Techniques of Knowing in Administration: Co‐production,Models, and Conservation Law

Law frequently demands the production, sometimes effortful, of adequate knowledge for decision making. This article explores the challenging epistemic demands made by nature conservation law during planning law approval processes for major offshore wind farms. It explores this area through the prism of co‐production: not only are ‘science’ and ‘facts’ socially and legally constructed, but in addition, scientific and factual findings shape society, and law and governance. Models are used in planning law to assess whether bird deaths associated with a proposed wind farm will have an adverse effect on the integrity of a protected site. As much as providing an accurate factual representation of the impact of a wind farm on biodiversity, the models contribute to the very possibility of governing the impact of these novel infrastructure developments on biodiversity.     

The Meat in the Sandwich: Welfare Labelling and the Governance of Meat‐chicken Production in Australia

This article critically examines the degree to which higher‐animal welfare label claims change animal welfare regulation and governance within intense meat‐chicken ('broiler') production in Australia. It argues that ethical labelling claims on food and other products can be seen as a ‘governance space’ in which various government, industry and civil society actors compete and collaborate for regulatory impact. It concludes that ethical labelling can act as a pathway for re‐embedding social concerns in the market, but only when it prompts changes that become enshrined in standard practice and possibly the law itself. Moreover, the changes wrought by ethical labelling are small and incremental. Nevertheless, labelling may create ongoing productive tension and ‘overflow’ that challenges the market to listen to and accommodate actors (including animals) on the margins to create ongoing incremental changes.     

Thinking Outside the Box – Eliminating the Perniciousness of Box‐Ticking in the New Corporate Governance Code

On 16 July 2018, a new corporate governance code was published. Like previous iterations, it applies on a ‘comply‐or‐explain’ basis, whereby companies are required to either comply with provisions or explain reasons for non‐compliance. However, the new code substantially simplified the previous version of the code in an attempt to attenuate the process of ‘box‐ticking’. Box‐ticking manifests itself firstly, by companies complying with the letter rather than the spirit of the provisions, and, second, by companies not utilising the inherent flexibility of the code to implement their optimum firm‐specific governance structures by explaining rather than complying. This article elucidates the history of box‐ticking, and the reasons why companies succumb to it, since Adrian Cadbury pioneered the concept of ‘comply‐or‐explain’ in 1992, before proposing an exclusively principles‐driven approach to the corporate governance code which would alleviate box‐ticking and fulfill the original aspirations of Cadbury over a quarter of a century ago.     

A Fresh Look at Stock Market Short‐termism

In this article, we develop a novel understanding of stock market short‐termism as a social phenomenon. Contrary to formerly popular academic belief, short‐termism is a problem that is highly unlikely to be structurally self‐correcting. An important driver of short‐termism typically elided within standard legal‐academic analyses is the informational centricity of modern stock markets, and resulting pressure on corporate managers to generate fresh ‘news’ indicative of perceived business ‘progress’. We highlight the growing enthusiasm of policy‐makers for a discriminatory ‘two‐tiered’ approach to public company investor relations. Accordingly, long‐term and committed investors are expected to be brought into the company's governance ‘inner circle’, while other investors are implicitly relegated to lowertier ‘outsider’ status. We argue that this supports a discriminatory approach to the allocation of voting entitlements in newly listing companies, enabling committed investors to develop cooperative and sustained governance relations with management unencumbered by ‘outside’ stock market pressures for short‐term financial‐performance outcomes.     

Democracy and emergency: finding the constitutional foundation of the knowledgeable state in social dynamics

This article aims to bring to light the law–society dynamic relationship in constitutional governance by engaging with the question of political constitutionalism from the perspective of institutional epistemology. It first reframes the debate surrounding legal and political constitutionalism as one concerning the state's ‘epistemic competence’ in governance shaped by the constitution, and then traces how constitutional ordering has given rise to the ‘knowledgeable state’ by setting a unique social dynamic in motion: the ‘epistemico-political constitution’. Using the example of the World Health Organization's initial response to the COVID-19 pandemic, a the article presents a two-part argument. First, constitutional ordering institutes a process of knowledge production embedded in the interaction between the state and society – a unique law–society dynamic – that responds to governance needs. Second, given the current law–society dynamic in the suprastate political landscape, the legitimacy challenge facing expertise-steered global governance is further intensified as more crisis responses are expected from outside the state.     

