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Introduction

A Handbook

Andreas Philippopoulos-Mihalopoulos and Victoria Brooks

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Anna Grear

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?

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Emilie Cloatre

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.

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Table of legislation

A Handbook on New Methods of Law Making in Private Law

Edited by Roger Brownsword, Rob A.J. van Gestel and Hans-W. Micklitz

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Table of cases

A Handbook on New Methods of Law Making in Private Law

Edited by Roger Brownsword, Rob A.J. van Gestel and Hans-W. Micklitz

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Introduction – contract and regulation: changing paradigms

A Handbook on New Methods of Law Making in Private Law

Roger Brownsword, Rob A. J. van Gestel and Hans-W. Micklitz

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Marie-Claire Menting

Industry codes of conduct increasingly play a role in regulating B2B and B2C relationships and have, as such, become part of the contractual regulatory space. Nonetheless, the relationship between these codes and contract law as the traditional way of regulating private relationships still remains opaque. This chapter sheds some light on the relation between industry codes and contract law by addressing one of the questions that the regulatory role of these codes raises: is there a need for a framework for industry codes in contract law? Building on an analysis of the practice of industry codes, their interaction with the traditional foundations of contract law and a number of Dutch contract law cases involving industry codes, it is argued that contract law itself already includes leads to overcome the conceptual challenges that industry codes pose and to give further shape to the relationship between these codes and contract law. Keywords: industry codes of conduct, foundations of contract law, regulation, B2B and B2C relationships

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Bengt Lindell

The Swedish Academy Glossary (SAOL) does not list a definition for the term ‘overall assessment’. However, the term ‘overall assessment’ refers to a number of factors, aspects or perspectives that are brought together into a comprehensive assessment, an overall assessment. In this book, the word has a more specific meaning. An overall assessment means that a choice must be made between several possible decision options using certain criteria in order to achieve one or more objectives. This definition addresses both the meaning and the purpose of an overall assessment. Virtually everyone makes overall assessments on a daily basis. This might involve big, important things like purchasing a home: What is our price range? What city/neighbourhood? Running costs (taxes, maintenance, utilities)? Proximity to daycare, school and work? Renovation needs? And so on. Or the assessment might involve where the family should go on holiday. There are a few options (e.g., Spain, Bulgaria or Italy) and a number of selection criteria such as cost, climate and how child-friendly it is. Another example is buying a new car, which will be explored in detail later on. Even in such cases, there are several different options to consider when evaluating the different car models, which have different prices, different environmental performance, different collision safety and comfort levels, and so on.

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Bård A. Andreassen, Hans-Otto Sano and Siobhán McInerney-Lankford

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Geoffrey Samuel