Review of “Reframing Rights: Bioconstitutionalism in the Genetic Age” byS. Jasanoff (ed.)

Book details

S. Jasanoff (ed.), Reframing Rights: Bioconstitutionalism in the Genetic Age, Cambridge MA: MIT Press, 2011: 310 pages, ISBN: 978-0-262-51627-3

Shelia Jasanoff’s new edited volume on bioconstitutionalism provides an innovativeand conceptually coherent analysis of the dynamic relationship between new technologiesand constitutional frameworks. It is a most welcome introduction to a topic thatrequires extensive legal study and interdisciplinary enquiry. We learn from theAcknowledgments that the collection has been developed by academicsaffiliated with the Programme on Science, Technology, and Society (STS) at the J.F.Kennedy School of Government at the Harvard University. ^a It is indeed mosttelling that recent developments in life sciences and law have been defined in terms ofconstitutional theory by sociologists, anthropologists, bioethicists, and lawyersthrough the lenses of STS studies. ^b Despite an impressive body of legalwriting analysing the effects of the biotechnological revolution on notions of legalpersonhood, subjectivity, human rights, and legitimacy, a comprehensiveconceptualisation in constitutional theory is still lacking. This might stem from thefact that medical law, which deals with these issues more directly, has beentraditionally associated with private rather than public law, and developed as adistinct category. Although exploring the reasons of such a development would be mostinteresting, it exceeds the scope of this book review. Although legal scholars –initially influenced by deterministic and essentialist views of genetics (Rothstein2005, Rouvroy 2008, Huang 2000, Calvert 2008) – have beeninventive in formulating new rights, including the right to genetic privacy (Gostin1995, Dworkin 2000, Laurie 2002) reproductive autonomy, biological origins, or indeed‘(gen-) informational self-determination’ (Enquete-Kommission des DeutschenBundestag 2002; Stümper , Stümper Stümper 1996) traditionally the legislative or judicial acknowledgement ofthese rights at the constitutional level has been slow and scarce. Consequently,theorisations have been fragmented, usually focusing on particular issues, e.g.reproductive medicine, stem cell research, genetic testing, or biobanks.Jasanoff’s edited collection aims at addressing this gap. Therefore, it shouldinterest a variety of academic audiences in the field of science and technology studies,bioethics, sociology, and most importantly law. Due to its comparative aspect, it couldalso be of interest to more inquisitive policy makers regulating life sciences.

The volume comprises twelve chapters which constitute case studies covering a variety oftopics ranging from sterilisation, genetic testing, biobanks, stem cell and genomicresearch, to xenotransplantation and GMOs. They analyse different aspects of theconstitutional design affected by the changes in life sciences, including the(re)construction of legal personality, subjectivity, and (new) constitutional rights, aswell as the redefinition of legitimacy, accountability and citizenship in severalcountries. ^c The case studies discussed in the collection vary substantiallynot only thematically, but also in terms of employed research methods and writingstyles. The abundance of discussed issues, arising from the very ambitious objective ofthe project, at times obscures the rationale behind the book’s structure.Nevertheless, each of the authors highlights the juxtaposition of their analysis withthe central themes permeating the whole collection, namely coproduction between scienceand law, contingency and context-dependence, as well as the relationship betweenconcepts of biopolitics/biopower and the newly coined notions of bioconstitutionalism.Although not all the authors refer to Foucault’s work, it soon becomes obviousthat the book is deeply influenced by his theoretical approach. Another visible motiflinking all the parts is Sheila Jasanoff’s own body of work to which all authorsloyally refer in their contributions. This is to some extent understandable, as Jasanoff(also influenced by Foucault) is one of the pioneers in the field of science andtechnology studies. However, it also means that the collection is conceptually closed toother sociological and legal theories of Dworkin, Habermas, or Luhmann – to nameonly a few – that also provide a useful framework for the analysis of therelationship between constitutionalism, medicine, and science. They could significantlyenrich the study, especially in its global/transnational dimension. An extensiveanalysis of these theories extends beyond the scope of this review. Yet, it is perhapsworth mentioning here that for instance, Dworkin’s theory of rights could provehelpful in analysing the relationship between law, politics, and morality, which is atthe heart of any constitutional framework (Dworkin 1977, 1997). Habermasian concepts of ‘public sphere’ ,‘deliberation’, and ‘juridification’ have been already presentin the public international law and constitutional law discourses for some time now andcould also be used to explain the processes taking place in the field of biomedical law(Habermas 1987, 1998, 2003). Finally, an approach rooted in Luhmann’s systems theory provideslenses through which recent developments and debates can be viewed not necessarily asyet another crisis or a systemic failure of regulatory attempts, but on the contrary, asa new phase of regime autonomisation (Luhman, 1993, 1999; Fischer-Lescano 2003, Joerges 2006, Teubner 2012). The notion ofspontaneous system self-organisation present in systems theory could have supported someof the co-authors arguments about contingent development of biomedical constitutionallaw. Undeniably, not every analysis of ‘bioconstitutionalism’ has to engagewith these theories. However, acknowledging their existence would benefit theJasanoff’s collection in that it would necessitate a strong justification for theparticular approach that it has adopted and it would have placed it better in thecontext of constitutional law discourse.