The Reflexive Properties of Corporate Governance Codes: The Reception of the ‘Comply‐or‐explain’ Approach in Slovenia

The Slovenian Corporate Governance Code for Public Joint‐Stock Companies was adopted in March 2004. We examine how far the implementation of the Code has resulted in the ‘reflexive’ learning processes which the ‘comply‐or‐explain’ approach to corporate governance aims to bring about. We find that compliance strategies are strikingly uniform across firms in terms of the content of deviations as well as in types of disclosure and explanations for deviations. Moreover, the quality of corporate reporting is low, with effective explanations representing only a small minority of disclosures. Thus there is little evidence that the Code has stimulated organizational learning. We consider the implications of our findings for the development of corporate governance in transition systems and for the comply‐or‐explain approach more generally.     

‘European Governance’ or Governmentality? The European Commission and the Future of Democratic Government

The word ‘governance’ has become an increasingly central policy motif in the European Union and elsewhere yet its meanings are ambiguous and often poorly understood. This article examines the genealogy of that concept focusing in particular on the European Commission's claim to have developed a new, more open and progressive model of ‘European governance’. The paper is set out in four steps. The first analyses the European Commission's claims for ‘governance’ as a concept integral to its new vision for Europe. The second interrogates some of the conflicting definitions and meanings inherent in the term and examines the highly selective paradigm of governance that has been developed in official Commission discourse. The third addresses two specific areas where the Commission's governance model has been applied: the Green paper on The Future of Parliamentary Democracy and the Open Method of Coordination. The fourth turns to analyse these findings using critical social theory. I conclude that far from laying the grounds for a more inclusive, participatory and democratic political order, the Commission's model to governance represents a form of neoliberal governmentality that is actually undermining democratic government and promoting a politics of exclusion.     

New challenges for universities in the knowledge triangle

This paper discusses the role of higher education institutions within the framework of the knowledge triangle between academic education, scientific research and innovation, as it has gained importance in recent years as a framework for innovation policies especially in the OECD and Europe. First, complementary concepts of universities’ outreach activities and extended role model such as ‘third mission’, ‘triple helix’, ‘entrepreneurial or civic university’ models and ‘smart specialization’ are reflected against their fit with the concept of the knowledge triangle, also with respect to new requirements for university governance. Second, a new understanding of spillovers between public sectors research and the business sector according to knowledge triangle is presented.

     

Applying Precaution in EU Authorisation of Genetically Modified Products—Challenges and Suggestions for Reform

In this article, I endeavour to examine concrete challenges that arise with regard to implementation of the precautionary principle in the field of European Union regulation of genetically modified organisms (GMOs). Developed by the European courts into a general legal principle, precaution requires EU regulators to strike a balance between scientific and political legitimacy when taking decisions on risk‐entailing products. Following this understanding, the current GMO legislation creates precautionary governance structures that allow for a broad input into the authorisation process, not only of scientific, but also of ‘other legitimate factors’. At the same time, it can be criticised for narrowly defining precaution as a decision rule, which, if applied correctly, will lead the decision maker to the ‘right’ decision. I argue that this misconception is one of the reasons why, in the current authorisation practice, the EU institutions fail to apply the principle in a balanced way, falling into the extremes of either purely science‐based decision making or a highly politicised precautionary rhetoric. I suggest that in order not to be paralysing, precaution should be understood as a procedural principle that provides for precautionary governance, thus enabling regulators to make appropriate risk choices.     

The Legitimacy of New Risk Governance—A Critical View in Light of the EU's Approach to Nanotechnologies in Food

The objective of this article is to draw attention to legitimacy concerns raised by tendencies in EU risk regulation to supplement legislation with alternative regulatory options that are commonly captured under the umbrella term of ‘new governance’. To this end, the risk regulation of nanotechnologies in food serves as an empirical test case. The rise of nanotechnologies affects various societal actors and constitutes a highly controversial development due to the persistence of scientific uncertainties. To reach a compromise in the legislative process is, given the contradicting knowledge claims, a contentious and time‐consuming undertaking. This article, hence, shows that controversial decisions are not necessarily taken through the legislature—the European Parliament and the Council—but are settled, outside the political arena, in guidance documents or via non‐legislative acts. This article argues, relying on an understanding of legitimacy borrowed from Habermas and Scharpf, that despite ‘new governance’ ambitions in this direction the legitimacy of these measures is at best controversial.     

