Law’s Environment: Critical Legal Perspectives

The fol­low­ing is the intro­duc­tion to Ubal­dus de Vries & Lyana Fran­cot (Eds), Law’s Envir­on­ment: Crit­ical Legal Per­spect­ives (Eleven Inter­na­tional Pub­lish­ing, 2011), pub­lished sub­sequent to the Crit­ical Legal Con­fer­ence 2010 held in Utrecht.

Intro­duc­tion

Law’s envir­on­ment is char­ac­ter­ized by socio-​structural devel­op­ments that demand, now more than ever, a crit­ical per­spect­ive, not only on law but also on legal schol­ar­ship. The envir­on­ment of law refers to soci­ety in the widest sense of the word. Of course, one may refer to the envir­on­ment of law in ter­rit­orial terms: the envir­on­ment of law is that what is under the author­ity of the state, lim­it­ing soci­ety to national soci­ety. Indeed, mod­ern lines of thought took the nation state as point of depar­ture for ana­lysis and some con­tem­por­ary thinkers, also in legal the­ory and philo­sophy, still adhere to, what is termed, meth­od­o­lo­gical nation­al­ism in their field of study.¹ Although this may still be a legit­im­ate start­ing point for ana­lysis, it does not allow account­ing for devel­op­ments that tran­scend the nation state. Our under­stand­ing of law’s envir­on­ment in this book of essays is not lim­ited to this per­spect­ive. Rather, we believe it to be more adequate to refer to law’s envir­on­ment as the total­ity of pro­cesses that law seeks to reg­u­late through com­mu­nic­a­tion – for bet­ter, for worse and some­times in vain.

The envir­on­ment is not con­sti­tuted and defined by ter­rit­ory solely but also by social, psy­cho­lo­gical and bio­lo­gical pro­cesses that take place in and out­side ter­rit­ory, then, now and in the future, here and there. What is shared with mod­ern thought is the idea of a func­tional dif­fer­en­ti­ation of the social pro­cesses, dis­tin­guish­ing between polit­ics, eco­nomy, reli­gion, mor­al­ity, cul­ture, art, eco­logy, love, law itself, etc. The notion of law’s envir­on­ment implies a rela­tion­ship between law and its entire envir­on­ment. This rela­tion­ship is one of inter­play: the envir­on­ment with all its noise and tur­bu­lence determ­ines the role and pos­i­tion of law while at the same time law seeks to address devel­op­ments and phe­nom­ena in its envir­on­ment. This inter­play comes about in and through com­mu­nic­a­tion and con­sti­tutes an inter-​relationship.

At the same time, the inter-​relationship is lim­ited, in both ways. The envir­on­ment with its typ­ical quirks and wil­ful­ness lim­its the pos­sib­il­it­ies of law’s func­tion, while at the same time law seeks to limit or at least: to define the pos­sib­il­it­ies of the envir­on­ment. Although the lim­it­a­tion is double-​sided, the inter-​relationship is not fully sym­met­rical. It is if and when struc­tural changes in the envir­on­ment occur, that law’s reg­u­lat­ory and lim­it­ing func­tion reveals its own lim­ited capa­cit­ies. Law is cap­able to respond to the demands of the envir­on­ment as long as these demands fit within the struc­ture of law as it is, here and now. Or to put it dif­fer­ently: as long as these demands are voiced in such a way that it con­nects with the exist­ing legal struc­tures. But if the demands derive from struc­tural changes that are paradig­matic, law shows its lim­it­a­tions and short­com­ings. These lim­it­a­tions and short­com­ings are an inher­ent part of the exist­ing law, dis­clos­ing the side effects of its applic­a­tion and, as a con­sequence, the inab­il­ity to come up with ‘new’ law to address that what causes these side effects and if it addresses the side-​effects, only haphaz­ardly and belatedly. The law on phar­ma­ceut­ical pat­ents is per­haps illus­trat­ive. Pat­ents on medi­cines exist to pro­mote phar­ma­ceut­ical innov­a­tion as they guar­an­tee an exclus­ive prop­erty right in the new medi­cine. It allows the pos­sib­il­ity of a return on invest­ment and a decent profit for share­hold­ers. Pat­ent law, and its focus on exclus­ive prop­erty rights and profit gen­er­a­tion, fits within the over­all scheme of mod­ern private law and its focus on indi­vidual prop­erty, reg­u­lated and pro­tec­ted within the nation state and among states. The side effect of this reg­u­lat­ory frame­work is that mil­lions of people are devoid of life-​saving or life-​prolonging medi­cine, for example, those suf­fer­ing from AIDS – a prob­lem that tran­scends states and is a truly global prob­lem. It shows law’s lim­ited func­tion and the side effects it pro­duces, which can only be addressed when recon­sid­er­ing law’s func­tion at a struc­tural level both in terms of the envir­on­ment it serves and what it serves.²

