Band 27, Heft 1

In the debate on animal rights and the action potential of electronic agents the article presents the following three arguments: (1) Personification of non-humans is best understood as a strategy of dealing with the uncertainty about the identity of the other, which moves the attribution scheme from causation to double contingency and opens the space for presupposing the others’ self-referentiality. (2) But there is no compelling reason to restrict the attribution of action exclusively to humans and to social systems, as Niklas Luhmann argues. Personifying other non-humans is a social reality today and a political necessity for the future. (3) The admission of actors does not take place, as Bruno Latour suggests, into one and only one collective. Rather, the properties of new actors differ extremely according to the multiplicity of different sites of the political ecology.

During the last few decades, participatory decision-making procedures have begun to characterise science and technology governance. However, this process is ambivalent, because, on the one hand, participation tends to politicise the legal decision, whereas on the other law and science are dominating the political aspect of the procedure. The article is dealing with the latter aspect. In participatory forms of governance, political communication stands in the shadow of a rather powerful coalition between law and science/technology. Data from several research projects indicate that such a coalition produces a genuine type of normativity, namely a technoscientific normativity, which rules out political decision-making from the legal-administrative context.

This article develops the theoretical tools for a reversal of the traditional relationship of law to society and science, a relationship in which law appears to be the “smaller” term engulfed by the other two. It introduces a fourth term, desire, in which law has to be reflected. Normativity must be thought from the “incarnative” aspects of its demands: its edges cut through bodies and their desire. Thus legal regulation is fundamentally linked with a prohibitive emphasis immanent to all symbolic orders. However, the symbolicity of social orders has been mostly depicted in speculative and narrative styles of explanation - involving ‘Urzenen’ and violent, sacrificial origins. This article argues that it is important to de-narrativise such accounts and to develop a theory of incarnative normativity which fits into the post-ontological framework of science. Such a theory must work its way through a reassessment of the relationship between cognition and normation. It can thus be shown how epistemes shape the elusive construction of objects they manage to always have “in their back”, in the blind spot of their cognitive project.

How do law-in-action and science-in-action approaches differ and how can they learn from these differences? In order to answer this question, the author compares two exemplary empirical studies: a study by Paul Drew on cross-examination in court and one reconstruction of a soil science research project by Bruno Latour. As a first step, the article identifies strengths, foci, and framing devices for each study. In a second step, the author contrasts these characteristics. He identifies similarities in terms of the sequential order of legal and scientific activities and differences in terms of the spatiotemporal framings of these activities. In a third part, the author defines a shared problem: the fabrication of lasting and translocal statements. In light of the problem of discoursivation, the two studies appear as complementary. The event-bias of the courtroom study and the process-bias of the laboratory study read as (partial) contributions to the study of discoursivation. The potentials to learn from each other derive from exactly these diverse emphases. By combining staging and mobilisation, the article concludes, law-in-action as well as science-in-action research can draw a denser picture on how ephemerals such as observations or utterances are turned into discursive facts.

The last decades have witnessed the appearance of some quite new issues relating to the integration of science into legal decision-making. For a better understanding of the relationship between the normative and cognitive aspects of the decision-making procedure under postmodern conditions of uncertainty, it is necessary to reconstruct the “social epistemology” that consists of the hybrid rules for the management of practical knowledge problems used in the past. In the days of the classical liberal legal system, social knowledge was not a free, spontaneously generated public good, either. It was implied in the practical networks of private production which were the source of “experience”. It was one of the major tasks of the liberal state to systematise, generalise and stabilise this new knowledge base of society, which could be used for both private and public purposes. In a second-order remodelling of this earlier “public-private joint venture”, group-based calculations of probability were integrated into the practice of both private and public types of decision-making, for example, in financial markets or in the construction of public insurances. The emerging paradigm of “social epistemology” in postmodernity is characterised by the requirement to draw upon a more open conception of modelling, designing and experimenting, which makes decision-making more process-oriented, more flexible and more reflexive. This new evolutionary step will again have important consequences for the legal system which has to adapt to more a-centric heterarchical modes of knowledge production. This evolution explains the interest in public-private partnerships and calls for a more proactive public approach to knowledge management.

The contribution challenges and differentiates the debate on neo-institutionalism with an empirical analysis from the core of the international refugee regime. The central point of reference for this comprehensive institutional regime is the legal label ‘refugee.’ To understand processes of proliferation, cultural adoptions, and bypasses of such institutional concepts and rules, it is crucial to study their varying interpretations and uses on the micro-level. This is done here in the case of refugee camps, which represent an organizationally and culturally heterogeneous setting, while its elements are all part of the international refugee regime. Emic modes of interpreting and utilizing this label on camp level are analyzed. Empirically, the contribution is mainly based on research material from a six months field study in two Zambian refugee camps, conducted in 2003. The use of the refugee label as a legal concept equipped with specific rights is only one possibility of employing the concept. It is interpreted in the frame of ‘legalism,’ reasoning that being a refugee, and thus vulnerable, implies certain rights, the fulfillment of which is then claimed. Secondly, camp inhabitants also utilize the refugee label in the interpretative frame of ‘compassionism.’ Applying to the cultural connection between refugees and suffering, they expect to evoke compassion and to receive a pittance. Beside these two utilizations of the ‘refugee’ label, there are also perspectives that do not relate to this institutional concept. In a third interpretation, the situation of encampment in a country of refuge is seen as being a guest, which allows for a temporary acceptance of limitations. Fourthly, some camp inhabitants see the camp not as temporary and extraordinary refuge, but as permanent home, whereby the ‘refugee’ concept becomes largely irrelevant in daily life. Interpreting the results in the realm of the sociological neo-institutionalism, the international refugee regime can be seen as a ‘world polity’ domain. The respective theoretical approach helps to explain where institutionalized figures like the ‘refugee’ come from. However, there are great variations in the ways in which these institutional concepts and rules are employed on the micro-level. Here, ‘world polity’ research leaves an explanatory desideratum. The plurality of interpretations and utilizations of the ‘refugee’ label indicates an active and refractory functioning of the micro-level, rather than an isomorphic enactment of the legal elements of ‘world culture.’

The article deals with the changing role of business lawyers in times of increasing globalisation. A comparative analysis reveals patterns of heavy growth for law firms. These result from changing demands by big company clients which constitute the main market of the firms. The companies employ law firms for large and complex problems and, for example, they even incorporate business lawyers into their structures, e.g. by making lawyers board members. At the same time, there is fierce competition between law firms. Influencing strategic decisions of firms, lawyers as legal planners acquire considerable power.