Fragmented Law - From Unitary to Pluralistic Legal Systems
A Socio-Legal Perspective of Post-National Legal Systems*
Inger-Johanne Sand
Department of Public and International Law and ARENA, University of Oslo
Theme
The forms of political organization and governance as well as their social preconditions have undergone vast changes during the last two hundred years. Still however law and politics are both as instruments and as communicative forms and institutions at the centre of our conceptions of governance. Many of the concepts and the institutions of the very early forms of parliamentary democracy and rule-of-law states are still used for descriptive as well as normative purposes. The nation-state as sovereign actor is still also a vital part of our conception of governance. The social and economic surroundings and thus the preconditions of governance have however changed - over time. One of the arguments of this article is that these changes necessitate a wider perspective on what governance and law are, and thus also what the role of law is as part of that governance. It will be suggested that both the production of knowledge and technology and the increased globalization of markets have over time changed the preconditions and thus the functions and the nature of law and politics. These more factual changes have again led to an increase in the uses of international, supranational or regional forms of political and legal organization. Legal regulations have somehow become more multifaceted and many-levelled. Still however ideas of the unity and the sovereignty of nation states prevail. These changed preconditions of law and the more multifaceted forms of legal regulation have thus so far very insufficiently been understood and integrated into our concepts and understandings of law and politics.
It will also be suggested that the ideas of a unity of law are incompatible with these changes. Democratization, the increased role of discourses of knowledge, globalization of markets and the many-layered structures of political and legal organization which are emerging, are all factors which tend to lead to increased differentiation, pluralization and fragmentation of the legal systems. Two aspects of these processes will be focused in this paper: The first is in the interplay between the different, parallell, overlapping and competing legal competences of the different organizational levels. How can these changes in the long run be compatible with the dogmas of the unity and the sovereignty of the nation state? The second aspect discussed here will be the increasing power of new, globalizing technologies and expert systems - vis-a-vis the the institutional forms of power of law and politics. The constitutional fragmentation as well as the increased significance of discourses of knowledge for the formations of law may lead to dramatic changes in the application of vital principles of law such as justice, equality, reciprocity etc.
EC and EEA law should be primary examples of such changes of the legal system.
Sovereignty, right and political organisation as presuppositions for the unity of the nation state
The two systems of law and politics and their institutions have been significant elements in the general systems of communication in modern societies. [1] As such systems of communication have carried social risk and legitimacy by way of their procedures as well as their substantial elements. The two systems have for the last two hundred years been institutionalized primarily within or on the basis of the nation state and their sovereignty. They have thus been based on the unity and the power expressed by the sovereignty of the nation-state and its politico-juridical institutions. The two systems of law and politics have thus contributed to specific forms of communicative as well as social coherence across the existing and varied forms of the functional differentiation of modern societies within the framework of nation states.
For centuries preceding the break-through of parliamentary democracy sovereignty - often in the forms of nation-state monarchies - had been a dominant form of power. [2] The concept of sovereignty of the nation states was then continued and transformed from the eras of national monarchies and feudal states into the era of parliamentary democracies by the use of the instruments of right. Law was thus used to transform the forms of sovereignty and political organization into parliamentary democracy, with its preconditions and potentials of pluralism, and into the differentiated forms of governance which are found in the parliamentary, executive and judicial institutions albeit still based on the sovereignty and the unity of the nation states. The national parliamentary democracies have thus on the one side been a continuation of the unity which is somehow presupposed in sovereignty, and on the other hand a transformation into an unavoidably pluralistic political regime with the potential of unsettling that unity.
As a mutually dependent precondition and as inherent parts of the same social and political processes the constitutional and ideological concepts of the freedom of the individual were conceived. Sovereignty and law(right) have thus continued to be vital institutionforming elements of society, but used under different social conditions and on dramatically different forms of social and political organization. With the introduction of parliamentary democracy political power was institutionalized in forms with a great potential of pluralization and fragmentation - as opposed to the traditional unity of the former monarchies. These forms of political power were then further challenged by the new factual changes of technology and knowledge even furthering the tendencies of pluralism and fragmentation.
Politics and law have been the juxtaposed systems of communication in the spheres of governance of democratic and also sovereign states. Politics has been the democratic and freely communicative system oriented both towards the various interests and actors of society seeking power and towards the common construction governance and the state. Law has been the closed form of communication - stabilizing politics through legislation and various forms of rights. Law and politics thus presuppose and are mutually dependent on each other. They are both based on the concepts and institutions of right and sovereignty, but at the same time they embody and hels enable the potentials of fragmentations and of pluralism in open and parliamentary democracies.
Sovereignty and disciplines, or law, politics and science.
