1. INTRODUCTION
This article was inspired by discussions on global environmental law between three scholars who approached the topic from different perspectives, with different degrees of scepticism and enthusiasm. The starting point of these discussions was our curiosity to better understand what global environmental law is, why this scholarship has emerged, and how it relates to the ongoing rich discussions on global law, as well as on law and globalization more generally. A second motivation for this article was our desire to better understand and articulate our concerns with regard to global (environmental) law – that is, with regard to what we see as a transformative agenda and a project that seeks to change in fundamental ways how we understand law, lawmaking, the validity of legal sources, and the nature of legitimacy. We acknowledge and emphasize the need to engage with these issues in greater depth than past global environmental law scholarship has done. At the same time, we are optimistic about the transformative potential of global environmental law, and the opportunities it provides to better integrate into our academic thinking the varied changes we are witnessing across the landscape of international environmental law, all the while ensuring that the numerous affected actors and their voices and concerns are better reflected in the processes related to the formulation, expansion, and implementation of global environmental law. Our third motivation therefore was the desire to explore and identify further opportunities for ourselves and other scholars to engage with the global environmental law research and teaching agendas, and identify openings to feed these insights into the ongoing broader discussions on global and transnational law.
The structure of the article reflects these three aspirations, and our divergent starting points with regard to global (environmental) law are undoubtedly reflected in the contents. The article begins by situating global environmental law scholarship in the broader landscape of global law and transnational law scholarship. It argues that international environmental lawyers have thus far not fully exploited the opportunities to engage with these broader debates. The article then turns towards examining the several important challenges that arise from the idea of global (environmental) law and the transformative agenda it inevitably entails. It argues that, while global (environmental) law scholars have not put forward a strong and explicit argument to support the idea of global environmental law as a body of norms that would apply universally across legal systems and jurisdictions regardless of their formal pedigree, global environmental law scholarship nevertheless reaches beyond merely observing and recording empirical transformations in the legal landscape. On the contrary, we see global (environmental) law as a consciously transformative agenda that is driven partly by academic activism towards a paradigm change that ultimately challenges received notions of the meaning of law, lawmaking, legitimacy, and the validity of legal sources. Still, we also observe an urgent need to better integrate the study of such jurisgenerative and normative categories into global environmental law scholarship. We see also an opportunity to brandish the transformative potential of global law against a perennial challenge of traditional lawmaking beyond the domestic realm: its persistent legitimacy gap, which expanded participation in a process of inclusive deliberation – allowed by the more fluid demarcation lines of global law – could at long last help to alleviate. The final section of this article will turn to opportunities for international environmental lawyers to contribute to the global law debate. Here, the article identifies the need to take a collaborative approach in that endeavour with a view to building connections with debates on global justice.
2. GLOBAL ENVIRONMENTAL LAW SCHOLARSHIP IN CONTEXT
What has driven the emergence of global environmental law scholarship? Looking from a broader perspective, this growing body of literature forms part of a much larger ongoing debate in law and other fields of social science.Footnote 1 Within legal scholarship, this debate can be situated under the broad umbrella of scholarship addressing law and globalization;Footnote 2 thus it forms part of efforts to rethink and reorganize the legal worldview to reflect and capture the many changes and upheavals that scholars and practitioners are witnessing on the ground as a result of the forces of globalization.
A common definition of globalization highlights increasing interconnectedness between societies in terms of political, economic, social and cultural events. Political, social, and economic activities stretch across borders, regions, and continents.Footnote 3 Global networks and flows of trade, investment, finance, culture and so on are growing in magnitude.Footnote 4 Global interactions and processes are speeding up as the development of worldwide transport and communications systems accelerates the diffusion of ideas, goods, information, capital, and people.Footnote 5 Global interactions and processes are also deepening in the sense that local events can come to have sweeping global consequences.Footnote 6 Globalization remains, however, a highly complex, contested, and multidimensional phenomenon. Thus, fundamental questions have been raised in the literature on, inter alia, how ‘new’ globalization is, whether it is a positive or negative development, how it will affect the respective roles of states and democracy, and other related matters.
In the legal sphere, globalization has been defined as consisting ‘of processes by which different organized large-scale normativities become increasingly interconnected and interdependent, crossing the traditional borders of nation states, intergovernmental organisations, and non-governmental organisations’.Footnote 7 Forces that drive legal globalization include economic globalization, which increases incentives towards regulatory harmonization and the creation of transnational institutions, such as the European Union (EU) and the World Trade Organization (WTO).Footnote 8 More closely related to the focus of this article, the ascent of global environmental risks – such as climate change, ozone depletion, and biodiversity loss – is also playing a role in the globalization of law.Footnote 9
Together, the forces of globalization are seen as weakening the ‘great divide’ between international and national law.Footnote 10 The traditional and still very much prevailing vision of the legal world dates back to the creation of the Westphalian system in the 17th century, dominated by the concept of sovereign states and the dichotomy of national and international law. While this image includes transnational legal activity in the sense of public and private international law crossing state boundaries, both of these concepts remain highly state-centricFootnote 11 as their focus is on relationships among sovereign states and national legal orders respectively.Footnote 12 This traditional vision of the legal world has been fittingly labelled the ‘black box model’.Footnote 13 However, with globalization, neat organizations of the legal universe have come to face multiple challenges.Footnote 14 Sovereign states remain crucial, but their role is rapidly changing. Various actors in globalization – such as non-governmental organizations (NGOs), law firms, financial markets, and multinational corporations – are taking part in the creation of new kinds of normativity, and new border-crossing realities are evolving and transforming.Footnote 15 As Husa indicates, ‘the need for a non-nation-state-bound understanding of overlapping legal sources is growing and the necessity of knowledge of how to deal with polycentrism and pluralism of laws has grown intensely’.Footnote 16 However, the ongoing scholarly debates are far from conclusive: there is no consensus on how much globalization has influenced law or whether this influence has been beneficial or detrimental.Footnote 17
In legal scholarship, different theories and approaches are therefore under construction, seeking to accommodate law that does not fit into the traditional categories of national law and international law. The key ones include global legal pluralism,Footnote 18 transnational law,Footnote 19 and global law.Footnote 20 Scholarship on global legal pluralism builds on anthropological research on colonial and neo-colonial law, and historical work on medieval law,Footnote 21 to better understand the role of multiple non-state actors in influencing the development of law at different levels and sites,Footnote 22 including on the basis of values and knowledge systems that have been historically left at the margins of negotiations or public/private-driven action.Footnote 23 One of the focus areas is the interplay of international law and the customary law of indigenous peoples.Footnote 24
