The core of my research programme is international environmental law, with an emphasis on the structure and functioning of international environmental regimes, and of environmental law more in general. I have been particularly interested in the impact of uncertainty on environmental law; this has led me to study the precautionary principle, which is an attempt to lay down principles for decision-making under conditions of uncertainty.
The uncertainty that most often confronts political and legal officials in environmental cases is, of course, scientific uncertainty. Environmental law and policy depend heavily on scientific inputs, and when those inputs are open-ended, legal and political authorities are caught flat-footed. In order better to understand how translations could be carried out across the boundaries between expert discourses, I have begun exploring literature on social studies of science, drawing on sociology, philosophy, and history.
My interest in the interaction among expert discourses led me to reconceptualise sustainable development as an intersection of social systems. I turned to autopoietic scholarship in sociology and law for analyses of these systems, including law, and for insights into the manner in which law communicates with its environment. Legal literature in autopoiesis is preoccupied with the paradoxical manner in which law’s validity is grounded: law, according to an autopoietic analysis, provides its own grounds for validity. But in order to have any influence on its environment, it must, of course be able to communicate with it. This can be done in a punctual fashion, through individual rulings or judgments, or in a more structured manner. Interrelationships among systems come to be more highly structured when they interact regularly, which is certainly the case with respect to the various social systems that seek to address environmental degradation.
If law provides the grounding for its own validity, this raises questions as to whether the connection between law and the sovereign state is a necessary one, or whether this connection can be rethought or broken altogether. Scholarship on transnational law explores just these questions. Some of this law is produced by states, but non-state actors are increasingly involved in the production of rules and in governance more generally. Transnational law raises a number of questions about the production of law: if law is no longer grounded in the formal structures of the state, and no longer clearly related to formal political authority, its legitimacy and validity must be explained and understood differently. Environmental law tends to flow in transnational rather than domestic or international channels; the more robust political and legal structures that are emerging in transnational space are rapidly occupied by environmental problems or issues.
I am currently working on a project on sustainable development and the precautionary principle. The common feature of both, beyond their focus on the environment, is the challenge they pose to social systems to work together. By ‘work together’ I do not have in mind the kind of happy collaboration toward a common end that often seems to be assumed in literature on sustainable development in particular. Rather, I envisage these interactions to be difficult, requiring ongoing attention to the conduits among systems, and to the institutions within individual systems that allow for processes of decoding and translation of communications from others.
Another current project focuses more squarely on law in transnational space. In this project, I draw on literature on constitutions that are not rooted in states, but rather in networks or constellations of actors and activities or objects of concern. One such network could be defined as environment, though it is more likely that the networks would not be so broadly defined, but would focus on a particular environmental problem or issue, or on a point of friction between the objective of environmental protection and other objectives such as international trade and commerce or resource extraction. Here the questions include how these networks come to be constituted and how they operate; and in particular how one can conceptualize law in these networks.