Constitutional, institutional and political theories have traditionally focused on the specific arenas which they primarily study. Within the scope of these theories law and politics take place within institutions, and the focus is on these arenas as the primary communicative powers of society. The theme of this paper is to discuss whether the perspective and the scope of these theories are sufficient to grasp the processes of law and politics today and the evolution of these and other forms of social power in general. Sociological and epistemological theories have provided approaches which may give some more comprehensive views on these processes. Foucault writes of sovereignty and disciplines as the two primary forms of social power, and how they are heterogeneous and incompatible, but also interactive. [3] His theory is however that the new forms of disciplines or knowledge are invading the area of law and its institutions and forms and thus changing them. Luhmann’s theories of social differentiation describe society as constituted by several and different systems of communication such as law, politics and science. [4] These have different codes and rationalities and thus function in systematically different ways. A vital key to the understanding of modern societies lies in the analysis of the interactions and mutual dependencies of these systems. Latour discusses society as consisting of three different paradigms of communication: - science (nature), politics (society), and deconstruction (understanding). [5] He insist in the necessity of transforming the narrow form of a political and legal Constitution into a Constitution embracing all these forms of communication.
A vital question arising from these theories is how a new form of public right may evolve from the edifice of right and law and from the influences of the new disciplines and the discourses of knowledge. [6] At the end of this paper I will return more specificly to these theories, and how they have inspired a more multi-faceted understanding of law and politics. It is my view that neither law nor politics are given and stabilized systems. They are communicative systems characterized by their different rationalities. Luhmann characterizes them as normatively closed by their codes, but cognitively open and thus open to influences by their changing environments. By way of the cognitive openness and the external influences the codes and the normative aspects of the systems will however also tend to change because they will be regulating new and different cognitive srtructures.
What are the specific qualities of the EU/EC/EEA legal systems?
Many of the characteristics of the legal system of the EU are parallell to contemporary changes in the national legal systems and in their other international alliances, but being a legal system in a more emerging state some of these changes come through clearer in the EU system. This is also a legal system which is emerging on the borderlines between national and supranational institutions, and as a result of interactions between these, and which thus will have some specific characteristics. This quite particular situation of emerging may induce a situation of institutional actors which are on the one side balancing each other, and on the other side relating to each other in rather unpredictable and contingent ways.
There are two main aspects which have been vital in the emergence and the production of the EU legal system. First: it has been very incrementally produced in a very uneven and often unclear process among different nation states and the supranational institutions of the EC/EU. This process has also been influenced by an uneven and intransparent interaction between the systems of communication of law, politics, administration and economics. Secondly: it is has not been conceived of as a comprehensive legal system from the start and is thus heavily influenced by its more or less chosen objects or areas of regulation. These areas can be summed up in this way: A) The legal construction of a competitive market has up till now been the foremost task of this legal system. Being the first and primary goal this has heavily influenced also how other regulative areas have been integrated into the legal system. In this area there is a close connection between economic ideologies and legal regulative forms. B) Increasingly areas concerning the environment and the working environment have been included in the EC regulation. These areas and also areas of product regulation (in the market) are however heavily influenced by discourses created in expert-systems or -environments, e.g. the evaluations of polluters, genetically modified organisms, artificial foodstuffs etc. Regulation via expert-systems and scientific knowledge also includes the regulation of telecommunications and mass-media. In this area there is a strong and rather intransparent interaction between the political and the scientific or disciplinary forms of communication and thus of the execution of social power in these areas. C) Human rights have been a contested and unclear area in the shades of EC/EU regulation. The EC/EU have not as such signed the European Council’s Declaration of Human Rights, but it is referred to in the Treaty and its institutions have referred to the member states’ signing of it. The EC/EU authorities have thus in very general and vague forms included these rights in their legal conceptions and argumentations. The references to human rights in EC/EU documents are influenced by the vagueness of the constitutionality of the organizations. ( D) A possible consequence of this type of formation of a legal system might be that the social and welfare rights typical of the nation states come under pressure because they do not fit into the categories of markets and workplaces, and because there is a potential conflict between these rights and the pressures on national budgets following the implementation of the principles of free competition.)
What combines the three elements of law mentioned above, pt. A) to C), is their international character. They all concern discourses which have been constructed as supra- or international. «The market» is increasingly being constructed as an international structure, first factually by the increasing international trade, also in finance, and the number av multinational corporations and then also legally by several treaties, most eminently WTO and the EC, on the regional level. The competitive market has legally become an internationalized structure in many cases surpassing and having supremacy before national legal structures. The technologies of telecommunications and informationtechnology are by nature international. They embody the internationalized infrastructure of communications. They have thus contributed to inducing an internationalized and marketoriented regulation of all forms of communication. The environment is global by nature. The consequences of the different forms of pollution, particularly climate changes and air pollution, are not limited to specific territories. The expert systems surveilling environment and pollution (or creating new threats to the environment) are scientific and also internationalized discourses. The legal regulation of the environment and of the expert systems have thus evolved a rather strong international tendency. Human rights have been created as an international legal discourse.
Summing up: First: Legal regulation today does increasingly consist of parallell and overlapping schemes of regulation on national, supranational and international organizational levels. This will introduce modes of reflexivity between the organizational levels, and it will enhance competition between the different levels and also uncertainty and fragmentation. Secondly: Vital elements of legal regulation are today internationalized, partly because social structures have been factually internationalized and partly because economic, scientific and legal international discourses have been created.
The analysis of the legal system of the EC/EU should take the above mentioned characteristics into consideration and not purely analyze it as any given unitary and comprehensive legal system.
