Article Dans Une Revue Confluence des droits_La revue Année : 2025

Why a special issue on definitions and concepts in biolaw? 

Résumé

Concepts and definitions play a central role in law as they allow, respectively, to name and describe, as well as delimit a real or fictional entity, and ensure a common understanding of it, with a view to legally qualifying it in order to associate it with a legal regime. By focusing on the conceptual dimension, we intend to go beyond an approach based purely on notions. As far as possible, the discussion will focus on concepts, rather than notions, the latter being regarded here as a necessary preliminary step to any reflection on the former. We offer to consider that a notional analysis entails the identification of all criteria that may be used to recognize an element of reality, in an exhaustive manner, by identifying and examining each criterion, without necessarily determining their relative relevance for identifying that reality. In contrast, a conceptual analysis requires selecting only those criteria that are relevant for identifying the element of reality, and assigning to each selected criterion its proper weight and position in order to reveal the typical features of the object described. For the science of law—as a scholarly discourse on law—the act of conceptualization lies at the core of the scientific approach. Numerous studies in legal theory, or more broadly in fundamental legal research, have addressed this topic. In the field of biolaw—understood here as the body of legal norms and legal questions pertaining to the biological domain and/or arising from technological advances in biomedicine, and more broadly in biotechnology—definitions and concepts present particular challenges that have rarely been addressed directly and transversally within legal scholarship. Yet, definitions and concepts are of critical importance in this area, given the continuously evolving and unpredictable nature of scientific practices, and the absence of consensus around many scientific definitions. The establishment of definitions thus constitutes a fundamental concern for biolaw, as it enables the law to apprehend and orient such practices in a coherent and effective manner. While biolaw may itself be approached as a concept within the science of law, it is considered here, first and foremost, as a domain of legal inquiry, forming the subject matter of the present study. Nevertheless, the scholarly work produced within this domain contributes to the conceptual framing of biolaw, whose usage—as a doctrinal category—would benefit from greater consistency and theoretical refinement. This thematic raises a series of concrete and pressing legal questions: Can legislation or regulation meaningfully define emerging innovations in biomedicine or biotechnology while these developments remain in flux, or in fields characterized by scientific and technological uncertainty? To what extent may legal or regulatory definitions diverge from those adopted by the scientific community, and under what conditions is such divergence justified? What normative legitimacy does the legal scholar or legislator possess in departing from scientific definitions? Is it preferable, in certain contexts, to refrain from defining a given object of regulation, due to the inherent difficulties in tracking developments within dynamic and highly technical fields? Under what circumstances, and for what reasons, have legislators or regulatory authorities chosen to define—or to abstain from defining—biomedical innovations or biotechnologies? When and why has the law opted to regulate on the basis of the intended use of a given technology rather than the intrinsic nature of the object itself? While legal literature generally focuses on the legal or regulatory frameworks to be adopted and on the challenges posed to such regulation by biomedical and biotechnological innovations, this special issue focuses instead on how legislation—or regulation more broadly—defines or fails to define these innovations, and on the consequences that definitions and concepts may have for their development.

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hal-05226399 , version 1 (27-08-2025)

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Aurélie Mahalatchimy, Xavier Magnon, Marie Glinel. Why a special issue on definitions and concepts in biolaw? . Confluence des droits_La revue, 2025. ⟨hal-05226399⟩
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