Sheila Jasanoff is not only the editor of the collection but also the author of twosubstantial chapters. In the introduction she outlines the rationale underlying thevolume and its theoretical framework, and explains the central concept ofbioconstitutionalism. She starts with the common perception that legal texts have beenslow in addressing challenges of the biotechnological revolution instigated by thediscovery of the ‘text’ of DNA in 1953. In particular, she points at thereluctance of constitutional lawyers to grapple with new entities such as genes,embryos, stem cells, or hybrids/chimeras. However, she is quick to stress that the mainaim of the book is to confront the misconceptions about the modes of cooperation betweenscience and law, and the latter’s delay in responding to scientific developments.All the contributions demonstrate law’s permeability ‘as a conceptual andcultural resource’ preconditioning people’s (and indeed scientists’)‘normative imageries’. ^d Most importantly, she rejects thedeterministic view of science in its relationship with law and highlights the influenceof legal traditions and cultures – embedded in legal processes, institutions andstructures – on biological categorisations. This claim resonates with thewell-known concept of ‘interactional coproduction’ of science and politicsor law. (Jasanoff 2004, 2005) Thus, one ofthe central aims of the collection is to demonstrate that two traditionally separatedworlds of the normative and the epistemic ‘have supported each other for centuriesin patterns of mutual construction, stabilisation, and reinforcement’.^e In this respect the collection seems to confirm the alreadywell-established findings of STS studies.

Therefore, Jasanoff, followed by other authors in the collection, goes beyond this pointand argues further that the effects of the recent developments in life sciences on legalinstitutions such as personhood, rights, citizenship, and legitimacy, have been soprofound that they have redrafted established boundaries between science and law, andstate and society, and have redefined constitutional frameworks. This is how the notionof bioconstitutionalism emerges as a conceptual continuation of biopower andbiopolitics. The term is defined broadly to ‘include full range of sites andprocesses in which individuals work out their biopolitical relationships with theinstitutions that regulate them’. It extends beyond the amendments andinterpretations of legal texts to include constitutional practices and‘constitutional moments’ ^f which radically restructurestate-society relations. Like other constitutional theories, bioconstitutionalism ispreoccupied with the questions concerning definition and classifications of rights andloci of decision making power. This broad approach to constitutional law seems to fallinto recent discussions in transnational, postnational, and societal constitutionaltheory, which have also dealt with radical reconceptualisations of constitutionalism.Yet, the book does not elaborate on the contentious question of what constitutesconstitutional law. This lack of clear definition of a constitution has to be seen asthe biggest weakness of the book, as it remains unclear what makes the events andprocesses analysed by the authors reach the constitutional threshold and why thoserather than other changes contribute to the establishment of‘bioconstitutionalism’. Instead Jasanoff and other authors ^gfocus on another crucial motif running through the whole book, namely contingency. Mostcontributors claim that the science-law relationship and legal structures emerging as aresult of scientific changes are to a large degree coincidental in the sense that theyare highly dependent on the particular temporal and special context in which theyoccur.