Devel­op­ments and events, as the pat­ents example illus­trates, show that changes of a struc­tural nature unavoid­ably take place within law’s envir­on­ment. These devel­op­ments become mani­fest in phe­nom­ena such as the fin­an­cial and eco­nomic crisis, the ongo­ing human­it­arian wars, civil unrest, eco­lo­gical dis­asters (whether caused by man or nature), and the increas­ing intol­er­ance towards ‘oth­ers’. These devel­op­ments, and the phe­nom­ena with which they are rep­res­en­ted, can be encap­su­lated as symp­toms of the con­tem­por­ary pro­cesses of glob­al­iz­a­tion. These pro­cesses are inter­de­pend­ent and illus­trate that glob­al­iz­a­tion is mul­ti­di­men­sional. The last dec­ades or so have seen a seis­mic trans­form­a­tion in the way we can com­mu­nic­ate, enabled by inform­a­tion tech­no­logy; we have seen the emer­gence of a global eco­nomy and shifts in the organ­iz­a­tion of trade and fin­ance enabled by dereg­u­la­tion of state con­trol; travel has become more easy (and cheap); we have seen the form­a­tion of state-​transcending polit­ical entit­ies – both gov­ern­mental and non-​governmental, and with it instances of global law though often still mas­quer­ad­ing as inter­na­tional law and in the last dec­ade or so presen­ted as ‘transna­tional law’.³

All these devel­op­ments and pro­cesses sug­gest that we live in a world soci­ety, chan­ging for ever the cus­tom­ary ways of under­stand­ing our life world. Indeed, they have an impact on how we live our lives as indi­vidu­als, both enabled and forced to make life choices and develop our iden­tit­ies: IPod IPhone IPad Iam.⁴

Mod­ern­iz­a­tion is not longer only char­ac­ter­ized by pro­cesses of indus­tri­al­iz­a­tion and demo­crat­iz­a­tion, safely anchored within the con­fine­ment of the nation state. These pro­cesses are incor­por­ated, so to speak, in the wider and encom­passing pro­cesses of glob­al­iz­a­tion and indi­vidu­al­iz­a­tion. These pro­cesses char­ac­ter­ize con­tem­por­ary mod­ern­iz­a­tion. Con­tem­por­ary mod­ern­iz­a­tion the­or­ies provide us with ana­lyses as to how soci­ety evolves, changes, devel­ops, and more in par­tic­u­lar: pro­gresses. There is not a single mod­ern­ity, nor one uni­form the­ory. Rather, one could speak of ‘mul­tiple mod­ern­it­ies’, as pro­posed by Eis­en­stadt. Accord­ing to this Israeli soci­olo­gist, the notion of mul­tiple modernities:-

goes against the views long pre­val­ent in schol­arly and gen­eral dis­course. It goes against the view of the ‘clas­sical’ the­or­ies of mod­ern­iz­a­tion and of the con­ver­gence of indus­trial soci­et­ies pre­val­ent in the 1950s.⁵

It sug­gests an approach that does not take as its point of depar­ture the idea that the West­ern pro­gramme of mod­ern­iz­a­tion would res­ult in a uni­ver­sal and homo­gen­eous (world) soci­ety. On the con­trary. The long-​held view that glob­al­iz­a­tion entailed global mod­ern­iz­a­tion; viz. the global vic­tory march of West­ern demo­cracy, val­ues and norms is now eroded by the side-​effects of this vic­tory march. It is these side-​effects that form the object of ana­lysis of con­tem­por­ary mod­ern­iz­a­tion the­or­ies, and allows, depend­ing on the focus, mod­ern­ity to be described as a reflex­ive mod­ern­ity, a liquid mod­ern­ity, a second mod­ern­ity, a post-​modernity, etc. and to observe anti-​modern devel­op­ments as well, which become vis­ible in the re-​emergence of a nation­al­ist sen­ti­ment of the dan­ger­ous kind across Europe – a sen­ti­ment that thrives on the expli­cit exclu­sion of the phys­ical ‘other’ within our midst, shap­ing polit­ics and hijack­ing pub­lic debate with free­dom of speech as the highest demo­cratic value to silence the other.⁶

The­or­ies on mod­ern­iz­a­tion con­sti­tute a suit­able and effect­ive point of depar­ture to make sense of soci­ety and, we believe, to frame and ana­lyze the rela­tion­ship between law, polit­ics and other sys­tems in a crit­ical way. These the­or­ies can con­trib­ute to under­stand­ing law’s func­tion vis–

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