van der Burg

Legislation on Ethical Issues : Towards an Interactive Paradigm

In this article, we sketch a new approach to law and ethics. The traditional paradigm, exemplified in the debate on liberal moralism, becomes increasingly inadequate. Its basic assumptions are that there are clear moral norms of positive or critical morality, and that making statutory norms is an effective method to have citizens conform to those norms. However, for many ethical issues that are on the legislative agenda, e.g. with respect to bioethics and anti-discrimination law, the moral norms are controversial, vague or still evolving. Moreover, law proves not to be a very effective instrument. Therefore, we need a new paradigm, both for descriptive and for normative analysis. This interactive paradigm, as a normative position, can be summarised in two theses. The process of legislation on ethical issues should be structured as a process of interaction between the legislature and society or relevant sectors of society, so that the development of new moral norms and the development of new legal norms may reinforce each other. And legislation on ethical issues should be designed in such a way that it is an effective form of communication which, moreover, facilitates an ongoing moral debate and an ongoing reflection on such issues, because this is the best method to ensure that the practice remains oriented to the ideals and values the law tries to realise.

Bioethics And Law: A Developmental Perspective

In most Western countries, health law [and] bioethics are strongly intertwined. This strong connection is the result of some specific factors that, in the early years of these disciplines, facilitated a rapid development of both. In this paper, I analyze these factors and construe a development theory existing of three phases, or ideal-typical models. In the moralistic-paternalistic model, there is almost no health law of explicit medical ethics, and the little law there is is usually based on traditional morality, combined with paternalist motives. The objections to this model are that its paternalism and moralism are unacceptable, that it is too static and knows no external control mechanisms. In the liberal model, which is now dominant in most Western countries, law and ethics closely cooperate and converge, both disciplines use the same framework for analysis: they are product-oriented rather than practice-oriented; they use the same conceptual categories, they focus on minimally decent rather than the ideal, and they are committed to the same substantive normative theory in which patient autonomy and patient rights are central. However, each of these four characteristics also results in a certain one-sidedness. In some countries, a third model is emerging. In this postliberal model, health law is more modest and acknowledges its inherent and normative limits, whereas ethics takes a richer and most ambitious self image. As a result health law and ethics will partly diverge again.

The Expressive and Communicative Functions of Law, Especially with Regard to Moral Issues

In this article, I argue that law has two oftenneglected functions: the expressive and thecommunicative functions. They are especially importantfor legislation on moral issues, such as biomedicalethics and anti-discrimination law. The communicativefunction of law is a complex one: law may create anormative framework, a vocabulary to structurenormative discussions, as well as institutions andprocedures that promote further discussion. Theexpressive function of law is at stake when itexpresses which fundamental standards, which valuesare regarded as important. The recognition of thesefunctions is not only important for descriptivepurposes; it is also fruitful for normative theory.In this article, I argue that law has two oftenneglected functions: the expressive and thecommunicative functions. They are especially importantfor legislation on moral issues, such as biomedicalethics and anti-discrimination law. The communicativefunction of law is a complex one: law may create anormative framework, a vocabulary to structurenormative discussions, as well as institutions andprocedures that promote further discussion. Theexpressive function of law is at stake when itexpresses which fundamental standards, which valuesare regarded as important. The recognition of thesefunctions is not only important for descriptivepurposes; it is also fruitful for normative theory.

Beliefs, Persons and Practices: Beyond Tolerance

The central thesis of this paper is that, for most issues of multiculturalism, regarding them as a problem of tolerance puts us on the wrong track because there are certain biases inherent in the principle of tolerance. These biases – individualism, combined with a focus on religion and a focus on beliefs rather than on persons or practices – can be regarded as distinctly Protestant. Extending the scope of tolerance may seem a solution but if we really want to counter these biases, the principle of tolerance becomes so general that it loses any distinctive meaning. Therefore, we should accept the limited scope of tolerance and its biases. The principle of tolerance can still be useful for some problems where there is a clear and direct link to political or religious beliefs. Moreover, it should be cherished as a more general attitude or practice in Dutch society. For most problems of multiculturalism, however, we should appeal to broader theoretical frameworks that do justice to persons and practices.The central thesis of this paper is that, for most issues of multiculturalism, regarding them as a problem of tolerance puts us on the wrong track because there are certain biases inherent in the principle of tolerance. These biases – individualism, combined with a focus on religion and a focus on beliefs rather than on persons or practices – can be regarded as distinctly Protestant. Extending the scope of tolerance may seem a solution but if we really want to counter these biases, the principle of tolerance becomes so general that it loses any distinctive meaning. Therefore, we should accept the limited scope of tolerance and its biases. The principle of tolerance can still be useful for some problems where there is a clear and direct link to political or religious beliefs. Moreover, it should be cherished as a more general attitude or practice in Dutch society. For most problems of multiculturalism, however, we should appeal to broader theoretical frameworks that do justice to persons and practices.