The concept of ‘transnational law’ was coined by Jessup in the 1950s, at a time when hope in public international law and public international institutions had withered as a result of the Cold War.Footnote 25 Jessup was particularly interested in the ability of private international law to resolve transnational problems through its decentralized system of allocating jurisdictional ‘power’ among national courts, which then used choice of law techniques to decide the applicable law.Footnote 26 The relationship between private and public international law has continued to attract scholarly attention until today, including with regard to the delimitation (and potentially strategic use) of states’ regulatory authority and (barriers to) the protection of fundamental rights.Footnote 27 While a wealth of literature on transnational law has subsequently emerged – including more than 50 journals with the terms ‘transnational law’ or ‘transnational legal’ in their titleFootnote 28 – the notion is often used ‘without adequate conceptual work on what the term covers’.Footnote 29 A broad conception of transnational law, also reflected in Jessup's work, includes both public and private international law, as well as law governing transnational activities not traditionally included within these areas.Footnote 30 A narrow conception sees transnational law as composed only of norms that cross national borders and do not fit the traditional categories of public and private international law.Footnote 31 Teubner's work, for example, has drawn inspiration from a scholarly debate on lex mercatoria and the highly controversial arguments that ‘merely “private” orders (contracts and associations) produce valid law without authorization from and control by the state’ and that ‘lex mercatoria is valid outside the nation state and even outside international relations’.Footnote 32 According to Teubner, such views have broken some taboos about the necessary connections between law and the state.Footnote 33
Also, the discussion on global law is characterized by fluid conceptual boundaries. Shaffer, for instance, has argued that transnational law and global law are partly overlapping notions in the sense that, under each, ‘law is being denationalized, to varying degrees’ because the legal norms may not be part of international and national law as conventionally construed.Footnote 34 Halliday and Shaffer have, in fact, argued that the ‘terminology of “global” law is misleading because much legal ordering today is not global in its geographic reach, but it nonetheless involves variation in legal ordering beyond the nation state’.Footnote 35 In their view, the concepts of transnational legal orders and transnational legal ordering best capture this reality as ‘the geographic, substantive, and organizational scope of such legal ordering varies, and because it involves both public and private actors’.Footnote 36
In turn, Walker has pointed out that ‘there has been little serious discussion – and little agreement where there has been discussion – on what is meant by “global law”’.Footnote 37 He characterizes global law as a ‘pattern of heavily overlapping, mutually connected and openly extended institutions, norms and processes’.Footnote 38 He then distinguishes global law as a particular subset of transnational law, in that global law is characterized by a ‘practical endorsement of, or commitment to the universal or otherwise global-in-general warrant of some laws or some dimensions of law’.Footnote 39 Thus, according to Walker's extensive review of different species of global law reflected in existing scholarship:
Global law … may or may not be sourced and institutionalised at the planetary level. It can be more or less actively endorsed and fully realised, and more or less concrete and positivised in its normative claim or orientation. It can also be either universal or merely planetary in scope or ambition, provided it meets a threshold requirement of not being confined by and to any particular sub-global territorial jurisdiction.Footnote 40
Global law seeks to bring some coherence to the ‘disorder of normative orders’ that is seen to define the contemporary post-national constellation of legal authority.Footnote 41 For Dias Varella:
[This] new global law is continually self-reproduced by networks of authors and highly specialized norms, both public and private … It is distinguished from classic national law in that it is not limited by national boundaries and by the lack of territorial bases, oftentimes by networks of invisible actors, such as markets, professional communities, or social networks.Footnote 42
Walker has placed the various divergent theories of global law into two main categories: convergence-promoting or divergence-accommodating approaches. The first category focuses on encouraging a general dynamic of legal convergence, while the second seeks to accommodate a general dynamic of legal divergence.Footnote 43 According to Walker:
[what binds the two categories together] is that both acknowledge and seek to address the increasing complexity of the post-national legal landscape – its diversity and fluidity of form, its multiplication of new forms of legally coded identity and difference, its congestion, its cross-systemic overlapping claims and focal concerns, its mechanisms of mutual recognition and interlock; and, it follows, its irreducibility to a state-sovereigntist logic of mutually exclusive jurisdictional allocation.Footnote 44
What remains unclear in Walker's contribution, however, is the relationship between his vision of global law and classic elements of international law (such as a treaty objective) or potentially novel elements (global goals such as the Sustainable Development GoalsFootnote 45) as the kind of ‘universal or otherwise global-in-general warrant’ that would distinguish global law from transnational law. This gap in Walker's reflection offers an opportunity for international (environmental) lawyers to contribute to the global law debate more generally.
This is the broader context and background for our discussion of global environmental law. Despite conceptual ambiguity and overlap, the foregoing visions of global law have something in common: a sense that the legal world and scholarship are in need of rethinking; yet new visions and concepts are still in the process of being formed, and basic ideas and indeed approaches are anything but settled. There is clearly scope for environmental lawyers to contribute to these debates, as several global law scholars have singled out global law phenomena in international environmental law.Footnote 46
3. GLOBAL ENVIRONMENTAL LAW SCHOLARSHIP: WHERE ARE WE?
What is global environmental law and where does global environmental law scholarship stand today? Also, in the environmental field a number of scholars have awakened to the need to change the way in which we think about (and researchFootnote 47) environmental law. This realization is reflected in the growing body of scholarship on transnational environmental lawFootnote 48 and global environmental law.Footnote 49 As this section will highlight, however, scholarship on global environmental law to date has assimilated the broader debate on law and globalization, and global law, to a limited degree only. Likewise, we assess the extent to which global environmental legal scholarship so far has missed an opportunity to make original contributions to the debate on global law.
While the idea of global environmental law has made increasingly frequent appearances in environmental law scholarship since the 1990s,Footnote 50 there seems to be no uniform and detailed definition of what global environmental law is or what the concept means.Footnote 51 Developing such an understanding also falls outside the scope of this article, which focuses on taking stock of the current state of global environmental law scholarship in this regard. In a well-known article published in 2009, Yang and Percival argued that global environmental law is emerging, and defined this new field as ‘an evolving set of substantive principles, tools, and concepts derived from elements of national and international environmental law’.Footnote 52 In their view it is ‘no longer possible to see the national environmental law systems as distinct or separate from international environmental law or from each other’.Footnote 53 Instead, global environmental law is ‘an amalgam of national and international environmental law and their interactions’.Footnote 54 Yang subsequently specified that global environmental law is ‘a common set of environmental legal principles and norms in national, international, and transnational law that are utilized to protect the environment and public health as well as to manage and conserve natural resources’.Footnote 55 One of the examples he mentioned is environmental impact assessment, which is found in most national legal systems as well as in various international environmental instruments, ‘and even as a transboundary norm’.Footnote 56 Subsequent work by Percival highlights that global law is ‘not a set of globally harmonized regulatory standards but rather a term to describe the more complex set of phenomena that are occurring in several fields of law, in particular environmental law’.Footnote 57 According to Percival, the term ‘global environmental law’ is used as it ‘appears to better capture the current complex realities of developments in the environmental field because transdisciplinary distinctions between domestic and international law, and between public and private law continue to erode’.Footnote 58
Some areas of international environmental law arguably are more reflective than others of the trends and drivers underlying the emergence of global law scholarship more generally. More than any other area, perhaps, this can be said of the continuously evolving and highly differentiated global regime on climate change mitigation and adaptation, which traverses planes of governance, recruits public and private actors, draws on traditional regulation and enforcement as well as facilitation and flexible market approaches, and encompasses difficult questions of global justice and responsibility. Still, most environmental problems are inherently transboundary and cross-cutting in nature, and require action at all levels and by multiple actors for an effective resolution. It should therefore be no surprise that global environmental law has been one of the earliest thematic areas to see a proliferation of global law scholarship, and that trend is likely to continue.
