Nico Buitendag

In light of the urgency posed by ecological concerns, it becomes increasingly important to consider how the proliferation of scientific ideas for legal innovation can manifest as legal reality. This is undoubtedly a question for legal theory. This paper contends that the legal philosophical issue of how ideas evolve into laws can be enriched by the philosophy of science. The emerging field of Earth System Law (ESL) is utilised as a case study, subjecting it to Thomas Kuhn’s theory of paradigm shifts. The legal theoretical foundation combines Niklas Luhmann’s autopoietic systems theory with Bruno Latour’s theory of modes of existence to analyse how scientific facts may become legal norms. The article presents three arguments. The first is that new legal ideas from academia, such as ESL, must be situated within the science system rather than the legal one. Second, inspired by Kuhn and complemented by Michel Serres, it is posited that these ideas can be fruitfully understood as competing paradigms within a disciplinary crisis, aiming to effect a paradigm shift within ‘normal’ environmental law. Finally, the question of how academic theories can translate into positive law is addressed by highlighting the similarities and differences between scientific and legal arguments.

In light of the urgency posed by ecological concerns, it becomes increasingly important to consider how the proliferation of scientific ideas for legal innovation can manifest as legal reality. This is undoubtedly a question for legal theory. This paper contends that the legal philosophical issue of how ideas evolve into laws can be enriched by the philosophy of science. The emerging field of Earth System Law (ESL) is utilised as a case study, subjecting it to Thomas Kuhn’s theory of paradigm shifts. The legal theoretical foundation combines Niklas Luhmann’s autopoietic systems theory with Bruno Latour’s theory of modes of existence to analyse how scientific facts may become legal norms. The article presents three arguments. The first is that new legal ideas from academia, such as ESL, must be situated within the science system rather than the legal one. Second, inspired by Kuhn and complemented by Michel Serres, it is posited that these ideas can be fruitfully understood as competing paradigms within a disciplinary crisis, aiming to effect a paradigm shift within ‘normal’ environmental law. Finally, the question of how academic theories can translate into positive law is addressed by highlighting the similarities and differences between scientific and legal arguments.

This article explores the intricate interplay between affective labour, quasi-objects, and board games, spotlighting the ancient game of Hnefatafl. Leveraging Italo Calvino’s light/heavy distinction, we challenge the notion that games are mere lighthearted diversions, exposing their ideological weight. The discussion positions board games within the broader context of politics, culture, and media, presenting two fundamental propositions: first, that board games require affective labour from players to activate their political and ideological content; second, that games function as quasi-objects, as described by Michel Serres, which blur the line between subject and object and contribute to the formation of political communities. The article illustrates how these games reflect and reproduce social structures and hierarchies through the historical development of board games, from ancient race games to modern war games. The case study of Hnefatafl underscores the cultural and political significance of board games. It explores how the game’s rules and structure mirror and reinforce societal values, particularly in the context of Old Norse martial culture. This means that games reproduce society by feeding back on cultural realities, both reflecting and constructing them. It illustrates that through this cultural reflection, board games also designate communal values and individual status.

Niklas Luhmann posited that ‘meaning' was sociology’s basic concept but that the attention paid to it by the discipline was “rather modest” (Luhmann 1990a, 21). Not only is it essential for an individual or social system to make sense of the complex world, but it also makes it possible for the observer to establish its own identity through recursion. In a world that is only increasing in complexity, with ever-new distinctions being drawn, including themes such as ‘identity politics’ and profilitic identities constituted by new forms of media (Moeller/D’Ambrosio 2021), meaning itself seems to be disappearing across its horizon. The political landscape and how it is shaped and reflected in the media seems to have undergone a vast change in the last decade or so.

In 1985, German sociologist Niklas Luhmann published a monograph on ecology, which appeared in English translation in 1989 as Ecological Communication. It contained many original insights for ecological thinking and, despite being well-reviewed upon publication, has had a relatively minor impact on Anglophone environmental discourse. This inattention is also present in environmental law, which has recently seen an increase in legal theories that challenge its mainstream. This contribution first investigates why Ecological Communication has received scant attention, pointing to changes in the climatic context in which it first appeared and the reactionary nature of its arguments. Recognising that the work nevertheless contains critical theoretical insights for environmental law scholarship, the second aim of the article is to spotlight what from Ecological Communication remains relevant at the hand of three common claims progressive researchers level against mainstream environmental law: The critique of law's marriage to Cartesian dualism, that law should be better informed by climate science,of and law's anthropocentrism. Finally, environmental lawyers are called upon not to ignore Ecological Communication but to engage with it fruitfully.

The theoretical underpinnings of public international law have taken the sovereign status of the nation-state for granted since the beginning of the modern era. After centuries of evolution in legal and political thought, the state's definition as a bounded territorial unit has been strictly codified. The legal development of the nation-state was an ideological project informed by extra-legal considerations. Additionally, the ever-narrowing scope of the juridical idea of sovereignty functioned as a boundary mechanism instrumental in colonising Africa and other regions. While international law claims universal liberalism today, the current system based on sovereign nation-states represents not social inclusion but fierce and dangerous exclusion. The central thesis of this book is that the development of legal sovereignty was, rather than part of the modernist progress narrative, a historically contingent evolutionary regression. While other social systems such as economics and science became globalised, politics and law counterintuitively became more territorialised. It is argued that the nation-state today is not only anachronistic but is dangerously ill-equipped for facing international problems such as the climate crisis or global pandemics. Finally, it also leaves African states and many other formerly-colonised territories at a particular disadvantage by regulating their political practices into a predefined mould.

The following article was written to honour Johan Buitendag’s contribution to the discipline of eco-theology. Assuming an interdisciplinary stance, eco-theology in general and his work, in particular, is observed from the position of legal theory and sociology. As such, eco-theology is not assessed on theological grounds but is treated interdisciplinary through comparison with environmental law. More specifically, the project of eco-theology is shown to share certain characteristics with the nascent subdiscipline of Earth systems law within environmental law. It is argued that one of the most important of these is the use of norms as an ecological strategy. This is understandable as both the religious and legal systems rely on the norm form to a lesser or greater extent. However, in the legal sociology of systems theory, the shortcomings of norms have been eloquently argued. This article thus posits the limits of norms to eco-theology and Earth systems law as a challenge deserving attention. However, social systems theory has its shortcomings, and a preliminary line of flight away from this challenge is suggested in the shape of Agamben’s description of the monastic form-of-life, where life and norm overlap so intensely that suggestions of a new worldview gain plausibility.

The article aims at contrasting the autopoietic understanding of an individual and her or his actions as described by Niklas Luhmann with Paul Ricoeur’s notion of narrative identity, focusing on people as legal subjects. The article assumes that when legal subjects necessitate ethical engagement and evaluation, the law could cease to deal with problems in a mere legalistic fashion but is allowed the freedom to appeal to norms of justice external to itself as in other natural law theories. Through narrative identity the deeds of role players are to be understood in greater complexity than what a self-referential legal system is comfortable in dealing with.