The vague and flexible constitutionalism of the EC/EU
The European Communities and later the Union have emerged as treaties and as institutions in a step-by-step and an uneven way. The EC and the EU have been created by sovereign nation states first as international and then as supranational entities, but this has happened in a rather vague and incremental way.
The supranational elements have emerged as much from judicial decisions as from purely political. They have not been squarely declared from the political institutions in charge. The supranationality may be described as having been produced from very interdependent, but also quite fragmented and intransparent processes between the legal and the political forms of communications and their institutional actors. The political actors have made the main decisions of the treaties, but often in the form of general or vague goals and formulated as compromises. It has thus been up to administrative and judicial authorities to specify and to implement the goals and the compromises. In this kind of step by step manner some kind of constitution has incrementally been produced.
The nation-states which have somehow created the EC and the EU have traditionally had full sovereignty over their respective territories and comprehensive and unitary competences concerning legislation. The EC /EU have not been endowed with the same type of sovereignty and comprehensive powers of legislation. The European level organizations are also not conceived of as sovereign or as unitary. The constitution which is emerging on the European level is created by different sovereign nation states in collaboration with the institutions created on the European level. The Council of the EC is also an institution which is very much a mixture of the powers of the participating member states and the «collective» powers created in the Council and by the preparations by the Commission. The political processes of the Council are both produced by the member states and their representatives and by the same actors as part of the European level collective institutions. The Council, the COREPER and their surrounding committees are thus very much mixed level organizations, and not purely national or supranational. As such it would not be fitting to use the concept of sovereignty on the Council because it implies more coherent, encompassing and unitary powers. This would also, in my opinion, apply for the European Council even if it also must be said to be some kind of constitutional body. It is still the member state representatives sitting at the table, and compromises, also between national interests, are very much the order of the day.
In most areas of governance and of legislation the member states and the EC/EU institutions will have parallell activities and in many areas also parallell competences. Preparatory work will always take place at both national and European levels. There will thus be parallell, supplementing and competing preparations for the legislation being done at the European and the national levels, as well as by the different institutions at each level.
Legislative and other main political functions are thus now being carried out in parallell within several institutions at both the national and the European levels. These institutions will both be supplementing and competing with each other. They will also be interpreting each other and will thus become reflexive vis-a-vis each other. The interplay of the different interpretations by the different member states and institutions will play a significant role in the emergence of the constitutional elements and in the defining of the boundaries of the competences.
On both levels there will also be several types of institutions involved: - administrative, - expert, - political and - judicial bodies. These will also be supplementing, interacting and competing with each other. Within these different institutions and functions there will also be supplementing informal and formal work and procedures. Within different areas there will thus be different trajectories of participating institutions. Legislation does not follow one path, but several. The map of legislative procedures will consist of several both main roads and paths crossing each other. Legislation has become multifaceted and fragmented.
The competences of the EC/EU have never been totally comprehensive. They have been formulated in general ways in each area, but they have been enumerated. The EC/EU institutions have however practiced their competences in ways which have been quite expansive vis-a-vis the formal limitations of the treaties. This applies for example to the uses of art.235, and what has been deemed as «necessary» for the fullfilling of the treaty. By way of the uses of art.235 the EC institutions have claimed significant flexibility concerning the boundaries of their competencies and thus also their constitutional elements. The interaction between the political and the judicial institutions has also resulted in an expansive and flexible constitutional approach.New competencies have also emerged as very incremental and intransparent processes in a mixed interaction between the administrative, the judicial and the political institutions. This does however not mean that the competences of the EC/EU are free and encompassing and may be extended at any desired point. Many of the new and formal extensions of the competencies of the treaties are carefully negotiated at the political levels. The complex interplay of the different institutions as well as the often general character of the competencies do however mean that is only by their realization that we may see how they really function.
The EC and the EU have legal supremacy over the member states in several areas and may thus be said to have constitutional elements. At the same time this supremacy has been negotiated by the same member states and is dependent on them for their emergence as well as their practice. Vital elements of the supremacy have however also emerged in the complex interplay between the institutions which have been established on the supranational level, but in a rather incremental and fragmented way. Not only the formal decisions but also the practices of the institutions are significant here. It could thus be said that the constitutional elements of the EC and the EU are constantly being negotiated both in the formal and in the more informal practices between the different member states and the institutions involved.
There is an interplay between the institutions of the member states and those of the EC/EU that are different from most other international legal institutional arrangements because of the combination of sovereign nation states and supranational powers of the EC/EU. The combination of the national and the supranational institutions deliver a picture of combined and competing competences always in the process of changing and always with some open and unanswered questions. Some of the answers given may also be uncertain and still part of ongoing processes or conflicts. If the member states are described as still sovereign and unified, then this picture must at least be combined with descriptions of interplay with parallell and competing competences of the supranational institutions and of this interplay as unfinished and open.
