The Irony of a Symbolic Crusade: The Debate on Opening Up Civil Marriage to Same-Sex Couples
SOCIAL AND SYMBOLIC EFFECTS OF LEGISLATION UNDER THE RULE OF LAW, pp. 245-275, N. Zeegers, W. Witteveen and B. van Klink, eds., Edwin Mellen Press, 2005
25 Pages Posted: 1 Sep 2009
Date Written: August, 28 2009
In the first half of this paper, I formulate a communicative or interactionist approach to law in the form of a number of empirical and normative theses. I discuss how the development of legal norms shifts from a vertical model in which the legislator authoritatively sets and implements certain standards for society to a more interactive process among various societal actors. The separate processes of norm development and norm implementation merge into one continuous process of norm development and implementation. Consequently, the functions of legislation shift. Law may have an expressive function: it may express what we, as a political community (or a part of it), hold to be essential, what the basic values are that we want to cherish. And it may have a communicative function: it may create a common normative framework and a vocabulary to structure normative discussion on certain issues. These functions (sometimes taken together as the symbolic function) are not full alternatives to the protective and instrumental functions; they are usually complementary.
The second part of the paper is a case study about the process leading to the opening up of civil marriage in 2001 in the Netherlands. The societal and parliamentary debates leading to the Equal Treatment Act had strong implications for the debate on opening up civil marriage. During the debate on the ETA, both the general public and the political forum came to regard Article 1 of the Dutch Constitution as expressing the most fundamental value of our Constitution. Moreover, the basic rhetorical structure of the debate on the ETA became that of a conflict between the equality norm of Article 1 and various other constitutional rights protecting specific spheres from government intrusion. As this rhetorical structure had become so strong, because of the intense opposition, it was also dominant in the debate on the opening up of civil marriage, which may be part of the explanation why the process towards opening up civil marriage was unstoppable.
Keywords: legislation, symbolic function, expressive function, communicative function, interactionism, same-sex marriage, anti-discrimination law, Netherlands, rhetorical analysis
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