B. Rights and Rules: Law

In this study I have taken a broad approach to law, constantly noting the spectrum from the formal law of state and courts to the informal laws of self-regulation and religion. That spectrum is found in conceptual cri­tiques, as well as in empirical studies of law.

The value of a fine-grained study such as the present one is that it may explore those interstices and interpenetrations, to find out a little more of how it is that law can take account of scientific or ethical considerations. The mechanisms we see emerging in food regulation (both formal and informal) illustrate some of the critiques of formal reliance on determin­istic rules. Schauer follows Wittgenstein’s warning that rule-following is ‘deeply problematic’ and underdetermined.

But again as with any inductive process, the problem of underdetermination does not make induction in reality impossible. It does, however, make the inductive result dependent on contingent values lying outside the particulars around which the inductive generalization is constructed.^[1149]

If rules do not determine outcomes, it is through the application of ‘contingent’, extra-legal (Teubner’s ‘higher’) values that we again find the possibility of a circuit breaker, a wormhole that frees legal deliber­ation from the tyranny of rules.

To see some of these operations in practice in a multicultural context, we can turn to the Bouchard-Taylor report commissioned by the govern­ment of Quebec, on ‘accommodation practices related to cultural differ­ences’. The sociologist Gerard Bouchard and the philosopher Charles Taylor were reporting within the framework of the Canadian Charter of Rights and Freedoms on the accommodation of minority cultural prac­tices within a dominant quebecoise society, which is concerned to maintain its own distinctive character in an Anglo-dominated North America. The legal language of the Charter emphasises ‘rights’ and ‘reasonable accommodation’, which implies that the dominant society should ‘accommodate’ foreign difference, leaving the ‘right’ intact. Bouchard and Taylor emphasise the need for dialogue and work on both sides to help overcome deadlocks of competing rights and zero-sum games. Their more constructive term is ‘concerted adjustment’: all parties need to understand each others’ practices and beliefs, and find means by which they may be expressed.^[1150] This shifts the paradigm from that of law to that of discourse, within and among communities.

‘Concerted adjustment’ is a further illustration of the possibility and need to reach across legal categories, like rights and rules, to find ways in which their intention may be worked out in practice. Similar approaches were identified in the case studies, as potential if not yet always actual solutions to ethical and cultural disputes over food. Consumers, animal rights activists, religious scholars, regulators, the courts and various branches of the food industry can draw on veterinary and ethological research and ethical, as well as legal, debate. These deliberations can help to apply and to define more widely accepted standards and to devise improved animal welfare practices. Food scientists and regulators can work with cooks to study cultural practices in food preparation. This can be combined with their knowledge of bacteria and risks of contamination to improve food handling guidelines. In each case advances are made, not through application of rules and invocation of rights, but through the vigorous interplay of values that are open to debate.

C.