How to Theorise Collective Decision Making Concerning Legal Rules? The Need to Acknowledge the Rhetorical as well as The Rational Variables

Abstract

Both scholars and practitioners of law have a lot to win from insights into how political and societal forces have influenced the form and content that is given to specific rules. This is because these forces often continue to play a role in the subsequent phase of implementation. The rational model for analysing collective decision making distinguishes as relevant variables the actors involved, their positions towards the issue at stake, the salience the issue has for these actors and the influence or power of the actors. However, a theory about the collective decision making concerning legal rules would be incomplete without the inclusion of the variables of the rhetorical model. In this article it is clarified why we also need the rhetorical model to explain such decision making. The Dutch Governmental decision making concerning Pre-implantation genetic diagnosis (PGD) in 2008 is analysed as case study. In addition, the rational and the rhetorical model for analysing collective decision making are with respect to the object of research, the main assumption, the kind of application and the questions of what is accepted as the proof of truth and how the researcher is positioned towards the object of his research. This comparison shows that the insights produced by the rhetorical model, contrary to what lawyers often are made to believe, are not necessarily less objective than the insights produced by the rational model.