In line with broader literature on global and transnational law, global environmental law scholarship has called attention to common themes that challenge our traditional understandings of environmental law, the most notable of which is the growing importance of non-state actors. Hey highlights the role of non-state actors in actively interacting with states and global institutions involved in environmental decision making, as well as participating in standard setting, for example, through voluntary codes of conduct.Footnote 59 Percival emphasizes that ‘private parties are now playing a major role in the emergence of global environmental law’.Footnote 60 While the relevance of non-state actors in international environmental law has already been described in the abundant literature on environmental governance and soft law, the question of whether the cumulative effect of these complex changes signals an existential crisis of international and national environmental law has been posed but not exhaustively addressed in the incipient global environmental law scholarship.
Even if the notion of ‘global law’ may instinctively bring to mind the idea of a distinct body of law that applies universally or globally, no strong and explicit argument has been made of global environmental law as a separate body of law in the sense that some environmental norms would or should apply globally across legal systems and jurisdictions regardless of their formal pedigree. This aligns with Walker's argument that the notion of ‘global law’ does not refer to the law's pedigree, but to its global destination.Footnote 61 Hey, for example, has described various substantive and procedural environmental principles in order to provide an overview of the discourse of global environmental law, while at the same time noting that most, if not all, of the principles she discusses ‘are part of treaty law, while many also qualify as customary law’.Footnote 62 This implies that she does not consider these principles to be universally applicable merely by virtue of them being part of global environmental law. Morgera, in turn, has rather underscored the need to engage with global environmental law as a research and teaching agenda:
A perspective informed by global environmental law, understood as the promotion of environmental protection through a plurality of legal mechanisms relying on a plurality of legal orders, thus prompts the study of environmental law at the international, regional, national and sub-national levels as inter-related and mutually influencing systems.Footnote 63
Yet this does not obviate the need to explore whether:
the practice of global environmental law can lead to innovative forms of law, be that the result of an increasingly conscious and strategic reliance on the mutual influences between different legal orders, or of the jurisgenerative role of global scholars and practitioners.Footnote 64
Most of global environmental law scholarship seems to be empirically based, highlighting various rapid and groundbreaking changes that scholars and practitioners are witnessing on the ground. To that end, its main contribution to date has been methodological. According to Morgera:
[global environmental law] further calls for an analysis of the practice of non-State actors, particularly international organizations, international networks of experts providing advice on environmental legislation across the globe, international civil society, bilateral donors, indigenous peoples and local communities and the private sector.Footnote 65
Along similar lines, an important part of global environmental law scholarship highlights the globalization of environmental law practice,Footnote 66 and the ensuing demands on environmental law scholars and practitioners. According to Yang, international environmental law used to be seen largely as a specialized area of public international law, outside the expertise of national environmental lawyers.Footnote 67 Similarly, those working on international environmental law tended to leave questions of domestic environmental law to national law experts. However, this situation has quickly changed. There is now a greater need for domestic environmental law practice to be informed by international law, and for international environmental lawyers to understand the operation and requirements of national environmental law systems.Footnote 68 The emergence of ‘global jurists’ is also a key notion emerging from Walker's work discussed above.Footnote 69
While there is no explicit argument that global environmental law constitutes an ensemble of universally valid norms, a firmly embedded notion in global environmental law scholarship is the idea that legal concepts travel globally between jurisdictions and other normative systems. According to Yang and Percival, ‘[t]he globalization of environmental law means that regulatory approaches, legal principles, and institutional structures will be similar or have analogues across different national and international systems’.Footnote 70 Their spread relates partly to the common physical and technological origins of environmental problems, the common scientific and technological basis for resolving them, and the objective of global environmental law to address common interest problems that cannot be resolved by any state on its own.Footnote 71 Transnational environmental litigation is also contributing to this trend;Footnote 72 the rise in climate change litigation across the globe, for instance, has been driven partly by efforts to promote the development of climate law in different jurisdictions across the globe.
In terms of methodology, there has been only limited scholarly reflection thus far on what the study of global (environmental) law requires, and how this nascent field differs, for example, from the study of international (environmental) law. While most ‘grand theories’ of law – such as those formulated by Hart and Kelsen – are global in the sense that they argue something universal about the general nature of law,Footnote 73 Section 4 below will show that global environmental law implicitly or explicitly challenges key aspects of such theories. With its starting point in complex and observable developments, such as the diverse manifestations of globalization, global law defies the conceptual abstraction and simplicity of such ‘grand theories’. Altogether, its remit is theoretical as much as it is applied, inviting the question of whether ‘a genuinely global view of law’ is possible if legal cultures are different and ‘harmonization [is] plagued by legal-culture-related difficulties’.Footnote 74 According to Husa, therefore, ‘a global way of conceiving law means that also legal theories need to be re-established and denationalized’.Footnote 75 He has identified the need for methodological pluralism – i.e. the need for multiple methods to study multiple legalitiesFootnote 76 – and noted that:
Nationally oriented legal doctrine seems poorly equipped to meet pluralist forms of overlapping, interdependent, and sometimes competing non-national normativities … Other approaches, such as comparative, economic and anthropological methods are needed alongside a more conventional doctrinal approach.Footnote 77
Thus far, only a limited amount of global environmental law scholarship has reflected on legal research methods for global environmental law. The main focus of the limited body of existing literature concerns the relevance of comparative methods. Wiener's work illustrates the borrowing and travel of ideas and legal concepts (such as emissions trading) from national environmental law to international environmental law,Footnote 78 whereas the travel of legal norms and ideas from international to national environmental laws is a well-known phenomenon. Morgera has looked into interrelated dynamics of norm diffusion across different international environmental regimes, between multilateral and bilateral treaties and mechanisms, as well as through negotiating practices at different levels.Footnote 79 The interest of comparative lawyers in various forms of ‘contact’ between different legal phenomena appears useful to foster in international environmental lawyers an appreciation of diversity in local influence and global patterns.Footnote 80 Equally, the acknowledgement by comparatists that various open-ended and self-reflexive methodologies are needed to fully appreciate mutual dependencies between legal phenomena is helpful in recognizing the risks involved in this kind of research and identifying biases, such as the assumption that global environmental law phenomena are desirable or innovative.Footnote 81 These considerations had already emerged in Twining's broader reflections on global law.Footnote 82 There are, however, bound to be multiple methodological and conceptual implications of global environmental law that have not yet been identified, let alone adequately captured by existing scholarship. Some of the most obvious of these relate to those aspects of global environmental law that directly challenge our received notions concerning valid law and state monopoly on legitimate lawmaking. As we indicate below in Section 4, there is a need to engage with these issues in greater depth and rigour than past global environmental law scholarship has done.