The Neutral State and the Mandatory Crucifix

In this article we present a conceptual overview of relevant interpretations of what state neutrality may imply; we suggest a distinction between inclusive neutrality and exclusive neutrality. This distinction provides a useful framework for understanding the several positions as presented by the parties in the Lautsi case. We conclude by suggesting a solution of the Lautsi case that might provide a more viable solution.

The Regulation of Professionals. Two Conflicting Perspectives

The central thesis of this paper is that professionals and state regulators have incompatible perspectives, both on their professional practice and on the role of (self-)regulation. Regulators have a top-down perspective (with the state at the top) and focus on the product of the professions. Quantitative measurable output is what counts primarily, and regulation is an instrument to improve that output. Professionals have a centre-periphery perspective (with the profession at the centre) and focus on the professional practice. The quality of professional work is what we should focus on primarily and the standards implicit in the profession are what should guide us here. External regulation is usually a nuisance or a burden. These perspectives clash, which may explain the current dissatisfaction among professionals. I discuss two partly successful strategies to mitigate this conflict. The first is to construct a buffer or transformer between the two perspectives, consisting of an interstitial managerial layer. The second is to try to reframe the opposition.Abstract The central thesis is that professionals and state regulators have incompatible perspectives, both on their professional practice and on the role of (self-) regulation. Regulators have a top-down perspective (with the state at the top) and focus on the product of the professions. Quantitative measurable output is what counts primarily, and regulation is an instrument to improve that output. Professionals have a centre-periphery perspective (with the profession at the centre) and focus on the professional practice. The quality of professional work is what we should focus on primarily and the standards implicit in the profession are what should guide us here. External regulation is usually a nuisance or a burden. These perspectives clash, which may explain the current dissatisfaction among professionals. I discuss two partly successful strategies to mitigate this conflict. The first is to construct a buffer or transformer between the two perspectives, consisting of an interstitial managerial layer. The second is to try to reframe the opposition.

Motivation by ideal : A reaction to J. David Velleman

Moral ideals should not be seen as simple and purely personal, but as complex values with a social dimension that transcend attempts to formulate or realize them. Orientation towards ideals needs a realistic component: people should identify with the quest for an ideal, not with the ideal itself, and consider the possibility of negative consequences of their pursuit. Such realism about ideals includes acknowledging that ideals are not the only, nor the most important, motivating force of morality.

The Need for Audacious Fully Armed Scholars: Concluding Reflections

This is the concluding chapter of the edited volume Facts and Norms in Law. This volume explores the different ways in which researchers from various disciplines at present conceptualize facts, values, and norms, and the relation between them. The editors of this book argue that the current differences comprise a significant obstacle with regard to interdisciplinary cooperation. Therefore, understanding these differences and the extent to which the various disciplinary perspectives can be integrated is an important step towards interdisciplinary research. This chapter is not a concluding one in which everything can be nicely integrated. Today’s legal research is too diverse for that; more importantly, however, pluralism and perspectivism are unavoidable, and should even be valued in a positive manner. We need an eye for variation to do justice to the variety of legal cultures and legal fields, and to the range of disciplinary approaches that may help us to understand them. Therefore, I simply provide, under four headings, tentative reflections from my own selective perspective. First, I begin by situating the various contributions, and suggest some distinctions that might be helpful to understand the differences. Second, I discuss Peter Cserne’s suggestion of a tension between legal episteme and the episteme of the empirical sciences, and argue that we should adopt a more pluralist understanding of Lon Fuller to enrich his analysis. I then argue that we need to pay closer attention to normative research projects that are oriented towards evaluation and normative recommendation. In my view, legal scholarship should also contribute to debates on legal reform and policy recommendations, and law schools should take up that challenge. I conclude by distinguishing different types of interdisciplinary research, and examine how the relation between facts and norms does play a role in each of these types. I argue that perspectivism and selectivity are inevitable; in other words, there is no view from nowhere, nor is there a Herculean view that can integrate them all.