The working of power in communicative regulation: The case of research with human embryos

Abstract

Summary In the Embryo Law, the Dutch government tries to facilitate communication about the application of legislative rules for research with spare embryos between the different stakeholders. The Embryo Law can therefore be considered as a piece of regulation in which the ideas of the communicative approach to legislation are put into practice. The central claim of the communicative approach is that by according communication processes a central position in the application of general, legislative, rules, a plurality of perspectives will be integrated in these processes and the specified rules that result from them. This is seen to be desirable for reasons of the effectiveness of rules as well as for reasons of democracy, as I shall elaborate on later. In this paper I counter the central claim of the communicative approach by arguing that the integration of a plurality of perspectives will not take place unless attention is paid to the power mechanisms involved in communication about the application of rules. In addition I will address the question how to investigate the working of power in communication processes that are involved in the regulation of biotechnological issues. To do this I will use the information gathered from pioneering empirical research into case-to-case decision making on research with spare human embryos in the Netherlands. Building on the insights this effort produces I will elaborate on what would be included in a systematic investigation of the working of power in communication on the application of legal rules on the use of human embryos in research.