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Chapter 1 introduces the phenomenon of outsourced law, which is characterised by the imposition of goals, while leaving it to the addressees to devise the means by which these goals can be achieved. It is argued that the kind of regulation that is developed in this way should not be regarded as separate from formal law. Law and regulation are different and interconnected styles of guiding human behaviour. In order to analyse and contrast these styles a philosophical perspective is called for. Law and regulation should be studied as normative orders with a dynamic of their own; they are not just steering instruments. Outsourced law will be studied by analysing the types of rules that are produced as well as the way people actually use these products, by analysing underlying aspirations and by examining the many intended or unintended changes that are brought about by the adoption of that style.
Law’s paradigmatic subject has been criticized, especially by feminist theorists, as being relatively invulnerable, complexly disembodied, rationalistic and separative. This is a subject at a constructed ‘centre’ for whom living materiality – even the human body itself – is merely an extended, object-ified periphery – and for whom epistemological mastery and a scopophilic view ‘from nowhere’ reflects a relentlessly assumed ontological priority. Against the impugned Cartesian and Kantian assumptions underlying traditional liberal legal subjectivity, and its subject-object relations, this chapter explores the theoretical gains offered by foregrounding, in place of the ‘autonomous liberal subject’, the notion of vulnerable, embodied eco-subjectivities explicitly interwoven within a vulnerable ecology. What implications could or should such a theoretical approach have for environmental law and processes? What might replace the binary subject-object relations assumed by the autonomous liberal subject, and what kind of juridical imaginary might be instituted by foregrounding the openness and affectability of vulnerability?
In recent years, actor-network theory (ANT), and the work of Bruno Latour in particular, have gained significant interest amongst legal scholars. This approach, derived from Science and Technology Studies (STS) and bearing various links with anthropology and ethnographic methods, has enabled new insights to emerge in relation to the ways in which law operates in everyday practices. The innovative position the approach suggests has been largely based on the breaking down of the dichotomy between nature and society, humans and non-humans, and in turn on an emphasis on the importance of materiality in social practices (and its complexity). In his early work, Bruno Latour therefore laid out the foundations of what was to become a radical rethink of sociological assumptions, by challenging the extent to which humanity can ever be imagined as being fundamentally separate from nature. Consequently, he argued that some of the most fundamental assumptions of modernity, about how knowledge is made, societies are built, and humans can relate to their environment, are mistaken and in need of revisiting. Given its deep engagement with our relationship with nature, and its grounding in the sociology of science, it is somehow surprising that ANT has not been more frequently explored in environmental law – in spite of a few examples. However, more resources are available to those wanting to imagine what an ‘ANT approach to environmental law’ may look like, if engaging with STS and the anthropology of science literature that has in recent years aimed to unpack some of the legal stories that surround environmental practices. In this chapter, I seek to bring together some of this scholarship to reflect on what ANT can bring to environmental law research. The chapter is illustrated specifically with the example of the use of natural resources for industrial purposes, and the long-standing debates on ‘biopiracy’ that have animated much legal debate since the 1990s. Through this example, I retrace the difficulty for modern environmental law to engage with practices that challenge the boundaries between nature and humanity, and the dichotomies on which law has so far operated. I explore how studies that have embraced some of the more radical claims of ANT and STS, and engaged ethnographic analyses of social practices, have illustrated how law often fails to seize the messiness of the entanglement of nature and society. I conclude by discussing how ANT, and the work of Bruno Latour, can be used more broadly by environmental lawyers seeking to reimagine the ways in which law relates to nature.
Jan M. Broekman and Frank Fleerackers
‘Thoughts Backing Speech’ underlines that law depends on specific speech acts. One cannot say anything at random in law and about written laws. That is not only the case in law and a lawyer’s profession, but also at peripheries of legal discourse, in a conversation on the street or other public spaces. That theme is disregarded in semiotic studies. Legal meaning-making, which does not take place within the profession, is difficult to trace. Our understanding of law as a citizen is, on the contrary, to a large extent determined by what is talked about, accepted or rejected, thought or neglected beyond the domain of valid law. Thoughts that back this type of speech confront us with major components of law’s discourse such as our evidence of thinking and judging when we discuss law in public. They also regard interactivity and interaction as constitutive in law practices. What unfolds outside the legal profession is often linked to concepts such as ‘nature’ and ‘natural’. ‘Legal consciousness’ is therefore reconsidered. The sign character of laws and their meaning reintroduce the semiotic relevance of human expressivity, of our understanding the multilingual character of reality in law, and of the basics of human rights – altogether issues that constitute every legal conversation anywhere. Keywords Street, Periphery of law, Interactivity, Interaction, Legal consciousness, Human rights, Multilingual realities