Subjects of reason: goods, markets and
competing imaginaries of global
governance
Sheila Jasanoff*
In the world of global governance, power is transferred from representative
bodies such as national parliaments to global forums sealed off from normal
processes of political legitimation. This shift often occurs in the name of making
open markets and reducing barriers to trade. Applying analytic approaches
from science and technology studies, this article shows how three imaginaries
of global governance—world trade, climate change, and generic drugs—
employed economic logics to redefine political subjectivity in terms that diminished agency. Each case also demonstrates how creative legal and political
action can force a rethinking of seemingly intractable ontologies and classifications, opening up spaces for a more expansive politics.
A POSTMODERN POLITICAL IMAGINARY
Ever since imperial armies went on the march, bringing new lands and people
under centralised control, relations between sovereigns and subjects stopped
being simply territorial. The Roman Empire at its greatest extent spanned a
huge variety of cultures and forms of governance, from Britain in the northwest
to Egypt and Mesopotamia to the south and east. Across all of that land, some
ideas of citizenship were held in common: it is said, for instance, that throughout the empire the assertion ‘civis romanus sum’ earned the claiming subject the
protection of the state. Yet, as the story of Jesus of Nazareth famously illustrates,
the Roman Empire was a place of divided loyalties and subjectivities, its business conducted in two major official languages, Latin and Greek, and its day-today governance a matter of complex accommodations between the civil
authority of the ruling power and the cultural authority of local languages,
*
Pforzheimer Professor of Science and Technology Studies, Harvard Kennedy School. Email:
[email protected]. A version of this article was presented as the London Review of
International Law Annual Lecture at the London School of Economics and Political Science
during the author’s tenure as Shimizu Visiting Professor in January 2016.
London Review of International Law, Volume 4, Issue 3, 2016, 361–391
doi:10.1093/lril/lrw021
ß The Author 2016. Published by Oxford University Press. All rights reserved.
For permissions, please email: [email protected]
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Jasanoff: Competing imaginaries of global governance
customs and practices. Long before the advent of technologies such as printing
presses and newspapers, or the memorialising rituals that produce a sense of
history and national belonging, the Roman Empire was, in Benedict Anderson’s
terms, an imagined community,1 held together more by an idea of centralised
order and lawfulness than by mere spatial connection.
For much of human history, such a sense of cohesion could hardly have
been accomplished on such vast scales without the threat and, at times, the
demonstration of physical force. Pontius Pilate may have washed his hands
when the crowd clamoured for Jesus to be crucified, but the centurions of
the state still stood by when the ultimate penalty was exacted. Much closer to
our own time, the Don Pacifico affair of the mid-nineteenth century offers
stirring affirmation of the imagined ties that hold imperial sovereigns and
subjects together, but it was an assertion enabled by the power of gunboat
diplomacy. David Pacifico, a Jew raised in Portugal but born in Gibraltar,
and therefore a British subject, had been living in Athens as a merchant and
one-time Portuguese consul. In 1847, a mob, roused to anti-semitic fury by
events connected with the visit of a member of the illustrious Rothschild banking family, broke into Don Pacifico’s house, sacking and plundering it while the
Greek police looked on and did nothing.2 The Greek government refused to
compensate Don Pacifico for his damages, claiming that the sum he demanded
of about £31,500 was absurdly high.3 Only a two-month British blockade of the
port of Piraeus and the seizure of several Greek ships forced the government
ultimately to agree to compensation, although at a level far below Pacifico’s
initial reckoning of his losses.
Successful in its symbolic objectives, this extraterritorial use of force nevertheless proved highly contentious. Back in Britain, the House of Lords censured
Lord Palmerston, then Foreign Secretary, for pursuing an unmeritorious case
and endangering the nation’s foreign relations on weak and insufficient
grounds. Palmerston, in rebuttal, made a remarkable five-hour speech in the
House of Commons defending the principle that British subjects deserved their
government’s protection wherever they happened to find themselves abroad.
1
B Anderson, Imagined Communities: Reflections on the Origin and Spread of Nationalism (Verso,
1983) 6. Anderson defined a nation as ‘an imagined political community—and imagined as both
inherently limited and sovereign’ (ibid 6).