Overall, global environmental law scholarship has focused on developing a more comprehensive and inclusive vision of environmental law that reaches beyond the established categories of international and national law and takes into consideration actors and sources that traditional legal doctrines have deemed irrelevant. It has drawn attention to global travel of legal concepts and mutual influences and interdependencies between different legal systems and levels of regulation. It has also highlighted the increasingly global outlook of environmental law as a profession. In doing so, global environmental law scholarship echoes key themes from the broader discussion of global law. On the whole, however, global environmental law scholarship has only sporadically engaged with the more theoretical academic debate on global law and its deeper reflections on questions of power and influence behind global legal phenomena and unexpected interactions among legal sources at different levels.Footnote 83 One exception is Hey, who has invited international environmental lawyers to engage with global administrative lawFootnote 84 in the face of the growing importance and limited accountability of non-state actors in exercising public powers, and of global institutionsFootnote 85 that still reflect the legacy of colonialism.Footnote 86
4. GLOBAL (ENVIRONMENTAL) LAW AS ‘LAW’: CHALLENGE AND PROMISE
What are the implications of the global (environmental) law research agenda, and what epistemic and normative challenges does it entail? While emerging conceptions of global law and global environmental law may be characterized by conceptual ambiguity and fluid boundaries, they nonetheless reflect a common perception that traditional notions of law and legal authority are unable to capture the shifting realities of rule-based governance in a fragmented, polycentric world. What unites the different visions and interpretations of global – and thus also global environmental – law is a shared view that contemporary affairs are marked by a rise in normative arrangements that transcend or challenge conventional horizons of domestic and international law, an increased functional differentiation and permeability of public and private authority, and a growing role in rulemaking and implementation of actors beyond the state.
Our argument, however, is that the project of global (environmental) law necessarily extends beyond mere observation and the recording of changes on the ground. Views such as that expressed by Teubner – according to whom the ‘emerging global … law is a legal order in its own right’Footnote 87 – reveal an ambition of the proponents of global law to offer more than the impartial representation of observed facts. Even where scholars have conceded that global law is not a discrete system of norms or legal practice, they have described it in terms of its directionality and thereby invoked a transformative agenda,Footnote 88 as described earlier in this article. Inherent in much of the global (environmental) law debate is, in other words, a normative component, an apparent aspiration to revisit questions about the validity of norms and, ultimately, the ontology of law itself. This was also picked up by Walker, who indicated that global law finds itself in between settled doctrine and an aspirational approachFootnote 89 in which specialist (professional and academic) communities are not only ‘sources of expertise and learning in matters of the emergent global law and as instruments of its application’, but are also ‘active players in the fashioning and shaping of global law’.Footnote 90
It is that dimension of global law which has elicited discomfort among more traditionally minded legal scholars, prompting questions about whether global law is indeed ‘law’.Footnote 91 It is also a dimension that does not seem to be captured adequately in the existing body of global environmental law scholarship and that would merit more careful attention. To the extent that global law narratives espouse a normative component, they transcend the boundary between empirical statements of ‘what is’ and normative yearnings of what ‘ought to be’ and, by extension, challenge received definitions of what constitutes valid law. For mainstream lawyers, the distinction between law and other normative categories lies at the very epicentre of their profession and is, in many ways, constitutive of legal practice.Footnote 92 Although views on the exact demarcation between law and other sources of normativity have varied over time across different schools of jurisprudence and moral or political philosophy,Footnote 93 contemporary lawyers by and large will tend to premise their recognition of valid law on an accepted doctrine of legal sources, usually expressed by way of a posited social fact.
This view, which has seen its greatest theoretical elaboration in the jurisprudential tradition of legal positivism,Footnote 94 assumes the existence of conventions which determine certain facts or events taken to yield established ways for the creation, modification, and annulment of legal norms; these ‘facts are the sources of law conventionally identified as such in each and every modern legal system’.Footnote 95 At the domestic level, sources of valid law will commonly be defined in a national constitution and entail adoption by state bodies (such as a legislature) and adjudication through an ordained procedure. At the international level, acknowledgement of a recognized canon of legal sources has similarly become a matter of doctrinal practice,Footnote 96 as reflected in Article 38 of the Statute of the International Court of Justice.Footnote 97 What both have in common is an innate connection with the state.Footnote 98
In its diverse formulations, global law acknowledges these established sources,Footnote 99 but treats them as a mere starting point for its central focus on legal norms beyond the state the regulatory monopoly of which it rejects.Footnote 100 Motivated by the hypothesis of a declining role of states,Footnote 101 this alternative perspective reaches well outside the traditional canon of accepted sources, embracing a broad variety of public and private norms that ‘overlap or overlay each other in criss-crossing patterns of normativity’.Footnote 102 In the resulting paradigm, conventional sources are afforded a diminished role relative to the opinions of academics and international civil society;Footnote 103 indeed, as Walker describes it, ‘some of the more powerful instances of global law … are of the pre-positive or non-positive variety’.Footnote 104
