An Ethos of Controversies: A Critical Analysis of the Interactive Legislative approach

L.M. Poort

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In this article, the interactive approach to law is critically analysed. The development of this approach finds its roots in both theoretical perspectives and legal paradigm developments. Addressing issues such as animal biotechnology: issues that are characterised by uncertainties, rapid changes, and moral controversies, require a more interactive legal paradigm so that norm development can respond to developments in society. The interactive legislative approach's basic elements include legal decision-making on a horizontal level (communication) and ongoing legal norm development in interaction with the specific field and society (responsiveness). Both elements strongly depend on a consensus-orientated way of thinking. To start, striving for consensus brings parties together by creating an arena in which parties are willing to co-operate. At the same time striving for consensus can justify the openness and flexibility of norms that are in need for further development. However, in this article, it is shown that for the interactive legislative approach's functioning in practice, a consensus-orientated way of thinking instead seems counterproductive. In furtherance of the argument, the results based on a twofold case-study concerning the regulation of animal biotechnology in Switzerland and the Netherlands are used It is argued that due to a strong focus on consensus within these processes of legal norm development, legal practice faces difficulties stimulating an ongoing process of legal norm development which ensures the flexibility of legal norms. Instead of focusing on consensus, the author suggests legislators should follow an ethos of controversies. The latter contains a way of normative thinking in which the controversies are of main focus.
Original languageEnglish
Article number6
Pages (from-to)35-55
Number of pages21
Issue number1
Publication statusPublished - 2012


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