This is clearly demonstrated in chapters 2 and 3 by A. Wellerstein and S. Jasanoffrespectively. Wellerstein’s historic analysis of the sterilisation laws andpractices in California in the first half of the 20^th century ^hleads him to conclude that the adoption and the final abandonment of the programme wasnot so much about value systems and science-driven ideas about the individual and publichealth as has been previously suggested. He argues that it was more aboutdecentralization of the administrative and institutional structures which gave enormousdecision-making powers to superintendents in mental health institutions and resulted indifferent numbers of sterilized individuals in particular hospitals across the state.This claim might of course be contested by those who insist that it is ideologies andspecific perceptions of mental and public health that enabled the adoption ofsterilization laws in the first place, and their strikingly successful implementation.Yet, Wellerstein’s criticism of the normative interpretation and his insistence onthe relevance of institutional structures and processes for the effect of the law shouldnot be ignored. Jasanoff’s chapter 3 continues this line of enquiry by showing howconstitutional arrangements and frameworks of deliberation have determined legaldefinitions and moral classifications in the area of embryonic stem cell research. Sheexamines the work of the bioethics committees and councils in the UK, Germany, and theUS to show how different perceptions about the role of ethics, rationality, andexpertise embedded in institutional designs and legal and political cultures lead tovery different legal outcomes in terms of defining new entities brought about by lifesciences (embryos, stem cells, human-animal chimeras). These normative classificationshave been then internalised, integrated, and perpetuated by scientists. This process ofmaking normative decisions, which Jasanoff calls ‘ontological surgery’, isin her opinion integral to the broader process of ontological politics. In other words,it is not only science that frames the legal discourse, but it is also politics, law andbioethics that shape science. The comparative perspective employed by Jasanoff is aimedto reemphasise inherent differences in the professional bioethical discourse, which inher opinion, has been universalised too quickly.

Chapters 4 and 5 written by G. Testa and I. Metzler further explore these arguments. Inhis contribution Testa also employs the comparative method of analysis to investigatehow cloned cells were enabled as socially legitimate scientific objects in Italy, the UKand the US. Through the analysis of the House of Lords’ decision in theQuintavalle case ⁱ, the proceedings of the Italian DulbeccoCommission and the proposal of the US President’s Council on Bioethics hedemonstrates how different modes of coproduction between ‘the epistemological, theontological and the normative’ ^j lead to very different outcomes interms of legalisation of the somatic cell nuclear transfer and ‘how politicalcultures (their historical constraints, their discursive resources, and their ways ofdistributing and recognising expertise) are integral to the development oftechnoscientific objects’. ^k However, as shown by I. Metzler in herchapter on the Italian embryonic stem cell debate, it can also be the inactivity ofcitizens – who did not use their constitutional right to vote in a referendum– rather than any particular activity of the state that transforms embryos intolegal persons. ^l This conclusion might already seem well known to those whohave interest in the area of reproductive medicine. However, Metzler provides a detailedanalysis of the events that preceded and followed the Italian referendum on IVF and stemcell research and presents a meticulous depiction of the complex triangular interactionsbetween the Catholic Church, Italian voters, and the state.

The next part of the book, although not formally divided, moves away from thediscussions about new biological entities. In chapters 6 and 7 J.D. Aronson and D.E.Winickoff insightfully analyse the ways in which the use of forensic DNA testing^m and biobanks in the U.S. enable the creation and redefinition ofconstitutional rights, such as the right to postconviction testing, and the freedom fromunreasonable searches and seizures guaranteed by the Fourth Amendment. Aronsondemonstrates that the possibility of performing a DNA test long after the conclusion ofa trial leads to a conflict between two main legal principles, the doctrine of finalityof courts’ judgments (i.e. social order) and the doctrine of certainty of evidenceand court procedures (i.e. the fundamental principle of a fair trial). His historicalanalysis of the US Supreme Court jurisprudence reveals that the mechanisms and rationalebehind the failure to construct a constitutional right to postconviction DNA testingdepended as much on policy considerations as on the reluctance of the justice system toaccept DNA testing as a ‘revelation machine’ despite the unprecedented raiseof its status. The power of ‘imaginaries of technology’ ⁿ in thejudicial decision making process constitutes the centre of Winickoff’s chapter. Itshows how different perceptions of technologies influenced the decisions aboutconstitutionality of large-scale forensic DNA databases and the construction of specialcategories of subjects (convicted felons) who in the courts’ view have lowerexpectation of privacy, and ‘whose rights are reframed without their directparticipation’. ^o