Such propensity to lessen the importance of traditional sources doctrine is but one avenue through which global law softens the dividing line between legal and other norms, challenging the distinctiveness of law and, in so doing, the unity which traditionally defines a legal order.Footnote 105 Another is the ready acceptance of norms with varying degrees of normativity and binding effect, including ‘soft law’ – such as the decisions, recommendations or codes of good practice adopted by international and national organizationsFootnote 106 – and contractual arrangements governed by private law the legal effect of which has traditionally been confined to parties.Footnote 107 This fluidity of global law again departs from the more rigid understanding of normativity in much of jurisprudence. Over the course of legal history, the stipulations enshrined in law have been seen commonly as binary in nature rather than a matter of degree: law is either valid, or it is not; it is either binding, or it is not.Footnote 108 Concern about the implications of ‘relative normativity’Footnote 109 has prompted some scholars to reject altogether notions such as ‘soft law’,Footnote 110 whereas attempts to derive broader legal effects from private law activity have been met with their own concerns.Footnote 111 Not all legal scholars share this view, however.Footnote 112 There are several areas of international practice, including the area of environmental protection, which arguably illustrate the legal significance of soft law.Footnote 113
All this should not suggest that global law ignores traditional or mainstream conceptions of law. Walker concedes that, for global law to have a legal claim and be more than an aspiration, it must retain an ‘element of establishment’.Footnote 114 Dilling and Markus contend that informal and private norms still ‘have to be “re-embedded” into well-established political and legal processes’ and ‘complemented, endorsed or limited by formal legal structures’ to have legal effect.Footnote 115 As for the question of relative normativity, even proponents of the global law project have shown reluctance to abandon the dichotomy of legal and other norms, opting instead for alternative rationalizations of variable normativity.Footnote 116 In what might be described as an ‘ironic circularity’,Footnote 117 global law seems to draw its legal pedigree from an initial anchoring in received sources, but simultaneously holds ‘out an additional, independent normative claim that is taken to transcend the boundaries of existing legal categories’.Footnote 118
But for that latter dimension, one could conclude that global law is little more than a labelling exercise, an ‘empirical mapping of scholarly trends and the fluid dynamics of the globalisation of legal study and practice’,Footnote 119 which assembles elements of lex lata and lex ferenda around a connective tissue, their shared ‘global warrant’.Footnote 120 Of these elements, some are accepted variants of binding domestic and international law; some reside in a penumbra of contested, but evolving normativity; and some, finally, lie in the realm of aspiration, or, as Walker describes it, are reflections of a presumptive ‘destination’ of the law.Footnote 121 Global law would not endeavour to represent a new and separate realm of law – with its own sources, institutions, and doctrines – operating alongside more established areas of law, but rather pursue the – no less modest – epistemic ambition to frame developments across various planes of public and private authority the rapid expansion and complex interactions of which call for a new conceptual paradigm, a ‘unique mode of thinking about law in a global context’.Footnote 122
Yet, as mentioned earlier, such an interpretation of the global law project would be too simple a dismissal of its normative thrust, and would risk underestimating its constitutive power. If nothing else, by calling it global ‘law’, the concept – intentionally or not – implies a claim to legality that goes beyond mere description. For Walker, discourses on global law provide a channel for legal scholars and professionals to effectively reformulate what counts as a valid legal argument under conditions of globalization; these ‘specialists of global law … become involved in “taking law to the world” through various different but mutually reinforcing modes and gradations of jurisgenerative activity’.Footnote 123 It is precisely in that contested space between ‘constructive discovery or creative projection’Footnote 124 that the promise and potential pitfalls of global law reside. For wherever global law purports the existence of norms beyond traditional forms and sources, it must also raise questions about the authority to adopt such norms, their legitimacy, and accountability for their implementation.Footnote 125
That is also where global law simultaneously faces its greatest vulnerability and can realize its greatest promise. Law on all levels has endured perennial accusations of a democratic deficit. International law, in particular, has been the target of scathing critique, with its current practice likened to the triumph of an unelected and bureaucratic Hofmafia over the true will of international society.Footnote 126 However, criticism has also been levelled against domestic law, where the legitimacy of legislators – based on, at best, highly aggregative representation and a thin veneer of accountability through infrequent and flawed elections – has been censored as a wanting basis of political authority.Footnote 127 Still, in our liquid modernity, where faith in universal truths has been largely replaced by a pluralism of values and ideas,Footnote 128 normative frameworks have been unable to offer a lasting alternative to the frail legitimacy of formal, posited law.Footnote 129
Against this persistent tension between flawed facts and unredeemed norms, an alternative foundation for the validity of law could find new traction through the transformative potential of global law: deliberative democracy. Based on different strands of newer social and political theory, yet eminently practical in its aspiration, it seeks to close the legitimacy gap through an observable social fact – namely, strengthened participation in a process of pluralist deliberation. In the place of an ordained and, ultimately, contestable truth, it calls for an inclusive process of collective reasoning and active public debate.Footnote 130 Different approaches have been suggested to actualize such a model of deliberative democracy, from the public reasoning process evoked by RawlsFootnote 131 to the communicative rationality and ideal discourse outlined by Habermas.Footnote 132 What these approaches have in common, however, is inclusive participation and equality of access for free and autonomous individuals, groups, and interests, including those who have been historically marginalized in collective decision making.Footnote 133 Anchored in such deliberation, law becomes the medium for transforming communicative power into administrative power, a means for making civic will formation effective in resolving societal challenges.Footnote 134 In actual practice, a perfect consensus based on the foregoing ideal of democratic deliberation may remain elusive in a socially complex and morally divided world,Footnote 135 but that does not lessen its desirabilityFootnote 136 and may even have its own advantages.Footnote 137 Its pursuit, moreover, creates a theoretical entry point for global law to enrich and strengthen legal ordering on multiple levels.
