Imperfect Alternatives and the Invisible Elephant: The Complex Nature of Environmental Governance
Cahiers d'Anthropology du droit Le courage des alternatives Sous la direction de Christoph Eberhard (Paris Karthala, 2012)
16 Pages Posted: 27 Sep 2012 Last revised: 2 Oct 2012
Date Written: August 1, 2012
Environmental governance decisions, like other public policies, are often based upon the assumption that having the ‘correct’ legal principles is the key to describing and prescribing the law. Yet, one of the most inescapable and persistent issues in law is its very concept. Western civil law and common law scholars have sought to understand where, how and in what form law emerges. How do normative orders form legal orders, or juridicities?
Moreover, law is not only founded on legal principles but also set within a wider social, economic, cultural as well as environmental context. As interdisciplinary approaches to the study of law expand, disciplines such as the sociology of law and legal anthropology have exposed how dogmatic principles can often be incongruent with the legal reality or law in practice. Instead alternative normative orders seem to emerge, each being complex and imperfect. By contrast, the economic analysis of law generally has sought to view normative behavior through the narrower lens of market exchange in which an ‘invisible hand’ simply guides ‘rational’ agents to the optimal solution. In recent years much has been learned from nonlinear dynamics and complex adaptive systems about how complex and imperfect [normative] behaviors can emerge from simple rules (Miller and Page 2007). The approach taken here unites these seemingly contradictory perspectives in order to portray the emergence of self-organizing governance alternatives. The article proposes a means to structure a multidisciplinary analysis of Corsican governance to better understand the underlining decision-making process and frame the corresponding forces that form legal orders.
Keywords: Economic Analysis of Law, Sociology of Law, Legal anthropology, Complex Adaptive Systems, Sustainable Development
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