Law’s Environment: Critical Legal Perspectives

by Ubaldus de Vries | 30 Sep 2011

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-

1
For an overview of the concept; see: D. Chernilo, ’Methodological Nationalism: Theory and History’, paper presented at the Annual Conference of the International Association of Critical Realism, King’s College, London, July 2008. See also (last accessed: 18 May 2011): http://www.kcl.ac.uk/depsta/law/events/0708/iacr/papers/Chernilo_Methodological_Nationalism.pdf
2
There are many causes to the AIDS crisis in Africa and elsewhere. Te point is to show that law’s function creates side effects in its application that demands reconsideration of the function if we want to take these effects seriously. And only outside the law changes are slowly taking place, for example, in respect of the Access to Medicine Index ( HYPERLINK “http://www.accesstomedicineindex.org/” http://www.accesstomedicineindex.org/ (last accessed: 29 May 2011))). On patents and property rights, see WIPO, Patent Protection and Access to HIV/AIDS Pharmaceuticals in Sub-Saharan Africa, The International Intellectual Property Institute, Washington 2000. But also: Lawrence Lessig, Free Culture: How Big Media Uses Technology and the Law to Lock Down Culture and Control Creativity, 2004, published under the creative commons license; see: HYPERLINK “http://www.free-culture.cc/” http://www.free-culture.cc/ (last accessed: 18 May 2011. Less radical: Th. Pogge, World Poverty and Human Rights, Polity Press, Cambridge 2008 (2^nd ed.), Chapter 9.
3
See also Eugene McNamee’s contribution in this book
4
After: http://www.mobilemac.nl/iphone/kijktip-ipod-i-phone-i-am/ (17 May 2011).
5
S.N. Eisenstadt, ‘Multiple Modernities’, in: S.N. Eisenstadt (ed.) Multiple Modernities, Transaction Publishers, New Brunswick/London 2002, p. 1-30
6
See also: U. de Vries, ‘‘Anger and Courage: Fitna and the Politics of Disengagement’, Sfera Politicii, Vol. 10, Nr. 4, 2010, p. 165-170