With its responsiveness to the fluidity of public authority in a postnational world, and its proximity to pluralist conceptions of normativity and justice in the international order, global law offers an opportunity for enhanced deliberation and inclusivity. It expands the range of relevant actors to subnational jurisdictions, private corporations, minorities, and civil society more generally, and can thereby help to bridge the spatial and temporal distance between those who generate the law and those whose lives are governed by it. This acquires particular importance in an environmental contextFootnote 138 in which important stakeholders – including future generations and the natural environment itself – are routinely excluded from existing democratic processesFootnote 139 and now may be given a voice by dedicated interest groups. Stronger involvement of technical experts and affected communities can improve the substantive quality of environmental governance, better ground it in local conditionsFootnote 140 and thereby impart an alternative form of legitimacy.Footnote 141 Altogether, greater participation in democratic processes has been linked to improved environmental outcomes by generating public support for relevant policies, enhancing institutional capacities of public agencies, and adding a layer of accountability that state actors alone cannot provide.Footnote 142 Baber and Bartlett go so far as to declare that a deliberative approach is therefore vital ‘for environmental law to attain global reach’.Footnote 143
Still, for global law to realize this vision and help the democratic processes that precede law formation and implementation to ‘catch up with the forces of a globalized economy’,Footnote 144 it must meet certain conditions. Collective choices have to originate in reasoned debate and public justification rather than be made ‘by blind acceptance of the views of established authorities, by deals concluded among vested interests, or by recourse to intimidation’.Footnote 145 Discussing the legal quality of global administrative law, Kingsbury has posited a set of principles and practices that, in his view, are constitutive of legality in the public sphere: rationality, proportionality, rule of law, justification, publicity, and transparency.Footnote 146 Pauwelyn, Wessel and Wouters, in turn, have highlighted that ‘traditional international law, based as it is on state consent, does not have a monopoly on legitimate cooperation’.Footnote 147 Indeed, in addition to formal state consent, legitimacy at the international level can also come from ‘expertise, an open and inclusive process of deliberation, or the implementation of effective outcomes’.Footnote 148 As a conclusion from their comprehensive study of informal international lawmaking, they observe that ‘the emerging code of good practice for the development of standards or new forms of cooperation outside international law is normatively thicker’ than the traditional validation requirements for international law in the sense of a more inclusive, transparent and predictable process, the involvement of more diverse and expert actors, and more carefully and coherently elaborated output.Footnote 149 They have therefore called for a newly calibrated set of criteria that better reflect evolving circumstances,Footnote 150 also likening such criteria to the test of ‘thick stakeholder consensus’.Footnote 151 At the same time, they highlight the crucial role of domestic oversight, arguing that ‘to ensure domestic democratic legitimacy, a minimum degree of parliamentary or congressional oversight (not necessarily formal consent) of all international cooperation that affects public policy-making or individual freedom – treaty or not, formal or informal – must be available’.Footnote 152 Krisch, in contrast, has argued that legitimacy can be realized in a global legal order by fostering public autonomy – that is, by allowing citizens to choose the conditions of their own association – and deliberating contested issues through a pluralist process in which competing associations exercise mutual toleration.Footnote 153
Compelling arguments have thus been made for a postnational model of democracy, in which the state and its formal processes are neither indispensable nor sufficient for legitimate and accountable governance,Footnote 154 and indeed borders and jurisdictions are themselves open to democratic deliberation.Footnote 155 For now, however, it remains unclear whether such aspirations are met in practice, and whether the conditions of open and equal deliberation are possible in those new contexts that stand to supplant or complement traditional state authority in a globalizing world. On a conceptual level, for instance, Stewart has expressed concern that global regulatory bodies will give greater regard to the particular interests and concerns of powerful states and well-organized economic actors, while disregarding the often peripheral interests and concerns of less organized and less powerful groups and vulnerable individuals.Footnote 156 At a minimum, that cautions against abandoning the electoral processes and procedural guarantees that have generated legitimacy in existing state polities, suggesting that hybrid forms of governance – which combine the legitimizing structures of the state with deliberation and contestation beyond the state – may offer greater hope of closing current legitimacy gaps than either states or non-state actors would alone.Footnote 157
A survey of current postnational activities in the arena of climate cooperation seems to support this assessment. At a time when several national governments are held captive by populist and nationalist political movements and have begun to withdraw from established channels of environmental diplomacy and rulemaking, the sheer scale and reach of such activities across alternative non-state venues is nothing short of remarkable, and is welcome in its own right as a counterpoint to state retrenchment or paralysis.Footnote 158 As early evaluations of the underlying initiatives and processes have shown, however, these efforts, by and large, do not meet the foregoing criteria, and are thus unlikely to serve as a corrective to the deficient legitimacy and accountability of traditional environmental law.Footnote 159 An empirical survey of climate initiatives involving non-state actors leads Bäckstrand and Kuyper to conclude that ‘transparency and accountability mechanisms are nascent at best, nonexistent at worse’,Footnote 160 while Widerberg and Pattberg find that shifting patterns of authority in climate governance have ‘made it increasingly difficult to understand who should be accountable to whom’.Footnote 161 Sheer effectiveness in remedying an environmental threat could compensate for the attested shortfall in procedural legitimacy,Footnote 162 but there again the track record of informal climate initiatives has so far been questionable.Footnote 163 Overall, the role of non-state actors in the ‘promotion of transparency, consultation, evaluation and correction in global regulatory bodies’ appears to have ‘remained modest, both in absolute terms and relative to the needs’.Footnote 164
While this conclusion, if sustained into the future, would be regrettable, it only reflects an unfulfilled potential and, as such, a missed opportunity. It should then be a void that has yet to be filled. Of greater concern, however, are assertions that global law, far from enhancing the legitimacy of rule-based governance, has actually had the opposite effect. For Collins, the claimed ‘globality’ of global law risks conveying a false sense of universalism, helping to legitimize what would otherwise be arbitrary local or particular concerns and interests.Footnote 165 It is hard to ignore this risk. In his enyclopedic digest of the global law project, Walker repeatedly discusses the important role of ‘academic elites’ in advancing global law narratives, a cryptic society of ‘specialists’ operating in ‘close-knit … association’ and ‘led by narrow elites with privileged access to resources, knowledge and networks’ that are possessed of ‘convergent world-views and an extensive sphere of influence’.Footnote 166 One might then ask what influence marginalized communities will have in defining the material content and ‘destination’ of global law – a system of norms that affects and purportedly protects them.
For Loughlin, global law manifests a triumph of regulatory technique, a science of the ‘administration of things’ which asks to replace ‘the idea of law as the expression of will, and especially the will of political majorities’.Footnote 167 He sees global law as ‘the expression of a type of instrumental reason’,Footnote 168 yet that invariably begs the question: whose instrumental reason?Footnote 169 Dias Varella, one of the few developing country scholars working on this topic, has described the challenge of global law as follows:
The challenge would be to maintain the differences that exist among nations without imposing a fusion of national legal rules, much less imposing legal norms inspired by hegemonic powers, while at the same time constructing some type of global order or, at least, an ordered legal space.Footnote 170
It is this risk of instrumental appropriation that has compelled scholars such as Koskenniemi to identify themselves with a formalist, yet politically aware conception of law, which they believe provides a more impartial and, ultimately, more just foundation for the diplomatic relations of states.Footnote 171
This is a powerful critique that merits being taken seriously. In as much as global law aspires to a normative ideal – what Walker describes as ‘globally defensible good reasons for its invocation’Footnote 172 – it invariably also introduces a measure of contingency; its normative claim cannot be simply substantiated with reference to established source criteria or other constituent rules of legal systems already in force.Footnote 173 Walker acknowledges this when he concedes that the attendant projection of global law involves ‘a gambit, a calculated risk that its explicit self-sponsorship as a form of law should not be undermined by a lack of prior authorisation’.Footnote 174 For some, this gambit strains the limits of acceptability, based on an ‘almost maddeningly schizophrenic account of what global law is’ and, by extension, what it is not.Footnote 175 Yet, while the inherent ambiguities may caution against invoking the ‘inevitability’ of this ‘[p]rojected yet oblique, unsettled yet inexorable’ project,Footnote 176 there can also be no question that global law offers an intriguing vision, an as yet dormant promise of greater inclusiveness and legitimacy in the evolving cross-border relations of humankind.
