—Nico Krisch, Professor of International Law, Graduate Institute of International and Development Studies, Geneva, Switzerland. Email: nico.krisch@graduateinstitute.ch
[Editor’s Note: This is a rejoinder by Nico Krisch to two replies to his recent ICON article, Entangled Legalities in the Postnational Space.]
‘Entangled Legalities’ might sound like a fanciful combination of concepts, and I am excited that Sanne Taekema and Jan Klabbers find the notion useful and offer such generous comments in response to my article to think further with and about the idea. We all agree that multiplicity is a condition of today’s legal landscape and that scholarship needs to focus more on the interactions between norms, bodies of norms and legal systems to understand how law operates in the postnational space. The notion of entanglements seeks to take us a step in this direction. But apart from this general agreement, both Taekema and Klabbers also raise a number of critical points that I will try to take up in my brief intervention here – in the space available, I cannot fully do justice to the richness of their comments, but I will try to at least hint at a response.
Sanne Taekema especially urges a deeper theorization of the entanglement I diagnose, in particular of the relation between the straddling practices and the more conventional conflict norms – reception and overarching norms – I identify as structuring entanglements. She puts forward her own proposal with which, I should hasten to say, I largely agree – although I gesture in a similar direction at the end of the paper, this is nowhere nearly as elaborated as it should have been. The core move Taekema makes (taking further thoughts she developed in a recent insightful piece) is to take practices as the basis of theorization and to understand norms as part of such practices, thus allowing us to integrate a variety of different modes in which actors construe the relations of norms from different origins. The core question then is how to account for ‘legal systems’ in this picture, and she very usefully highlights that systems themselves are the result of legal practices – an expression of particular forms and values found especially (though not exclusively) in domestic legal systems. I understand Taekema then to consider systems, like I do, as a particular, historically contingent expression of legal practice. Whether law comes in the form of a system then turns into a question for empirical analysis – systems may be dominant in one context and not in another, and they may stand alongside the other, more unruly constructions of law I trace in my article. This framing also helps us adopt a broader historical perspective and capture the many non-systemic, often entangled configurations of law that were prominent before the consolidation of modern state law with its ambition of unity and closure.
Taekema also asks whether the notion of entanglement captures merely an external observer’s perspective or whether it also makes sense of the ‘legal normativity’ in the arguments used by participants in the legal process. For this, she herself very helpfully brings in the recent judgment in Milieudefensie vs. Royal Dutch Shell, in which the Dutch court very liberally combines norms and standards from a variety of sources to hold Shell responsible for carbon emissions and to oblige it to take emission reduction measures. Decided after I finished writing my piece, this is a great example of precisely my point about entanglements – namely, that it is driven by actors who use a variety of norms, often regardless of their formal status, to formulate convincing claims about the law. The positions of these actors will often not be as clear-cut as the judgment is; sometimes they may not even be explicit about the relations they create. In a recent volume, we present a broader set of studies tracing entanglements in a variety of settings, from corporate social responsibility to financial regulation, human rights and investment, and we find a great variety of expressions of entangled relations in positions of courts, quasi-judicial bodies, regulators, litigants, and companies. Such entanglements are created by actors who claim that normative guidance on an issue does not solely come from a single applicable norm, but that it comes instead from a conglomerate of norms from a variety of origins – and in this, it very much reflects (some) actors’ internal point of view.
Entanglement is, of course, not the only way to make sense of the interactive character of law beyond the state; in a recent conference we brought together a host of engagements with legal multiplicity in and beyond the state. Jan Klabbers very usefully highlights the connections and also differences of my approach with Boaventura de Sousa Santos’ notion of interlegality – a notion Klabbers and Gianluigi Palombella have recently made fruitful in a volume that explores the relations of legal orders. One difference is indeed that they place the focus squarely on the role of courts while I broaden the view towards all kinds of other actors in the legal process. Another, perhaps more important, difference is that my notion of legality is broader so as to include all kinds of norms which, though typically written and institutionalized, do not necessarily come with the claim to be binding or have an ill-defined legal status. In the piece, I argue that we should ‘cast a wide net’, at least for the analytical purposes I pursue. More generally, I do not think we should lose too much sleep about abstract attempts at delimiting law’s boundaries. Many norms in transnational governance are informal in nature but they are highly consequential and often constitute the rules of the game in a given domain. We may quibble if we call them ‘law’ – Brian Tamanaha, too, has recently voiced concerns about too broad a notion. But we would exclude them from scholarly attention at our peril as we would miss out on core normative, at least quasi-legal structures in many areas in which formal law will remain absent, or secondary, for the foreseeable future. And as we see in many examples of entanglement – including in Milieudefensie vs. Royal Dutch Shell – it is often the linkages between the formal and the informal that generate interesting new dynamics also in traditional, formal law.
At the end of his comment, Klabbers makes an important observation about the ‘nigh-on dystopian overtones’ of my piece. I had not perceived (or intended) it this way, but then I might just be too much of a skeptic or pessimist to notice in the first place. He certainly has a point: the image of the world I start from is indeed one in which ‘no one is in control’ – it is a world of polycentric governance in which there are power relations of all kinds but not a centre that keeps things together. This may also be the reason why, in many of the contexts I mention in the piece, accountability in the sense in which we thought about it in the global administrative law project only has limited potential – there are just too many targets without clear relations among them. Klabbers’ point that ‘where no one is in control, no one can be held to account’ may be somewhat exaggerated, but the normative and institutional design questions involved in creating meaningful accountability mechanisms under such circumstances are indeed highly complex and context-dependent. A few years ago I tried to develop some thoughts on them in a symposium that circled around ‘liquid authority’ in global governance. Solutions are certainly not as straightforward as they may have been in the past, but that is probably a sign of the times – as Zygmunt Bauman has noted,
“if the time of systemic revolutions has passed, it is because there are no buildings where the control desks of the system are lodged and which could be stormed and captured …; and also because it is excruciatingly difficult, nay impossible, to imagine what the victors, once inside the buildings …, could do to turn the tables and put paid to the misery that prompted them to rebel.”
This should not turn us into nihilists, but we should be realistic enough to acknowledge that traditional tools – to ensure accountability, to realize self-government – may no longer be able to do their work. Entanglement may sometimes further such ideals by connecting, rather than excluding normative positions and by facilitating processes of change, but as I try to show, its politics are not at all clearcut. The piece thus does not offer ready-made solutions, but in tracing today’s ‘entangled legalities’, I hope it can help us to better understand the (legal) world we live in – and thus provide a basis for devising strategies on where and how to change it.
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