Employment Discrimination Law and Industrial Psychology: Social Science as Social Authority and the Co‐Production of Law and Science

This article combines Monahan and Walker's classification of social facts, social authority, and social frameworks with political‐institutionalism's view of law and science as competing institutional logics to explain how, and with what consequences, employment discrimination law and industrial‐organizational (I‐O) psychology became co‐produced. When social science is incorporated into enforcement of legislative law as social authority—rationale for judicial rule making—law's institutional logic of relying on precedent and reasoning by analogy ensures that social science will have ongoing influence on law's development. By helping set research agendas and providing new professional opportunities, institutionalized legal doctrine shapes social science knowledge. But because of differences in institutional logic, wherein legal cumulation is backward looking whereas scientific cumulation is forward looking, co‐production of law and science may produce institutional mismatch between legal doctrine and scientific knowledge.     

Karl Polanyi and the Problem of Corporate Social Responsibility

This article considers Corporate Social Responsibility (CSR) as part of the projects in ‘new governance and decentred regulation’, which draw social forces towards the regulation of economic behaviour. It uses Karl Polanyi to open up pertinent interfaces between society and economy for observation, and Gunther Teubner to substantiate a ‘regulatory’ view of the company's social relationships. The article finds that CSR combines movements for the recognition of social relationships, on an unprecedented scale, with rigorous simultaneous movements for market building and social abstraction. Twenty‐first‐century market economy is defined by a capacity to contain ‘the social,’ which is thrown between the two movements, creating opportunities for companies to void the market's social limits. The article counterposes that the social that ‘returns’ after marketization needs to find its way past market‐building CSR, to constructively unshackle and redefine the framing of social conflicts that concern the corporation.     

“O me! O me! How i love the earth”: William Morris’s News from Nowhere and the birth of sustainable society

Arguing from an ecocritical perspective, in this article I seek to show that Morris, in his ‘green’ utopia News from Nowhere, envisaged a new social order in which communities are socially just, participatory, independent, economically viable and environmentally sustainable. I will argue that Morris, by stressing the need for a decentralized and polycentric country and by showing how co‐operation, as opposed to competition, can form a symbiosis between the members of the society, effectively linked the local with the global. I will show that Morris, turning against systematized globalization as portrayed in Edward Bellamy’s Looking Backward, gives an example of a ‘sustainable’ globalization that shares much common ground with the current politics of bioregionalism. I will finally suggest that Morris’s vision of London as an ecological city, where waste has been abolished and human beings live in harmony with nature while respecting social justice, is more urgent than ever and can be instrumental as a vision for our future life.     

Democratic Global Internet Regulation? Governance Networks,International Law and the Shadow of Hegemony

Abstract: The field of global Internet Regulation serves as a prime example for the rise of global ‘a‐centric’ and ‘self regulatory’ governance structures. The most prominent private organisation in this field is the Internet Corporation of Assigned Names and Numbers (ICANN). ICANN was founded as a private non‐profit organisation comprising private and public actors that run the Internet domain name system, a crucial part of the Internet technical infrastructure. It claims to be a participatory network that enables deliberation among the ‘relevant’ commercial and non‐profit actors in the Internet field. This normative aspiration of a legitimate sectoral polity beyond governmental and intergovernmental policymaking can also be isolated as the driving force behind a certain strand within the literature on global governance. The paper undertakes a critical analysis of this claim within the ICANN context.     

The EU–ACP development cooperation – governance challenges for non‐state actors: the case of Malawi

The European Development Consensus 2005 contains a broad policy re‐statement of the EU’s world view vis‐à‐vis its internal and external relations. It places poverty eradication and sustainable development at the heart of its policy. The context within which poverty eradication is pursued is an increasingly globalised and interdependent world that constantly creates new opportunities and challenges. Combating global poverty is seen by both parties not only as a moral obligation; rather as a building block for a more stable, peaceful, prosperous and equitable world, reflecting the interdependency of its richer and poorer countries. The EU has in its relations with the African, Pacific and Caribbean countries, past and present, pursued a development agenda via successive aid and development cooperation arrangements starting with the Yaoundé I convention, through Lomé to the Cotonou Partnership Agreement (CPA). In this article I reflect on the CPA, based on a corpus of shared objectives, principles and the Lomé ‘acquis’ in relation to Malawi non‐state actors (NSAs). I reflect on the opportunities and challenges it presents and how contemplated social dialogue between government and NSAs on the one hand and the EU can translate into poverty reduction, sustainable development and integration of the local economy to the global economy. I conclude that unlike its predecessors, Yaoundé and Lomé conventions, the CPA acknowledges the complementary role of NSAs in the development process, however NSAs in Malawi face constraints in terms of organisation and capacity building that affects their participation. What I do not do is to offer a discussion of the CPA as a whole, for that is outside the scope of this article, but rather have focused on the governance aspect vis‐à‐vis NSAs.     