5. CONNECTING GLOBAL LAW, JUSTICE AND THE ENVIRONMENT: THE ROLE OF GLOBAL LAW SCHOLARS
Having discussed the challenge and promise of global environmental law, this section shifts the focus towards the role of global legal experts, as well as the collective practice and professional culture surrounding global environmental law. It calls for global environmental law scholars to be conscious and aware of the legitimacy implications of their project, and therefore encourages them to create and nurture intellectual environments whereby deeper reflection of their personal and collective roles and patterns of influence becomes part of global environmental law scholarship. To be sure, such self-reflexivity and heightened awareness of the scholar's role, influence and potential blind spotsFootnote 177 can only be supplementary to addressing legitimacy gaps in international and global (environmental) law through the more traditional focus on promoting processes and practices geared towards greater inclusiveness and legitimacy. For trying to imagine – even in good faith – personal blind spots and biases, and the potentially unwanted consequences of one's professional engagement, seems destined to be less effective than actually engaging and earnestly listening to those whose voices and views tend to be marginalized in the practice of global environmental law.
At the same time, the need for awareness of the considerable but largely hidden – even unconscious – power and influence that lawyers exercise in their expert roles has been highlighted in international legal scholarship in ways that should not be ignored.Footnote 178 In his exploration of ‘rule by expertise’, Kennedy laments ‘the lost opportunity to engage expertise as a doorway to responsible decision rather than as a substitute for ethical reflection and political choice’.Footnote 179 He also argues:
International lawyers can hardly avoid coming face-to-face with the diversity and analytical porousness of their expertise. Such an experience of legal pluralism might open the way of exploring law's role in distributive conflict and the responsibility of legal experts for the outcomes of struggle.Footnote 180
This has resulted in calls for methodological honesty and an explicit, conscious and proactive engagement with national, ideological and structural biases among international lawyers.Footnote 181 Elsewhere in the social sciences, calls have been made for ‘new forms of radical reflexivity’ that include ‘the explicit articulation of values, assumptions and normative orientations; and renewed attention to asymmetries in power amongst participants engaging in new approaches, methodologies, and processes of co-production’.Footnote 182 Temper and her co-authors have thus explored scholarly archetypes in order ‘to prompt an ongoing conversation, inviting us to consider how we see our scientific practice, our engagement with other agents within the process of research, how values are reflected in the work we do, and how we sense that research leads to social and political change and transformation’.Footnote 183
Confining ourselves here to the legal sphere and global environmental law, we will draw inspiration from Walker and sketch a typology of global (environmental) lawyers to explore their strengths, weaknesses and blind spots.Footnote 184 Our argument is that self-identifying with one or more such roles and attitudes may help us to analyze and understand how global environmental law phenomena are influenced by scholars, both individually and collectively, as they operate in different roles of legal expertise, contributing to the making, interpretation, application, enforcement, and diffusion of global environmental law. All too often, environmental law scholars do not explicitly interrogate in their own scholarly work their contributions to international lawmaking as advisers to governments, legal officers within international organizations, international negotiators, litigators, adjudicators, or consultants in legal advisory projects;Footnote 185 nor do they always ask whether the various forms of norm diffusion in which they are involved are inclusive or exclusive of marginalized voices. In other words, one of the missed opportunities for environmental lawyers in not engaging more closely with the global law debate is the ability to contribute to a self-reflexive conversation with other epistemic communities, such as global justice scholars and environmental justice scholars,Footnote 186 as a way to enrich traditional approaches to legal analysis and existing legal theories.
As Hey has argued in her reflection on global environmental law:
Unless more equal participation of developing states, and where relevant nonstate actors from developing states, is attained at the global level of decision-making, there will be fundamental disagreement about the aims of global environmental law, which will not be regarded as a system of law that meets standards of justice, or serves to protect the environment.Footnote 187
According to Walker – who has aptly described three typologies of the inclination of legal scholars towards justice – global law scholars more generally have not sufficiently engaged with global justice scholarship. He speaks of pragmatist legal scholars who are focused on the technicalities of the law and are blind, detached or impatient with ‘wider questions regarding the causes, manifestations and consequences of global justice and injustice’.Footnote 188 This approach could be helpful in discovering, through interpretation of the minute details of the law and considerations of mutual supportiveness, implicit choices and opportunities related to justice.Footnote 189 However, pragmatist lawyers risk becoming hostage to a ‘narrowly entrenched legalism’Footnote 190 and never putting their skills to the service of a justice-driven legal analysis. A second type of lawyer is represented by idealists, who believe that law is or can be a ‘deep and (relatively) autonomous steering mechanism for other global social and economic forces’ and focus their work on imagining new legal approaches or reinterpreting existing legal rules in ways that are geared towards addressing power imbalances and sources of injustice. These lawyers, in turn, run the risk of being caught in ‘naïve or hubristic utopianism’,Footnote 191 and of therefore being unable to put forward arguments that can be considered as technically solid as those of the pragmatic law scholars, or defensible from the viewpoint of critical legal scholars. The third type of lawyer he identifies is the radical critic who sees law as an ‘instrument for larger social and economic forces tending towards global injustice’Footnote 192 and provides an incredibly helpful critique of the ways in which law comes to be constructed as a result, and to the service, of more powerful actors and interests, which is often overlooked by pragmatist and idealist legal scholars. This third group of lawyers has its own blind spot – namely, the tendency to abandon themselves to, or content themselves with, structural fatalism.Footnote 193 In addition, Mattei has highlighted that critical legal scholars can themselves often be ‘powerful academic superstars from elite institutions that reproduce academic hierarchies’, and who risk dissociating themselves from underlying political concerns and overlook ‘the tensions and nuances in mainstream scholars’ work’.Footnote 194 According to Mattei, therefore, this may result in a highly theoretically sophisticated caricature that is carried out for its own sake, is ‘dangerously self-indulgent’, and tends to ignore the work of non-affiliated scholars even when it may be fully aligned with a counter-hegemonic agenda.Footnote 195
Self-identifying as a representative of one or more of these attitudes and establishing a collaborative conversation with colleagues who espouse different attitudes can serve to nurture a culture of explicit and accountable discussion of scholars’ biases and blind spots. Such biases and blind spots derive from professional experience, institutional culture and status, and the participation in epistemic networks that are increasingly recognized to be key determinants of international environmental law as a transnational and global legal field,Footnote 196 rather than an inherently universal and cosmopolitan one.Footnote 197 This exercise can help legal scholars to become more open to acknowledging and engaging with power asymmetries deriving from legal education, professional experiences, and epistemic networks that lead to ‘different patterns of diffusion and knowledge’ as a result of, inter alia, the multiple roles that international (environmental) lawyers play (advocates before international or national courts, advisers to governments or NGOs at the national or international level, and so on) and their multiple spheres of influence.Footnote 198 This would also serve to acknowledge and make an object of study the ‘distinct insights’ of different legal scholars who are engaged in alternative forms of practice – and competition among themselves – to influence international lawmaking and interpretation on the basis of their legal diversity.Footnote 199 This argument, emerging from Roberts’ research into the national characteristics of international lawyers, is echoed in Walker's argument about global lawyers as ‘symbolic entrepreneurs of the legal world’ who, through ‘globally resonant legal doctrine and practices’, are involved in ‘persuasive adaptation’ and therefore contribute to the progressive development of global law.Footnote 200 It also resonates with the note of caution that global environmental lawyers may also be inadvertent or strategic norm entrepreneurs, and need to reflect carefully on the research ethics dimensions of their work.Footnote 201
This distinction provides a helpful basis not only for individual global environmental law scholars to be more open and accountable in their own work, but also for developing an argument that through a collaborative approach and open dialogue differently minded and trained scholars are together better able to analyze the current (and speculatively explore the future) capacity of global environmental law to cater for global environmental justice. Such a collaborative approach can also prove to be necessary for discussing normativity and legitimacy of global environmental law phenomena. Each of the three global lawyers is limited in his or her contribution, but working together they can help each other to identify, understand, and overcome their respective blind spots and develop a more solid line of investigation of global (environmental) law and global justice that draws on the strengths of each of the individual approaches.Footnote 202 Critical legal scholars can support other lawyers with their ‘systematic attempt to include both the dimension of power and a theory of domination, and the relentless questioning of the “dark sides” of apparently emancipatory and progressive agendas’ in law, as well as ‘empowering alternative voices’.Footnote 203 In turn, pragmatic lawyers can support critical lawyers in fully taking into account the actual nuances of the law, and can support idealist lawyers in anchoring their arguments in existing details of the law or actual workings of it. For their part, idealist lawyers can support both critical and pragmatic legal scholars to move beyond a negative critique or technicist analysis towards the development of a constructive proposition that can systematically and self-reflexively consider the dark sides of law and accurately assess opportunities and constraints in its detailed workings.