The large and heterogeneous area of Europe and the historical and institutionalized character of the member states have contributed to a high degree of complexity and of contingency in the emergence and the practices of the constitutional elements of the European organizations. The significant role of the interplay between the political, judicial and administrative institutions have also added to this complexity. The constitutional elements of the EC/EU are thus also more fragmented, unfinished and in-process than those of the nation states. The concept of sovereignty is more difficult to use in the European than in the national contexts, it is rather a case of negotiated, fragmented and enumerated competences and of institutions competing of supremacy. One could say that the relative stability and unity of sovereignty of the nation states is being replaced by continuous processes of negotiations and fragmentations of competences and of power in multi-level structures of governance. National and supranational, legal, administrative and political institutions are competing for power. Most boundaries of institutions are uncertain and in processes of change.
The legal construction of a market
The primary general objective of the legal regulation of the EC has up till now been the construction of a free market and the prohibition of any restrictions to trade within the specified area. This was not a project with general regulatory aims, but with specificly economic. The economic aims were also in line with a specific economic ideology of economic liberalism. The principles of this ideology are to give a very strong priority to free trade at the cost of other societal considerations. This has meant very strong restrictions against the uses of state subsidies and state monopolies. In such a case legislation is about the formulation of principles and standards according to which the general policy is to be implemented. This includes the positive goals as well as the negative restrictions. In this way a legal structure is constructed. The legal construction of a market will thematize the relationship between the state and the public authorities in general, the private market forces and other societal considerations. In the case of the EC and the SEA much emphasis has been put on defining the free market in a relatively instrumental and technocratic way. Exceptions are scarce and not easily argued. In this form «the free market»-format may resemble the forms of regulations in the expert systems dealt with below.
The regulation of science, knowledge and expertsystems
Increasingly many of the fields of our daily lives are dependent on and intensely permeated by highly specialized technology or other forms of knowledge-based elements. This also includes the areas regulated by the market structures of the EC. An increasing part of the EC regulations do thus concern themes or issues where highly specialized knowledge or technology are predominant elements or inevitable preconditions. What started out as the regulation of a market structure has increasingly turned into a regulation of expertbased systems relating in different ways to the market or productive sectors:
- environmental regulations posing limits to the markets and protections for the users, including the uses of chemicals, foodstuffs additives, genmodified organisms and other forms of pollutions, in short: risk society,
- areas where specialized technology as such is the embodied theme, (telecommunications, informations technology etc.),
- areas of social regulation which a market regulation to some extent must confront, such as consumer rights and elements of the working environment,
- other forms of limits to competition based on civil society considerations, such as the protection of rights of information, intellectual property, mass media ownership etc.
Substantial parts of the EU directives issued now concern these and related areas.
Regulations of all these areas are (1) either parts of the markets directly or they are essential forms of boundaries, margins or side-effects of the legal and economic construction of the markets (product-regulations and evaluations of restrictions to competition). Market interests may thus influence them. They also (2) involve or necessitate the uses of specialized knowledge or technology. This should be obvious in the cases of pollution control, foodstuffs additives, genetically modified organisms, telecommunications etc. Specialized knowledge will however also be vital preconditions in consumer regulations, mass media ownership regulations etc. They are thus more or less dependent on discourses and conflicts among experts. All regulatory areas mentioned here are also (3) vital parts of our daily lives, directly or indirectly, such as food, air, water, communications etc. We cannot escape their consequences. These areas are also (4) quite decisive of our futures, and some of them have in them the possibilities of large scale, but also very uncertain consequences, positive or negative. They are core parts of what is called risk society.
The combination of these characteristics do make these areas and their regulations both vital and strategic for the lives we lead as individuals and collectives and at the same time significant battle grounds for professional, market, political and civil society actors and their perspectives, interests and concerns. Decisions made and practices followed are significant. The procedures of both the regulations themselves and the practices of them may thus often be vital for the outcomes. They may also vary depending on the areas and the situations. What does not vary however is the fact that the shaping of the vital preconditions and often the vital infrastructures of these areas are done within specialized and professional environments. Themes such as the uses of genetically modified organisms and the uses of additives in foodstuffs are in a way totally created by scientific communities. They have not originally come about on the grounds of political or consumer demand. Complete knowledge or understanding of the areas may also demand very specialized knowledge.
Whole areas are thus constructed by scientific communities. It must be presumed that essential parts of these areas have evolved from scientific rationalities and dynamics, and not from any social demands or political decisions. The scientific or technological character of the premises, the dynamics and also of the details of these areas make them systemic within their own rationalities and quite resistant to external influences. These areas have had their own internal dynamics and evolutions defining their contents and their boundaries. They are thus quite resistant to political governance and legal control. The scientific communities have considerable factual autonomy and will often continue their work irrespective of political decisions. Innovations made will often functions as pressures towards the political and the legal communities to use and to legalize them.
Some social problems may be alleviated by new inventions, but new scenarios of social problems and new types of risk situations are also created, often without the actors having the social background or the resources necessary for dealing with them. Risks and dangers have always existed, but with the evolving of very highly specialized knowledge and technology there have emerged fields with humanly constructed risks with the combination of a low probability of accidents, but immense negative consequences if they do happen. Both the probabilities and the consequences are also evaluated with much uncertainty even on a scientific basis. The uncertainties of the risk and consequence evaluations and the risks inherently involved in these areas make these issues difficult if not unreachable for effective legal and political regulations. Outside actors can hardly have any certain knowledge in these areas. The authorities will then be left to regulate on the basis of uncertain risk evaluations which will spill their uncertainty over on the uses of risk or tolerance levels, precautionary principles and preventive actions.