2
Rothschild’s visit coincided with Greek Orthodox Easter, when public custom in Athens called for
the burning of an effigy of Judas Iscariot. Desiring not to offend the visiting Jewish dignitary, who
was in Athens to discuss a possible loan, the Greek government forbade the custom, thereby inciting
a mob that wrongly blamed David Pacifico for the loss of an expected entertainment. See JB Scott,
Cases on International Law: Selected from Decisions of English and American Courts (West Publishing,
1906) 461.
3
AM Hyamson, ‘Don Pacifico’ 18 Transactions (of the Jewish Historical Society of England) (1953) 1.
London Review of International Law Volume 4, Issue 3, 2016 363
Appealing to the shared standards of ‘a political, a commercial, a constitutional
country’, Palmerston memorably declared: ‘as the Roman, in days of old, held
himself free from indignity, when he could say civis romanus sum; so also a
British subject, in whatever land he may be, shall feel confident that the watchful
eye and the strong arm of England, will protect him against injustice and
wrong’.4 The rhetorical bombast proved persuasive, helped no doubt by a perception that the high-sounding phrases aligned well with Britain’s overseas
interests. Parliament accepted Palmerston’s framing of the stakes involved
and voted by a majority of 46 not to ratify the upper chamber’s negative
judgement.
With more than a century and a half of hindsight, not to mention advances
in our understanding of how power works, we can see this as a performative
moment, one of those displays of theatricality that the political theorist Yaron
Ezrahi refers to as ‘necessary fictions’ by which power maintains both itself and
the appearance of democratic buy-in.5 An imaginary of empire was staged and
defended, a line of temporal continuity drawn between Pax Romana and Pax
Britannica, and national self-interest pursued, all under the proclaimed legitimacy of a just exercise of force. If even David Pacifico, with his chequered
personal and professional history and his contested claims of unseen wealth,
could assert in faraway Athens his birthright as a ‘British subject’, then truly the
idea of Britishness meant something valuable and worthy of every subject’s
allegiance. Through naval vessels in Piraeus harbour, negotiated compensation
for financial losses, and a declaration of what the ‘birthright’ of British citizenship meant in practice, Palmerston enacted a representation of Britain as ‘a
political, a commercial, [and] a constitutional’ country that could and would
assume responsibility for its most vulnerable subjects.6
4
HJ Temple (3rd Viscount Palmerston), ‘A Speech on the Affairs of Greece and the Don Pacifico
Case’, given in the House of Commons (25 June 1850), quoted in D Whitten Jr, ‘The Don Pacifico
Affair’ 48 The Historian (1986) 255, 266.
5
Y Ezrahi, Imagined Democracies: Necessary Political Fictions (Cambridge UP, 2012). It is worth
noting that such moments may create over time their own archive of memories that can be called
upon to validate new political initiatives. Such a phenomenon may indeed be perceptible in the
renewed dreams of a closer, transoceanic, Anglophone Union, inheritor of the British Empire that
appear to be gestating since the summer of 2016 in some quarters of British politics. See, for
example, S Osborne, ‘Theresa May targets Australia for first post-Brexit trade deal’, The
Independent, 4 September 2016, available at http://www.independent.co.uk/news/uk/politics/theresa-may-targets-australia-malcolm-turnbull-first-post-brexit-trade-deal-eu-referendum-g20-china-a7224801.html (last visited 31 October 2016).
6
The juxtaposition of political and commercial with constitutional is, of course, highly significant. A
cynic might well wonder if the state’s felt constitutional role vis-à-vis David Pacifico would have
elicited anything like the same rhetorical fervour from Palmerston if Britain’s regional political and
economic goals had not also, and centrally been part of the equation.
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Jasanoff: Competing imaginaries of global governance
The links between ruling authorities and the bodies they are charged with
governing have become greatly more complicated since Saint Paul allegedly
went to Rome to claim the process that was due to him as a Roman citizen.