The last part of the book is concerned with different coproduction processes involved inlegalisation of new technologies, the (re)conceptualisation of persons or groupssubjected to these technologies, and their rights in different parts of the world. Inchapter 8 M. Tallachchini interestingly describes the distinct regulatory approaches torisks associated with xenotransplantation. She shows how they stem from distinct visionsof society: contractual and liberal vision in the US and paternalistic and verticalvision in Europe. ^p Similarly, K.S. Rajan in his chapter 9 convincinglyargues that the construction of subjectivity in contemporary global biomedicine isdeeply engrained in regimes of value and specific histories of ‘biocapital’.Using two examples of biotech companies in the US and India, he shows how genetictechnologies and industries in the US view patients as consumers of genetic testingsubjected to perpetual possible consumption, while in India the state acts as a marketagent setting up their premises of biotech firms in areas of high unemployment, thusmaking the Indian population available as experimental subjects to Western corporateinterests and in turn perpetuating postcolonial inequities. ^q

Chapters 10, 11, 12 by the end of the book investigate the effects that new technologieshave on the notion of democracy, legitimacy and citizenship. For J. Reardon (Ch. 10) thestruggle to avoid labelling of socially and scientifically constructed groups ofresearch subjects involved in the Human Genome Diversity Project and the HapMap projectconstitutes a constitutional moment which requires a response that would take intoaccount the dynamics of coproduction. ^r For R. Doubleday and B. Wynne (Ch.11) the unprecedented public engagement in the UK GMO debates on commercialisation andpromotion, and the public’s attempts to influence the decision making processes,also illustrate developments in the constitutional understanding of science, agency, andcitizens’ rights in relation to the state. ^s Finally, taking theseconsiderations on to the supranational level J. Dratwa (Ch. 12) looks at the text andtravaux preparatoire of the European Parliament resolution on theprecautionary principle, and concludes that its elevation to a constitutional principlewas used to support the unity of purpose among the EU institutions, but also tostrengthen the legitimacy of the EU in relation to member states. ^t Whileespecially the first part of the argument is well known to those engaged in theregulation of plant and human genetics, the second part is more interesting and shouldhave been further developed to include more recent and/or potential future advancementsin the area.

The research and findings presented in this collection are extremely informative,especially for constitutional and comparative lawyers interested in the processes ofconstitutionalisation who are less familiar with the literature on coproduction. At thesame time, however, they might find parts of the analysis difficult to engage with. Thisis primarily because of the rather vague concept of constitution assumed rather thandeveloped throughout the book. Although Jasanoff underlines the breadth of the notion ofbioconstitutionalism in her introduction, she does not refer to any constitutionaltheory that could provide a comparison for her definition. It would seem that that themain implicit point of reference for Jasanoff is the U.S. constitution coupled with theSupreme Court’s jurisprudence, which would suggest a rather narrow and traditionalunderstanding of constitution. However, this remark must remain a speculation. Apartfrom K.S. Rajan, none of the authors attempts to explain their understanding ofconstitutional framework against which they assess their case studies. This, of course,allows for flexibility in the scope and depth of analysis, and is to some extentunderstandable at the beginning of such an ambitious and large project that certainlyexceeds one book. However, it also undermines the full potential of this particularcollection. Globalisation has transformed the meaning of notions such as sovereignty orconstituting and constitutive power and as a result theories of constitutionalism haveundergone dramatic changes. ^u The epistemic and normative developmentsdescribed in the collection affect and are affected by these movements and it isunfortunate the book has not acknowledged these dynamics more explicitly. Had it doneso, it might have alleviated the impression that the collection is still more aboutcoproduction of knowledge and law and less about bioconstitutionalism. This impressionmight stem from the fact that the authors seem to employ a very broad (or maybedivergent?) understanding of law that includes not only constitutional and statutoryrights, judicial decisions, but also soft law instruments and outcomes of deliberativeprocesses. Such an understanding is acceptable and common in sociological, science andtechnology, and even some legal studies. However, it does carry the risk of blurringsemantic and normative boundaries. Clarifying the distinctions between law and non-law,as well as law and constitutional law, would help address a potential argumentsuggesting that, as indeed discussed in one of the chapters ^v, courts andlegislators are slow in acknowledging new constitutional rights. It would reinforce thesignificant and apposite claim about the constitutional changes initiated by lifesciences and the constitutionalisation of biomedical law. None of this should be takenas being dismissive or overly critical towards the book. Rather it is a call fordesperately needed further investigation in this area. The collection edited by S.Jasanoff is a very promising beginning of a long journey on which lawyers should finallyembark.