These scientific communities are more or less international in their character. Irrespective of the forms of legal regulations the scientific elements themselves will often seek international contacts or environments in order to evolve further. From the regulative points of view international collaboration on the scientific levels may often be advantageous because this may function as a check on the different national interests and their influences on regulation as well as being a quality check on the national scientific environments. It may however also strengthen the scientific communities and lead to increasingly expansive research and thus to potentially more risk-oriented innovations. Increased internationalization may speed up resarch and innovation, but may also lead to a competititon in the uses of it. This may make it more difficult to stop or limit risky innovations.
Some of the technological innovations will also be under pressure to be exploited by market interests. This is particularly seen in the areas of telecommunications, genetically modified organisms, novel foods etc.
Thus an essential part of what can be conceived of as the legislative and the political area of the EC is now dominated by science or knowledgebased discourses and their dynamics. That is: by disciplines. These are international in their character. They are part of the apparatuses of knowledge and have dynamics and rationalities quite different from those of politics and law/right. Their internal dynamics and rationalities are not at all related to the classical forms and principles of traditional law, such as equality, justice, balancing of interests etc.
New forms of public right: Disciplines, environmental regulation and the law
Legal regulation in modern societies has been edified around certain principles, institutions and figures of legal discourse. Sovereignty, the nation state, democracy, the limited state as in rule-of-law and the free individual have been central institutional and normative elements. In public law the juxtaposition of the limited rule-of-law state and the free individual are a basic part of its normative pattern. From these institutions principles such as justice, equality and the justifiable balancing of interests have evolved. Legal regulation must be formulated and practiced so as to enable the ensurance of keeping the expectations for the public, however on a normative and contrafactual basis. Legal regulations have had the form of texts to be subsumed under facts in a recognizable «if.....then»-form. The balancing of different considerations and interests according to specific norms and to ideals of equality and justice so that expectations are ensured, are essential in the edifice of law.
The vital question would then be: How then is legal regulation of what has been called expert systems, knowledgebased systems or disciplines which are deemed to be ungovernable, specialized, futureoriented and operating within their own dynamics, patterned and constructed?
In the regulation of the disciplines, the expert systems and the technological areas which are currently vital, the social and institutional configurations are most often quite different from other areas which have been regulated by law and politics. The institutional and legal configurations of individual rights and a rule-of-law state are not necessarily the most appropriate in these areas, and this is not a normative evaluation, but more a factual observation pointing to some problems. The environmental, the genetical, the telecommunications and other knowledgebased research areas may be characterized as:
- scientific and systemic in their forms of communication with a high degree of autonomy in their dynamics and rationalities, and thus relatively closed to normative (legal) and social regulators,
- disembedded from stable social institutions and relations, and thus from many forms of social control,
- dynamic and futureoriented with a high degree of unpredictability as to further inventions, producing significant changes at high speeds thus creating a future orientation,
- often operating with much uncertainty as to consequences and evaluations of consequences, in some areas the risks may be significant, but also uncertain,
- international and cognitively open in their social and communicational structures, and without clear geographical borders,
- without specific and institutionally limited actors, and thus with problems of control and accountability, and with a lack of transparency.
In organizations where the production of technology and knowledge are the basic dynamics these processes will have a significant autonomy and self-drive. Their processes will also be collective rather than individual. They are cognitive, not normative. They will be trial-and-error and future oriented. They will not be dependent on political decisions and their legal implementations, but on the very processes of knowledge and technology themselves. These processes do not have the boundaries of the limited state and of accountability. Individuals do not have rights vis-a-vis a future knowledge production. Questions of torts when mistakes are done are also quite complex matters.
In these spheres the rights of the individuals are less interesting than how the systems normally function, the past is less interesting than the future, the balancing of interests becomes quite difficult when there is so much uncertainty as to what the interests and their consequences really contain. It seems evident that the social and communicational configuration of the areas dominated by the production of knowledge and technology must have consequences also for the possible forms of effective legal regulation.
Some of the new technologies have been adapted rather directly in the new regulations, for example telecommunications and open networks. These represent technology which are almost ungovernable because of their technical qualities and possibilities and thus just «have to be accepted». Regulatory problems which are discussed here concern particular problems like limits to ownership of mass media in order to protect the freedom of expression and pluralism in the media. In view of all the forthcoming technological innovations with the multiplicity, and seemingly uncontrollability, of transmission possibilities via telephones, cables, satelites etc. these regulatory issues have however also turned out to be quite formidable problems.
