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Empirical Legal Research in Action

Reflections on Methods and their Applications

Edited by Willem H. van Boom, Pieter Desmet and Peter Mascini

Empirical legal research is a growing field of academic expertise, yet lawyers are not always familiar with the possibilities and limitations of the available methods. Empirical Legal Research in Action presents readers with first-hand experiences of empirical research on law and legal issues.
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Usha Natarajan

This chapter examines how the Third World Approaches to International Law (TWAIL) movement has approached environmental issues through division into three phases: first, the period following independence, particularly the 1960s and 1970s, where Third World international lawyers prioritized natural resource governance; second, the inauguration of the acronym TWAIL in the 1990s and a movement that remained largely sceptical of and disengaged from international environmental law; and third, the contemporary moment with a resurgence of interest in the environment within TWAIL. I structure my description in three phases on the basis of the predominance over time of different methods, approaches and attitudes on the part of Third World international lawyers to the environment. TWAIL scholars self-identify as a movement more frequently than as a method. While Third World approaches have some shared methodological characteristics that this chapter identifies, ultimately it is our political commitments that unite us, including a keen awareness of the politics of method and its implications for knowledge production.

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Edward Mussawir and Yoriko Otomo

Over the past decade there has been a growing interest internationally in ‘animal law’ as a topic of legal study, sometimes taught as part of an environmental law programme, and sometimes taught as a self-standing course. More than in other fields of legal study however, animal law faces an intellectual terrain that is often polemical and rhetorical, with a reformist agenda. While the concerns that drive this mode of scholarship may be admirable, a focus on advocacy that seeks to draw on ‘good law’ to achieve its political aims or to make law good where it is currently ‘failing’ or ‘out of date’, renders it difficult to attend closely to the question of method in relation to law and the animal. It is difficult to think, in other words, about how the animal may be approached as a subject or object of legal knowledge when there is a presumption that ‘law’ is simply a passive repository for the ideologies of a progressive liberal society. In this chapter, the authors try to preserve a space for thinking differently about the methods and tools that can be brought to the field of animal law. The chapter presents a dialogue between its two authors who draw upon and comment upon their approaches to analysing the work that law does in controlling, constructing, destroying, and perhaps caring, for animal life. The authors explore in this way, some of the necessary but easily neglected facets of research method and conduct. They touch specifically on the ways in which it may be possible to attend to the animal either within the technologies of law themselves or in excess of their capacity to manage the boundaries between public and private, nature and culture, feminine and masculine, and the sacred and profane. (This critical impulse is, of course, indebted to a rich scholarship of critical legal theory and critical legal studies.) They also reflect on the pleasures and difficulties of using various research methods.

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John Paterson

Systems theory characterizes the most complex problems confronting environmental law as essentially fractured among a variety of functional communicative systems. Taking this insight seriously, however, reveals that the most advanced tools of environmental law, such as the principle of precaution, must also be understood as similarly fractured. Noting the controversy that surrounds the principle, this chapter sets out to discover whether the disagreements may best be understood as arising from different system-specific constructions and whether such a finding might help to favour constructions which leave open its potential for rational decision making rather than those which essentially mistake it for other principles. This endeavour in turn calls for a methodological approach which can be efficiently deployed in an appropriate setting in order to tease out different system-specific constructions. Critical discourse analysis is proposed and applied in the reading of a key court judgement relating to the implementation of the principle in the context of a regulatory decision. The compatibility of critical discourse analysis with systems theory is addressed, with the suggestion being made that this can be achieved by understanding the latter as in essence the critique of critique. The hope is expressed that the chapter’s findings encourage others to consider the advantages that may be gained from understanding complex environmental law problems in terms of systems theory and specifically with the assistance of critical discourse analysis.

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Lucy Finchett-Maddock

This chapter seeks to approach environmental law education through a ‘speculative’ methodology of entropy in environmental law practice. It is suggested that entropy as the basis of a theory of ‘complexity’ is helpful in teaching environmental law, accounting for the complex myriad of relations between humans, non-humans and their environment, as well as relations and rights that we are yet to understand. Processes of entropy are speculative as they take in to account the dynamism and preponderance of chaos, uncertainty (‘hyperchaos’) and the unknown within and outside law and its surrounding environment. This is important in teaching environmental law, given the ever-changing and interconnected nature of the world around us. A speculative understanding of entropy therefore is argued as supporting both understandings of linear and nonlinear time, or in forms that we may not even have the words as yet to describe, thus placing understandings of space and time at the heart of environmental legal education and practice. Clinical legal education is presented as offering new possibilities of speculative environmental law practice that account for a speculative understanding of entropy, using the pedagogies of ‘Skill City’ and ‘Walking the Lawscape’ as illustrative examples.