For one of the authors of this article, the collaborative approach proposed above – informed by Walker's theoretical distinction, recent reflections on international law as a profession,Footnote 204 and Roberts’ empirical research – may provide a way to respond to, for instance, Klabbers’ critique of ‘international law as the law of international lawyers’ as opposed to the law practised by states.Footnote 205 A collaborative self-reflexive approach could manage the risk of glossing over the reality and theoretical implications of global (environmental) lawyers playing several roles in the context of state practice, while addressing Klabbers’ concerns about international legal research as highly competitive.Footnote 206 For that author, a collaborative self-reflexive process among global environmental lawyers may also provide a way to respond to the criticism of soft law and other deformalization processesFootnote 207 as undermining the internal logic and distinctiveness of the legal discipline, and instead harness their capacity to contribute a fresh reflection on the distinctive role of global environmental law in the context of global and environmental justice scholarship.Footnote 208 The other two authors remain less convinced of whether global environmental law as a collaborative self-reflexive approach can fully address concerns about normativity and legitimacy, and see the locus of such efforts in a process of more inclusive deliberation as well as participatory rights and guarantees. This raises the question whether global environmental law research projects may also need to factor in inclusive deliberation (as part of transdisciplinarity) as well as participatory rights and guarantees.Footnote 209 A continued dialogue among the three authors may help to further explore these questions moving forward.
6. CONCLUSIONS
With this article, we have sought to offer a survey of global law scholarship, and show how it currently remains a heterogeneous, yet substantively ambitious project to reconcile legal scholarship with the myriad kaleidoscopic phenomena referred to under the label of globalization. Despite conceptual ambiguities, global law is marked by certain common narratives, such as the preoccupation with public authority beyond the state and a shared sense that the forces of globalization are so profound that they are bringing about a fundamental shift in the very idea of law. What that shift will ultimately render, however, remains unclear for now; the global law project, in other words, is an unfinished one, its vision yet to be determined.
Our analysis then proceeded to review the literature on global environmental law, situating it within the broader context of global law scholarship. Here, too, we affirm a lack of terminological consistency and a concern with the limitations of traditional categories of lawmaking and application, in this case in the area of environmental protection. Like the global law project, it remains unfinished; yet we go further and identify an unfulfilled potential: to engage more fully with the foundational questions raised by global law scholars from a theoretical perspective, and also to explore and deploy advances in environmental law methodology – for instance, by drawing on comparative approaches to environmental law and harnessing empirical research methods.
Our analysis also confirms that global law remains, to some extent, a descriptive endeavour, focused on recording observed trends in global governance and offering causal explanations. Much of Walker's elegant systematization of global law is, for instance, a mapping exercise that traces patterns in evolving discourses about global normative activity. But Walker's work, as well as our analysis, also shows that the diverse landscape of global law harbours various strands that amount to a more activist agenda, aspiring to a jurisgenerative and transformational role of global law scholarship. We have thus discussed both considerable risk and considerable promise in global environmental law scholarship: a risk of enabling or strengthening channels of authority that lack legitimacy and accountability, or reflect elitist and hegemonic worldviews; and a promise to expand the breadth and depth of voices reflected in the creation and application of environmental norms, strengthening rather than undermining their legitimacy.
Returning from the transformational potential of global environmental law in the external world to its impact on environmental law scholarship and discourse, we concluded by arguing that the most immediate benefit it offers may be the mirror it holds up to us as a scholarly community, forcing us to consider – and potentially revise – how we approach the subject matter of our profession; shining a new light on our biases and blind spots, and casting in greater relief how our own work shapes and influences the ongoing evolution of environmental law. We drew on a proposed typology of scholarly identities and attitudes within global (environmental) law to encourage greater dialogue and collaboration among differently minded scholars to support one another in identifying, understanding and overcoming respective blind spots, and drawing on the strengths of one another to develop a more solid line of investigation at the intersection of global (environmental) law and global justice. We also underscored the need for global environmental law scholars to engage with altogether different epistemic communities, something that we believe can enable a more inclusive and self-reflexive approach to the evolving project of global environmental law.
Vibrant and, at times, perplexing global environmental law stands to remain an intriguing area of continued research. The centrifugal forces which prompted the emergence of global law scholarship in the first place show no signs of abating, and hence lawyers – including environmental lawyers – will continue to face questions that traditional understandings of lawmaking and application struggle to answer. We can be hopeful that global environmental law, as an unfinished project, will both enrich our understanding of environmental law and our role therein, helping to close, rather than expand, the legitimacy gap from which environmental governance has often suffered. However, any project of this scope also carries some risk. It is our collective responsibility as scholars of environmental law to ensure that we leverage the positive potential of the global law project without inviting new biases or supplanting the law with our own contingent interests and values.
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