Endnotes

^aIt has been initiated at a panel discussion at the 2010 annual meeting ofthe Society for Social Studies of Science in Tokyo.

^bAlthough S. Jasanoff graduated as a J.D. from Harvard Law School she is mostfamous for her work as a professor in Science and Technology Studies. Also D.E.Winickoff is a Harvard Law School graduate who moved to the area of STS studies.

^cThe research includes case studies from Australia, Canada, Germany, India,Italy, the EU, the UK, and the U.S. with a heavier focus on the last two.

^dIntroduction, 9.

^eIntroduction, 13.

^fS. Jasanoff refers to the term developed by Bruce Ackerman in 1983.Introduction, 10.

^gWith the exception of M. Tallacchini, J. Dratwa, and K.S. Rajan, who inchapters 8, 12, and 9 accordingly deal with the supranational and global aspects ofbioconstitutionalism. However, they do not expressly address the problem of whatconstitutes law (in particular constitutional law), and seem to operate within certainassumptions and broad definitions of law.

^h‘Between 1909 and 1950s the state of California authorised over 20.000sterilisations of mentally ill and mentally deficient patients.’, Chapter 2: A.Wellerstein, ‘States of Eugenics: Institutions and Practices of CompulsorySterilization in California’, note 1 above, 29–58, 29.

ⁱR (on the application of Quintavalle) v Secretary of State for Health [2003]UKHL 13.

^jG.Testa, More than Just a Nucleus: Cloning and the Alignment of Scientificand Political Rationalities, 85–104, 102.

^kIbid.

^lI. Metzler, Between Church and State: Stem Cells, Embryos, and Citizens inItalian Politics, 105–124.

^mJ.D. Aronson, Certainty v. Finality: Constitutional Rights to PostconvictionDNA Testing, 125–146.

ⁿD.E. Winickoff, Judicial Imaginaries of Technology: ConstitutionalLaw and the DNA Round Up, 147–168.

^oIbid., 165.

^pM. Tallacchini, Risks and Rights in Xenotransplantation, 169–192.

^qK. S. Rajan, Two Tales of Genomics: Capital, Epistemology, and GlobalConstitutions of the Biomedical Subject, 193–216.

^rJ. Reardon, Human Population Genomics and the Dilemma of Difference,217–238.

^sR. Doubleday and B. Wynne, Despotism and Democracy in the UK: Experiments inReframing Citizenship, 239–262.

^tJ. Dratwa, Representing Europe with the Precautionary Principle,263–286.

^uThere is an impressive and insightful body of literature in this area: Ch.Joerges and E. Petersmann. 2006. Constitutionalism, MultilevelTrade Governance and Social Regulation, Oxford: Hart Publishing; M.Loughlin, N.Walker.2007. The Paradox of Constitutionalism: Constituent Power and Constitutional Form.Oxford: OUP; N. Walker. 2008. Beyond Boundary Disputes and Basic Grids: Mapping GlobalDisorder of Normative Orders. International Journal of Constitutional Law, 6:373–396; J. Klabbers, A. Peters, G. Ulfstein (eds.). 2009. TheConstitutionalization of International Law. Oxford: OUP; N. Krisch. 2010. BeyondConstitutionalism. The Pluralist Structure of Postnational Law, Oxford: OUP; P. Dobner,M. Loughlin (ed.) 2011.Twilight of Constitutionalism, Oxford: OUP; C. Thornhill. 2011. ASociology of Constitutions: Constitutional and State Legitimacy inHistorical-Sociological Perspective. Cambridge: CUP; G. Teubner 2012. Constitutional Fragments. Societal Constitutionalism and Globalisation,Oxford: Oxford University Press; G.W Anderson. 2012. Beyond `Constitutionalism Beyondthe State. Journal of Law and Society 39:3: 359–83.

^vJ.D. Aronson, Certainty v. Finality: Constitutional Rights to PostconvictionDNA Testing, 125–146.