The Legal Case File as Border Object: On Self‐reference and Other‐reference in Criminal Law

What do case files do? With help of an ethnographic study on the care, maintenance, and use of legal case files in a Dutch, inquisitorial context, we work through Latour's and Luhmann's conceptualizations of law. We understand these case files as enacting and performing both self‐reference and other‐reference. We coin the term border object to denote the way the legal case file becomes the nexus between two worlds it itself performatively produces: the world of ‘law itself’ on the one hand, and the ‘world out there’ on the other. As such, our discussion offers clues for a partial reconciliation of Latour's and Luhmann's conceptualizations of law: while Luhmann's insistence on other‐referential operations assist in showing how law forges an ‘epistemic relationship’ with the realities it seeks to judge, Latour's concentration on the materialities of epistemic practices assists in situating these other‐referential and self‐referential operations.     

The impact of nonprogrammatic factors on criminal‐justice interventions

Purpose. Palmer (1995) drew attention to a distinction between ‘programmatic’ and ‘non‐programmatic’ aspects of criminal justice interventions. While a considerable amount of research has accumulated on the former, the latter by comparison remains under‐researched. Nevertheless some advances have been made and the present article identifies the key components of this. Methods. Following analysis of the concepts forwarded by Palmer, a methodical comparison is made between his findings on programmatic elements and those of two other major groups of meta‐analytic findings from this area. This provides further opportunity for testing of the Risk‐Needs‐Responsivity (RNR) model and an evaluation is offered of its current status in synthesizing relevant knowledge. A parallel set of comparisons is then drawn with respect to non‐programmatic factors and the paper considers the level of agreement between separate reviews of that knowledge base. This directs attention to a number of instances of intervention ‘failure’ which can be explained by insufficient attention to non‐programmatic issues. Results. There is a generally high level of agreement between the three sets of data surveyed. There is not a complete consensus however, caused not by disagreement between data sets but by gaps in the types and range of evidence assembled. There are larger gaps remaining on non‐programmatic factors and the nature and extent of those is described. There is also discussion of some objections and proposed alternatives to RNR, and to some conceptual confusions arising from them. Conclusions. The present state of knowledge on criminal justice interventions is a ‘work in progress’ but nevertheless can provide firm guidance on the design of such interventions, highlighting areas in which much further work is needed.     

The “Paper Case”: Evidence and Narrative of a Terrorism Trial in Delhi

Through an ethnography of a terrorism trial that followed bomb‐blasts in Delhi in 2008, this article seeks to understand the centrality of files and documentary practices to the production of legal truth. By following key documents regarding the case against one man I call Fahad, I argue that the truth produced in a trial crucially depends a chain of seemingly insignificant certificatory practices‐the signatures, countersignatures, stamps, and seals that appear on documents. What emerges in the account I provide is that juridical truth is less a matter of finding ‘what really happened,’ and more about the competition between narratives that depend on the certificatory correctness of humble sheets of paper.     

Internal Market Rationality,Private Law and the Direction of the Union: Resuscitating the Market as the Object of the Political

This paper proposes a concept of ‘internal market rationality’ for the analysis of the political, legal and economic consequences of European integration. Internal market rationality refers to a specific pattern of political action in the field of internal market, which has emerged gradually due to the confluence of three main factors: first, the EU's functional institutional design; second, the processes of post‐national juridification; and third, a more contingent influence of ideas. In the interplay of those three factors, the interpretation of internal market has become overdetermined, restricting thereby the space of (democratic) politics in its regulation. This reification of internal market rationality has had a direct influence on the content of European law, as I demonstrate through the example of European private law. Internal market rationality has transformed the very concept of justice underpinning private law, the concept of the person or subject of law, the (re)distributive pattern of private law as well as the normative basis on which private law stands. I argue, finally, that a close examination of the legal, institutional and ideological arrangement behind internal market rationality provides clues for the democratisation of the EU.     

Local governance of safety and the normalization of behavior

In almost all West-European countries and large parts of the world the governance of public safety tops political priorities at both national and local level. We can observe a growing attention for public safety issues in our cities and streets, resulting in local communities and authorities that increasingly have the possibility to deal with these issues in a rather autonomous way. In this contribution, I discuss the local governance of safety through a critical analysis and reflection of inherent, new regulatory tools within an administrative or civil framework. In doing so, I focus on the precarious position of three specific categories, i.e., minors and youth, panhandlers and ‘potential’ drug users. This analysis starts off with and draws a parallel to broader social and political trends, which criminologists have described as the shift from a ‘post-crime’ to a ‘pre-crime’ society where pre-emptive logics, mechanisms of exclusion and the criminalization of behavior tend to prevail.