David Grant and Lyria Bennett Moses
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.
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that seeks to draw on ‘good law’ to achieve its political aims or to make law good where it is currently ‘failing’ or ‘out of date’, renders it difficult to attend closely to the question of method in relation to law and the animal.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.
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.