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Edited by Andreas Philippopoulos-Mihalopoulos and Victoria Brooks

This timely Handbook brings innovative, free-thinking and radical approaches to research methods in environmental law. With a comprehensive approach it brings together key concepts such as sustainability, climate change, activism, education and Actor-Network Theory. It considers how the Anthropocene subjects environmental law to critique, and to the needs of the variety of bodies, human and non-human, that require its protection. This much-needed book provides a theoretically informed analysis of methodological approaches in the discipline, such as constitutional analysis, rights-based approaches, spatial/geographical analysis, immersive methodologies and autoethnography, which will aid in the practical critique and re-imagining of Environmental Law.
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Robyn Bartel

Environmental law and its students stand accused of ignoring space. The degree of reflexivity given to law by jurisdiction, history, political favour and case-by-case flexibility is chimeric rather than substantive, serving only to further ensure law’s hegemonic attempts to conceal geography and to silence non-human voices. This chapter will demonstrate how analyses of vernacular knowledge and plant perspectives in particular unsettle the universalist, anthropocentric and essentialist gaze of environmental law, while at the same time offering explanatory power hitherto concealed.  An alternative methodological pathway for the interrogation of environmental law, revealing its hidden tenets and consequences, as well as a potential opportunity for reform, is presented. To transform its vision and impact environmental law must interrogate its universalist, essentialist, anthropocentric and also utilitarian assumptions.  Such a transformation involves a finer-grained attendance to geographical conditions, including not only spatial but also temporal diversity, change and emergence, as well as the incorporation of non-human perspectives and a de-centring of the human. Such lessons of contextualization and deep democratization have relevance for law and policy analysis more generally.

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Andreas Kotsakis

This chapter examines the intellectual phenomenon of theoretical aversion in legal scholarship, as it specifically manifests in environmental law. It first demonstrates how a proposed turn to methodology seeks to constrain theory within the strict contours of an epistemology that serves to support the scientific aspirations of legal scholarship. This notion of theory as epistemology is in turn linked to environmental law’s overwhelming concern with controlling the relation between scholarship and action for the purpose of constituting itself as valid expert authority in the context of contemporary environmental discursive practices. Building on the critique of this view of theory as a pure research design element, the chapter articulates a different perspective, recovered from theoretical excess and inspired by the life and work of Michel Foucault, which merges the distinction between scholarship and action via the – correct – use of the metaphor of the ‘tool box’, often mishandled in Foucauldian scholarship. By reorienting this metaphor, the chapter argues that the contestation over the precise role of theory within environmental law relates to the historical evolution of the current role of the legal researcher who is expected to function solely as an expert on environmental change. The task of critical environmental law thus becomes to resist the assigned role within the established regime of environmental truth and to make novel and expansive contributions of the ‘tool box’ of environmental thought and practice.

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Ben Woodard

The following chapter argues that the term nature cannot easily be replaced by ecology and that numerous forms of contemporary philosophy attempt to abandon epistemology for a more ontological or materially focused approach. This shift away from epistemology leads to a knot of at least three interrelated problems: an overemphasis on a life-bound ethics that ignores biology; a tendency to gift subjectivity or thought upon other entities without adequate understanding; and lastly, an appeal to aesthetics as first philosophy without accounting for perspective. I address each of these problems and propose alternatives that collectively re-establish the need for a new epistemology to conduct ecological thinking.

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Francois Venter and Louis J Kotzé

As the world is sliding deeper into a profound global socio-ecological crisis, humanity must innovatively rethink ways to use its regulatory institutions, such as law, in an effort to mediate this crisis. To this end, convincing arguments are emerging in favour of constitutionalising environmental protection and the domestic and international legal and political systems that are aimed at environmental protection. Environmental constitutionalism has recently emerged as a term of art explicating juridically elevated environmental protection through constitutions. In this chapter we argue that, while an important paradigm in itself, environmental constitutionalism, both as a concept and framework in an analytical sense and as a normative programme, can greatly benefit from a comparative approach that would seek to enrich it. A comparative approach to environmental constitutionalism, including the methodologies that carry such a comparison, could augment environmental constitutional protection in specific countries and globally through trans-jurisdictional processes of cross-pollination. The chapter first reflects on the meaning and value of constitutionalism and constitutional comparison (section 2); moving on to explore in more detail environmental constitutionalism and its emergence (section 3). In section 4, we describe comparative environmental constitutionalism and provide a selection of considerations that could form part of the environmental constitutionalism comparatist's tertium comparationis. These considerations are generally representative of the (often overlapping) elements of the contemporary constitutional state and include: the rule of law, the separation of powers doctrine, judicial independence and review, constitutional supremacy, democracy, and rights. Throughout, we provide insights into the importance of environmental constitutionalism as a methodological approach.