In the environmental area new principles and forms of legal regulation have been or are in the process of being developped in the EC regulations as well as in many nation states. A substantial amount of environmental regulation is done under the SMP and under art.100A and 130 R and S. Some of the basic characteristics of these new forms or attempts of regulation are:
1) Environmental regulation is often done «in the shade of the market». Differential treatment by the different nation states is often restricted because it might be incompatible with a common and free market. The market as a legal and economic structure may thus somehow come to «protect» the unrestricted uses and evolutions of experts systems. New technologies thus tend to become legally protected by the market structure.
2) Scientific expertise is used by the governments and the Commission to deliver the vital and often decisive premises to the regulatory fields. The scientific communities have substantial autonomy in their activities. Both in legal and in political processes there is much emphasis on what is regarded as «scientificly» valid or sound, and the scientific communities alone can decide this. Discourses evolved by these communities will thus often have a defining and structuring effect on the regulatory activities. Administrative and political authorities may censure the scientific discourses by the uses of precautionary principles etc, but not on a scientific and thus on a political and often unavoidably contingent basis. The politicians cannot interpenetrate these fields in a substantial manner, other than using the means of total restriction or principles of precaution.
3) The «solution» has been to develop new forms of procedural regulation with the combined use of some standards:
- delegations to expert committees on setting the levels of risks and of tolerance,
- principles of precaution, which may be stricter than the scientifically accepted risks,
- delegations to the private parties to regulate themselves, e.g. internal «environmental impact assessments» (EIA), «internal environmental auditing» etc.,
- other forms of level-settings such as «best available technology», or extended forms of procedural regulations such as «fight risk at source»,
- delegations to committees with mixed expert, administrative or political representation where scientific standards and principles of precaution may be combined.
4) Traditional legal figures of regulation such as the balancing of considerations with the view to justice, equality or other ideals seem difficult often impossible to use beause of the uncertainities and the risks of these fields.
5) The legislative procedures in these areas are quite complex involving interactions between many different actors and institutions in non-linear, intransparent, often unpredictable and varied forms. The procedures will consist of interactions between independent expert environments, expert committees appointed by authorities, administrative institutions and committees and political authorites - all on both national and supranational levels. Lobbying private organizations may also play important, but often intransparent roles. It may vary from area to area who are the most structuring and powerful actors, and where the most decisive actions are taken. The formal procedural regulations which exist are also often both complex and contested. There are conflicts among the authoritative institutions concerning the interpretations of arts. 36, 100 A nr.4, 130 R, 235 and many more. Many of these conflicts concern quite vital questions, for example the definitions of «unduly restricting competition», «necessary.....to the protection of the environment», etc.
So far it seems that these forms of regulation are closer to the disciplines and their rationalities, than to the edifices of sovereignty and right. The dependence on the experts in these processes are formidable. It could also be argued that we see the emerging of a new public right based on procedural and reflective principles: - precautionary principles, - internal regulations, - the combinations of expert, administrative and political regulatory institutions, - rules of evidence, etc.
The lesson here seems to be that the primary dynamics are within the scientific discourses wherever they are included and not primarily within political and legal institutions attempting ot regulate. The need will thus be to analyze the knowledgebased discourses, and not their institutions - in order to understand how these processes really function.
Theoretical aspects: Sovereignty, right, disciplines, knowledge and power
Foucault has made an analysis of forms of power in modern societies where he defines «a right of sovereignty» and «mechanisms of disciplines» as the two main forms which limit the arena in which power is exercised. [7] Right of sovereignty are expressed by the politico-juridical institutions whereas the disciplines are expressions of the discourses of knowledge. The politico-juridical system is thus a continuation of the previous forms of sovereignty. Sovereignty implies a totalizing form of governance, coming from a centre and encompassing the whole of society. Democratization of sovereignty implies however a potential of pluralism and fragmentation. Sovereignty has been democratized by the uses of parliaments, legislation, state apparatuses and the emergence of a «public right». Sovereignty in this form is still however considered general, forming a unity within each nation state and directed at encompassing the whole social body. Politics and law are then the two main communicative forms of public right. In the seventeenth and the eighteenth century however new forms of power emerged in the form of disciplines, as the term used by Foucault goes. Disciplines have two main aspects which are emphasized in different ways by different writers. First they are discourses based on knowledge. Secondly they may also emerge as discourses in the form of technical apparatuses used for purposes of surveillance, such as penal systems, asylums, schools etc. As forms of discourses entirely different from sovereignty the discourses of science, knowledge or disciplines have evolved over time - and increasingly contributing to our forms of communication within the different social spheres and now also increasingly to the forms of governance. The discourses of right and those of disciplines are heterogeneous, even incompatible. They concern totally different forms of communication and of understanding. [8] Foucault does however argue that the theory of sovereignty and the institutions of right have persisted and have been transformed in such a way as to be superimposed on and thus combined with mechanisms of discipline. The new forms of a public right have however contributed to concealing some of the vital elements and the real nature of the disciplines, meaning their suppressive qualities. In Foucault’s words the two forms of power and dominance: sovereignty in the form of rights and disciplines, have been combined in the new forms of public right in ways which conceal the real procedures of the disciplines and thus hindering our possibilities of discovering their nature.
Foucault maintains that there is no solution in the continued combination of the traditional forms of right and sovereignty with those of the disciplines. New forms of a public right must be developped - which are liberated from sovereignty.
