JOINT IEL-ILT INTEREST GROUP AGORA PROPOSAL
The resilience of law
Crisis overwhelms law with its scale and scope, its complexity, and the irreducible uncertainty concerning its origins and trajectory. In a crisis, the categories through which law operates fail to contain a definition of a problem and its solution. The speed with which events unfold – or, in many cases, the suddenness with which the amplitude and seriousness of the crisis become discernible – outpace the deliberate speed of law. Crisis creates irreducible uncertainty: the resources of the law, rooted in experience garnered in the past, are difficult to muster for the purposes of projecting onto the future. Attempts to react rapidly and decisively through legal institutions can inflict lasting damage on those institutions as they are stretched beyond their limits or appropriated to ends to which they are ill suited. Due to the unpredictability that characterises crisis, focusing on features that could better equip law to face crisis – to promote the resilience of the legal system – may be a more fruitful approach than seeking to determine in advance how law should respond to crisis in substantive terms.
Since crisis emerges in complex systems, analysing the response of complex systems to stress and seeking to identify features of such systems able to absorb stress while maintaining a high degree of function is an appealing approach. In ecology, the concept ‘resilience’ has attracted attention: a resilient ecosystem possesses characteristics such as diversity, self-organisation, and the capacity to adapt. Resilience may prove crucial in the Anthropocene, presaging a state of permanent crisis in which delayed response leads to an accelerated rate of change as a result of negative feedback loops. This proposed panel aims to consider the relevance of the concept ‘resilience’ in theorising about international law, and to investigate properties and features of international law that either promote or compromise its resilience.
There are many features of international law that tend to diminish resilience. The states in the system are very diverse, but when it comes to the development of international law, the nature and form of states as a type of legal person entails them sharing very similar interests, and face often perverse incentives to respect one another’s sovereignty and to resist the crafting of international law that is too constraining. The level at which international law operates is often remote from the locales in which problems are experienced and solutions sought. International legal rules are slow to emerge, and lack flexibility, unless they are developed deep within regimes through opaque forms of law-making. The processes through which alleged violations of international law are addressed are difficult to activate, slow, and cumbersome, creating impediments to flows of information through the system, and reducing opportunities for learning and adaptation. These, in turn, compromise international law’s ability to address problems requiring global concerted action, and undermine its legitimacy as a political tool.
One attractive, but also potentially dangerous, means to increase international law’s resilience is through transnational networks of actors, including international organisations and private actors claiming or exercising authority in their own name or in that of the public. Such transnational networks have the potential to contribute to international law’s resilience in a variety of ways. They introduce both diversity and flexibility to the system; they can enhance flows of information; they are often nimbler and can act more rapidly than states; they can operate on a variety of levels within the system and across jurisdictional boundaries. However, transnational law has implications that require careful consideration. Private authorities have a very different relationship with their stakeholders than states with their citizens, with implications for the democratic grounding of international law. The heavy reliance of private authorities on incentive structures for the effectiveness of their governance activities implies an expansion of cognitive mechanisms in international law at the expense of normative ones. International organisations, by contrast, exist in an uneasy tension between upholding the cooperative objectives for which they have been established, and the legitimacy they must continue to curry with the states to which they are ultimately beholden.
This panel, therefore, seeks to encourage basic theorising about the concept of resilience in international law. What features does a resilient system possess and to what extent are these features present in international and transnational law? How can the flexibility and adaptability that resilience apparently requires be reconciled with the stability and predictability that law is meant to bestow? How does resilience map onto rule of law? What is the impact on international law’s resilience of the growth of specialised, managerial regimes? Under the broad concept, it is hoped to bring together specialised experts from various sub-disciplines into dialogue with broader generalist theorising about the nature of international law and the place of international lawyers within it.
Some of the key themes that stand to be developed include the structure and dynamic of transnational networks: the interaction between private and public bodies; implications for democracy (private authority, transnational authority, acceleration of the time of law); challenges to the rule of law; interactions between legal networks and other social networks (scientific, economic); potential adverse effects of economic incentives on the dynamics of legal networks of private authority; implications of a move from spatially differentiated and hierarchically structured systems of law to horizontal, transnational networks; and the shift from citizen to stakeholder, suggesting a decline in law’s normative pull and increased cognitivisation of law.
A selection committee will be composed of members of the coordinating committees of the international environmental law and international legal theory interest groups.
Please submit an abstract in Word or PDF of no more than 800 words to firstname.lastname@example.org. The following information must be provided with each abstract:
- The author’s name and affiliation
- The author’s CV, including a list of relevant publications
- The author’s contact details, including email address and phone number
- Whether the author is an ESIL member
- Whether the abstract should be considered for the ESIL Young Scholar Prize
The following selection criteria are drawn from the criteria for acceptance to the ESIL annual conference:
- Originality and innovativeness of the work
- Links to the conference theme
- Geographical and gender balance
- Only one abstract per author will be considered
Abstracts will be selected for inclusion in the IEL-ILT panel proposal on the additional basis of their alignment with the panel description and objectives.
The deadline for submission of abstracts is 10 January 2016. Applicants will be informed of the selection committee’s decision no later than 25 January 2015. The selection committee will submit a panel proposal to the ESIL conference organisers by 31 January 2016 and will have a response by 31 March 2016.
The Interest Groups are unable to provide funding for travel to and attendance at the conference. Please see the call for papers and the ESIL web site for information on finances and for other relevant information about the conference.
Tuesday, November 17, 2015
Call for Papers: The Resilience of Law
The International Environmental Law and International Legal Theory Interest Groups of the European Society of International Law have issued a call for papers for a panel proposal for ESIL's 12th Annual Conference, in Riga. Here's the call: