Transboundary Legal Studies
1. Description of the programme: boundaries as a framework for research
1.1. Regulatory regimes
During the last decades a large set of domestic, European and global instruments have been developed that address various specific transnational problems, such as pollution and climate change, inequalities in access to health provisions, as well as problems posed by new technologies. Different legal regimes have emerged, each with its own particular set of actors, institutions and relevant standards. Such legal regimes cannot be analysed and studied in the same way as domestic legal systems. They share a couple of characteristics which call for a different approach.
a. One-dimensionality. Many regimes are especially designed to address a specific sector and/or to realize a set of particular policy-goals. Since each of them is geared to the attainment of a specific problem or goal they are not designed to facilitate cooperation between different actors or to strike a balance with other competing goals. In the domain of IT, for instance, regulation has to be developed across different regimes that are established around e.g. `privacy’ and `security’ which may point into different directions. Healthcare may be understood as a collective good but also as the object of an individual right. Different regimes may speak different languages which cannot be translated into each other without further interpretation and reflection.
b. Multiplicity. The policy-goals that are at the centre of a legal regime are not necessarily identical to the practical problems that need to be regulated. This means that specific problems are often covered by more than one regime at the same time. A certain case may be covered by regulation concerning `intellectual property’ but also by `human rights’; the provision of cannabis may be understood by reference to `drugs control’ but at the same time by public health law; the collection of biometrical data may be subject to different legal ways to ensure privacy protection. These different regimes, each with its own core concepts as well as institutions and courts, may partly cover the same problems, aspire to the same ideals and may therefore complement each other, but there is often also a competition between regimes, each with their own standards as well as their own set of actors: a plurality of formal and informal bodies that make, monitor and enforce laws and regulations.
c. Dependency on non-legal expertise. The orientation towards specific aims and problems implies the need for non-legal expert knowledge. In order to regulate new technologies or to develop legal measures to deal with environmental or health risks, interaction and cooperation between legal experts and technical or scientific experts is vital. This is actually taking place in practice where standards, benchmarks, or best practices are developed by legal as well as non-legal actors on the basis of extensive and often highly technical knowledge of the matter at hand.
1.2. Shifting boundaries
In view of these distinctive features, such regulatory regimes can only be understood and researched by questioning as well as transgressing various boundaries that seem to have lost their self-evidence. Apart from the obvious fact that the emergence of sectorial regimes cross-cuts the familiar boundaries between domestic, European and international law, other boundaries are questioned as well, resulting from the fact that non-legal actors play an important role in the making, monitoring and enforcement of rules.
In the first place, the boundary between legal and non-legal concepts tends to be blurred. The meaning of core concepts is no longer legally defined by a set of legal conditions but is also coloured by the meanings these concepts have acquired in non-legal contexts. For instance, the notion of `informed consent’ to medical treatment may be understood differently by doctors and lawyers, the legal notion of `identification’ is different from the one used by experts in privacy-design and `dominant position on the market’ may be defined in economic but also in legal terms. It should be noted that the interaction between legal and non-legal actors and their vocabularies not only affects legal discourse; legal forms of reasoning can also affect non-legal expertise. Regulation of medical treatment may for instance affect the definitions of medical disorders such as `ADHD’, and, more generally, may shift the emphasis from `doing the right thing’ to `doing things –legally- right’.
The input of actors and institutions which are not legally competent to draft, monitor and enforce rules also tends to blur the demarcation criteria of legal validity. Independent agencies or professional organisations may be the source of much regulation but are often not legally mandated to legislate; how should we regard their rule-products? As legally valid, or as not valid but nevertheless legally binding? Are there degrees of `softness’ of law?
Finally, the familiar boundaries between legislation, adjudication and execution of the law which constitute the classical notion of the rule of law tend to be blurred where alternative forms of rulemaking and new forms of adjudication emerge such as offline and online mediation and arbitration and where supervisors not only develop standards but also impose fines for non-compliance.
1.3. A new approach
The complexity of the resulting regulatory landscape calls for an approach in which these shifting boundaries are not only regarded as a deplorable side-affair at the fringes of the legal system or as a marginal concern to doctrinal legal research, but need to be addressed, thematised and researched as distinctive features of how societal problems are nowadays regulated. Since all members of TLS dwell in this changing landscape, a different approach is called for, which does not consider boundaries as limitations but as a framework for research and in which the various topics serve as test cases for the exploration of the new terrain. In order to adequately research this terrain it is important that the legal researcher has acquired some of this non-legal expertise as well, and, more importantly, is able to translate non-legal concepts into legal concepts and –the other way round- to communicate to non-legal experts what is legally relevant and why. Recurring questions are: should this particular problem be regulated by law? What is `law’ in this context? What is its surplus-value? Is there any line to be drawn between `hard law’ and `soft law’ and why should it be important to draw such a line? This is particularly apparent in the case of regulation of technology. Technology and law can reinforce each other (e.g. privacy by design), but can also conflict or lead to ambiguity. More and more agreements are concluded and executed automatically. What is the role of traditional legal concepts that characterize the legal relationship between the parties concerned and its legal effects in an electronic environment? What is the significance of sub-domains (such as intellectual property rights)?
In short: TLS-researchers are not exclusively preoccupied with describing legally valid rules. They do not confine themselves to the question: `What is legally valid or relevant’. They also ask themselves why it is relevant to assess what is `legally relevant’ .
Two caveats are in place here. First, the observation that the new landscape is marked by blurring boundaries between legal and non-legal spheres does not imply that researchers of TLS are necessarily committed to interdisciplinary or multi-disciplinary research. Most participants, although they have to familiarize themselves with non-legal expertise, start from a legal conceptual framework, and only occasionally make use of empirical research methods. But they have to take into account the input of non-legal actors and institutions with their non-legal expertise and modes of reasoning. TLS is committed to discuss the problems as well as the opportunities of such interaction.
Secondly, not all contributions to the programme reflect explicitly on the landscape they are in. Most research deals with the question whether, why and how a certain topic should be regulated, and what the role is of the law in doing so. In this research the new landscape is explored. The descriptions of the cross-roads, boundaries, overlapping jurisdictions, inconsistencies and incompatible vocabularies form the indispensable material of the TLS programme. Next to such explorative research, there is research which explicitly deals with the relation between different legal regimes, the discrepancies between different bodies of expertise and their paradigmatic differences, the different forms of interpretation and the varying degrees of authority that has to be accorded to the various regulatory arrangements. This research reflects on the way in which the new landscape relates to the old one. In some publications both explorations and reflections are combined, but there are also contributions which confine themselves to either explorative or to reflective research alone.
These observations bring us to formulate both theoretical and practical ambitions which form the raison d’être of a new programme. Theoretically speaking, the programme aims at bringing together studies in different phenomena (technology, health, competition) which, although charting different terrains, meet with similar peculiarities. As was mentioned above, these topics are covered by different regimes and by the interaction between the legal and non-legal. In the second place, it aims to bring together explorative and reflective contributions: what lessons can we learn from the way the various legal regimes develop? Should we regard these developments as unwanted fragmentation or as desirable diversification? What are the effects on the traditional legal values of coherence, stability and unity of law? And in what way are ideals of parlementary/representative democracy and the Rule of Law affected by these developments? In this way, reflective studies can be enriched by the material of explorative studies whereas the latter may profit from explicit and cross-cutting reflections.
There are practical ambitions as well. In line with the transboundary nature of TLS research, valorisation of explorative research figures high on the agenda. In the interaction with non-legal participants, legal researchers are not only pupils of non-legal experts, they also figure as `teachers’ of non-legal experts. They are expected to explain what the surplus value is of legal forms of regulation and why legal arguments can be relevant. Good examples of such interaction on a daily basis is the cooperation between the researchers of global health law with research staff from the UMCG as well as the interaction with technological experts in the EU funded projects of SteP.
In university teaching, the need for an explorative and reflective attitude will be emphasized and transmitted. The LLM track that will be developed in health and technology law is an example in point. TLS education entails creating awareness of the fact that boundaries are not as self-evident nor as innocent as they are usually presented in the legal curriculum.
|Last modified:||11 April 2019 11.52 a.m.|