It is particularly Foucault who has developped the term disciplines as encompassing both the aspect of knowledge and of surveillance. Other writers have used different, but similar terms of the same forms of power, but emphasizing the knowledge element of the discourses. Terms such as socialization or institutionalization or just discourses have been used to define particularly systemic, systematicized and bounded forms of communication - instead of the much stronger and also somewhat different term of «surveillance». [9] What is common in many of these theories is the emphasis on communication that is knowledgebased in systematic ways and which is socially constructed as discourses. A main point in Foucault’s theories is however the juxtaposition of sovereignty based on right and disciplines as the two dominant, but also heterogeneous and incompatible forms of power in modern societies.The basic theme is then how these forms have been combined, and how these combinations may continue to change depending on the forms of sovereignty and the disciplines.
LaTour engages in a similar discussion of the relationship between science, politics and deconstruction. He points to the fact that constitutions have been limited to the spheres of politics and have left out the spheres of the sciences and of understanding, or the «hybrids», which all have power. [10] He regards it as a task of priority to construct a Constitution encompassing all these three forms of communication and structures of human relations.
Luhmann’s theory of autopoieses and social systems may also be used to analyse the nature of and the relationships between the systems of law, politics and science. Luhmann’s theories do not deal with governance or institutions in general. His focus is on the differentiation of society into communicatively different subsystems such as law, politics, science, etc. [11] In his theories these systems are characterized by being communicative, not by being institutions, and by being normatively closed and thus systematically different systems. They are thus constituted by their internal communicative processes which are centered around specific codes or rationalities. The systems are cognitively open, but normatively closed around their specific code, that is autopoietic. This implies that an essential part of the operation of the systems concern and are influenced by the specific relations between these communicative systems. Luhmann does not discuss the social systems in terms of exercising or relating to power or to sovereignty as such. His theories imply a disinterest in sovereignty and in unity, and instead an interest in the running operations of the systems, in their communities and in their differentiation into systematically different rationalities (codes). Law, politics and science are thus exercised parallelly and also in interdependent ways. Luhmann’s theories do not as such give any clue as to the more specific interactions between these systems, and to their relations, but it is implied in his theories that the relations between the systems are essential. This can however only be analyzed specificly.
Luhmann’s system theory may be compared to Foucaults discourse theory. Both authors characterize the different systems/discourses of law, politics and knowledge/science/disciplines as being totally heterogeneous and having very different rationalities, but also as being combined or interdependent and as being dominant forms of communication in modern societies. They function on very different levels of society at the same time as they also interact and affect the same social phenomena. Both theories must be said to back the supposition that modern forms of governance must include both law and politics and also science/knowledge, and that the interesting analysis should concern the interaction between these spheres.
What are the new characteristics of law:
Sovereignty, disciplines, internationalization and the new public law
It follows from the above that knowledgebased areas or disciplines cover essential areas of the exercise of power today. The roles of sovereignty and of right in these areas are often obscure and uncertain. These discourses are to some extent legally regulated, but we know very little of the effects of this. We still have to take Foucault’s sentences as our starting point: the edifices of right and of the disciplines have nothing in common. They are absolutely heterogeneous. At the same time they are integral parts of the mechanisms of power in our societies. We are still at the same question as Foucault was raising. Is it possible to develop a new form of public right as a way of regulating the new disciplines?
The other prominent aspect of law in this paper has been the interplay of national and supranational institutions and of expert, administrative, judicial and political branches of these institutions. There is a combination of overlapping and contested competences making for reflective processes where the different institutions will be interpreting each other’s competencies. This implies a dramatic change compared to the traditional configurations of sovereignty with all-encompassing competencies combined with unity and supremacy, and thus a challenge as to how we think of sovereignty, nation states and competences.
Some of the most prominent, but also selected characteristics of law which have been sketched in the above may be summed up:
(1) First it must be stated that sovereignty and right as edifices of power have lost some of their relative dominance in the exercise of power in our societies. The disciplines in the forms of knowledge- or sciencebased discourses have taken over due to their structuring and defining qualities. Law in the form of legal regulation has traditionally been based on the uses of several forms or figures of legal discourse, such as individuals and their rights, equality, justice principles, rule-of-law principles in public law, «sachlichkeit», the balancing of interests etc. Individuals and their rights vis-a-vis the state and in contract law and on the other side the rule-of-law principles of the state have been essential blocks in the building of the edifice of right.
In the regulation of the disciplines which are currently vital, these social configurations of individual rights and a rule-of-law state are not necessarily the most fitting. In the environmental area, in genetical research, in telecommunications etc. we are in areas with quite different social and institutional configurations than the traditional juxtaposition between the state and the individuals and also with autonomous and futureoriented dynamics: - socially disembedded and international in their forms of communication, - without clear geographical borders, - without specific and limited actors and with much uncertainty, and - with great and uncertain risks and with a futureorientation.
In these spheres it has been necessary to construct new forms of public regulation. In areas so much dominated by expertise, factual autonomy and dynamic processes procedural forms of regulation and a significant dependence on expert environments have been predominant so far. As stated above: these forms of regulation may seem closer to the disciplines and the knowledge based discourses than to the traditional discourses of legal regulation and the edifice of right.
An essential charcteristic of many of the expert dominated areas is the uncertainties of the evalutions of future consequences and thus of the social and environmental risks involved. This means that it will be almost impossible for the political and the legal systems effectively to control these fields - in both the legislative and the implementing processes.
(2) The free and effectively functioning market has been a fundamental and basic legal and economic structure of the EC. As a significant part of this market structure the control of technical barriers to trade has been emphasized. Expert systems, new technologies etc. have thus somehow been protected by the free market out of the fear of destructing efficient market structures.
(3) The introduction of a supranational legal regime with relatively comprehensive and supreme competences, but at the same time without explicit announcements of constitutionality have led to a constitutional rather complex situation with overlapping and competing comptetences and with mutually interdependent processes of interpretations among the institutions. National and supranational institutions with expert, administrative, judicial and political branches are continuously interacting. There are conflicts concerning several vital legal procedural questions as to the status and the division of the competences. There is a continuously ongoing process of creating both constitutional and other procedural elements. The conflicts and the on-going processes spill over to all administrative, judicial and political levels. Constitutionally national and supranational authorities are sharing and competing for the formal and the informal powers at the same time as they are interpreting each other. That is: the constitutional system is mixed and continuously being negotiated and interpreted by the involved actors. This may be said to be far from the unitary sovereignty of the nation states and from a situation where also international law was dominated by the nation states as the primary actors. In the new situation it is the interaction which is the primary aspect, and this is an interaction which is characterized by being in-process and by negotiations, and thus by fragmentation and unpredictability. We are byond the stable patterns of the previous forms of nation states and rule-of-law regulations. The weighing of interests are also much more unpredictable and uncertain.
If we are seeing new forms of public right, it is very much at the dependency of expert and knowledgebased environments, within the costs of chaotic, contingent and many-levelled political and legal processes and within the uses of reflective procedures and precautionary principles.
In this situation with immense changes concerning configurations of the institutions it might be vital to analyze with a focus on the discourses themselves. That is: on the discourses of environmental knowledges and technologies, on genetical research, on foodstuffs industries, on telecommunications and their affiliated media industries etc.
Literature:
Bourdieu, Pierre, «Social Space and Symbolic Power», in «Language and Symbolic Power», Cambridge, Polity Press, 1991.
Foucault, Michel, «Two lectures», in «Power and Discipline», ed. Michael Kelly, Cambridge, MIT Press, 1994.
Anthony Giddens, «The consequences of Modernity», Stanford, Stanford University Press, 1990.
Habermas, Jürgen, «Theorie des Kommunikativen Handelns», Frankfurt, Suhrkamp, 1981.
Heritier, Adrienne, «Policy-making by subterfuge», Journal of European Public Policy, vol.4, 1997.
Joerges, Christian, «Taking the Law seriously», European Law Journal», 1996.
Joerges, Christian, «From Intergovernmental Bargaining to Deliberative Political Processes», forthcoming European Law Journal, 1997.
Kohler-Koch, Beate, m.fl., «Regieren in der Europäischen Union», Mannheim, 1996.
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Latour, Bruno, «We have never been Modern», New Tork, Harvester, 1993.
Luhmann, Niklas, «Soziale systeme», Frankfurt, Suhrkamp, 1984.
Luhmann, Niklas, «The Differentiation of Society», New York, Columbia University Press,
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Niklas Luhmann, «Die Soziologie des Risikos», de Gruyter, Berlin, 1993.
Shapiro, Martin, «Integrating Scientific Expertise into Regulatory Decisionmaking», EUI Working Paper, no 96/11.
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Footnotes
* Paper to the 1997 Annual Meeting of the Research Committee on Sociology of Law, Antwerp, 9.-12. July
[1] Niklas Luhmann, «Soziale systeme», Frankfurt, Suhrkamp, 1984.
[2] Michel Foucault «Two lectures», in «Power and Discipline», ed. Michael Kelly, Cambridge, MIT Press, 1994, p.43
[3] Michel Foucault, ibid
[4] Niklas Luhmann, ibid., and «The Differentiation of Society», New York, Columbia University Press, 1982.
[5] Bruno Latour, «We have never been Modern», New Tork, Harvester, 1993.
[6] Michel Foucault, ibid.
[7] Ibid.
[8] Ibid., p.44.
[9] Jürgen Habermas, «Theorie des Kommunikativen Handelns», Frankfurt, Suhrkamp, 1981;Pierre Bourdieu, «Social Space and Symbolic Power», in «Language and Symbolic Power», Cambridge, Polity Press, 1991; Anthony Giddens, «The consequences of Modernity», Stanford, Stanford University Press, 1990.
[10] Bruno LaTour, ibid. p.5-15.
[11] Niklas Luhmann, «Social Systems», 1984, Frankfurt, Suhrkamp, and «Die Soziologie des Risikos», de Gruyter, Berlin, 1993.
[Date of publication in the ARENA Working Paper series: 15.8.1997]
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