Indeed, times have changed radically ever since David Pacifico demanded redress for harm done to him in Greece through the fecklessness of local peacekeeping institutions. In the global world, the connections among body, territory
and sovereignty are mixed up in ways that confound Michel Foucault’s tidy
organisation of modern governance into the modes of correction, surveillance
and prevention.7 That classification presumed a basic fixity in the boundaries of
each relevant entity—the body, the territory, the ruling institution—but such
firm demarcations are less and less sustainable in spaces subject to the dynamics
of high-tech inventions and economic globalisation.
Ours is a world in which things once seen as solid and well-compartmentalised are increasingly fluid, with connections among space, matter and even
time refusing to abide by old rules of ontological separation and stability. Human
bodies are on the move as never before, and not only in the form of streams of
refugees dispossessed by war or natural catastrophe.8 Deconstructed through the
representational codes of genetics and informatics, bodies have become layered
and mutable, their parts and attributes available for mining, storage, sale and
recombination by means of the convergent technologies of the day.9 Chemicals
travel through air and water, making the climate change. Ice sheets melt their
solid mass into rising oceans. Data whiz through virtual space or are retained in
memories that refuse to forget. Financial exchanges connect and destabilise continents. Would-be parents travel to rent surrogate wombs in distant lands to bear
children who will claim citizenship back home. The discourse of the 1990s on the
waning of the sovereign nation state10 hardly seems adequate to capture the
overlapping transformations and mobilities of the chaotic present.11
7 M Foucault, Security, Territory, Population: Lectures at the Collège de France 1977-1978, trans.
G Burchell (Gallimard, 2004).
8 The United Nations High Commissioner for Refugees estimates that there are currently 65.3 million
forcibly-displaced persons worldwide, of which 21.3 million are refugees. UNHCR, ‘Figures at a Glance’,
available at http://www.unhcr.org/en-us/figures-at-a-glance.html (last visited 21 September 2016).
9 For further exploration of this point and its implications, see S Jasanoff (ed.), Reframing Rights:
Bioconstitutionalism in the Genetic Age (MIT Press, 2011). The term ‘convergent technologies’ in contemporary science policy refers to the convergence of nano-, bio- and info-technologies and cognitive
science. See MC Roco & WS Bainbridge (eds), Converging Technologies for Improving Human
Performance: Nanotechnology, Biotechnology, Information Technology and Cognitive Science (Kluwer, 2003).
10 See, e.g., C Schreur, ‘The Waning of the Sovereign State: Towards a New Paradigm for
International-Law?’ 4 European Journal of International Law (1993) 447.
11 On this point, see A Appadurai, ‘Disjuncture and Difference in the Global Cultural Economy’ 2
Public Culture (1990) 1.
London Review of International Law Volume 4, Issue 3, 2016 365
In this welter of unruly forces, what has happened to the age-old concerns
of legal and moral thought? Who are we? What are our entitlements? How can
we defend them? What is the good and how do we know it? And, important for
democracy, where does the authority to produce viable answers to such
questions lie in an era that is increasingly defined by the prefix ‘post’: not
only postmodern, a term almost old-fashioned in its apparent invocation of
linear time, nor post-structural in the loss of central authorities and
categories of thought, but post-industrial,12 post-national,13 post-political,14
post-secular,15 post-human16 and even, in journalistic talk, post-truth17?
What appears to have broken down in this disturbingly after-everything time
is not only an authoritative source of norms and order that tells us how to
behave, but also a reliable centre of epistemic authority with the capacity to
know how things are and what the future holds. Reengaging with the fundamental questions of ethics, politics and law against this backdrop of fractured
power and knowledge is the central purpose of this essay.
As citizens of the modern, globalised world, we pattern in crucial respects as
subjects of reason, trapped in the play of anonymous rationalising forces whose
reach extends far beyond the nation state, let alone those more localised institutions of power—school, prison and hospital—whose disciplining gaze Foucault
cogently described and deplored.18 We are ruled by technical standards, bound
by transnational agreements, and governed by new and emerging technologies.
12 D Bell, The Coming of Post-Industrial Society (Basic Books, 1973).
13 J Habermas, The Postnational Constellation (MIT Press, 2001).
14 A wide range of scholars have called attention to the waning of ideology and the rise of consensus-based governance styles in the late twentieth century. Prominent works include F Fukuyama,
The End of History and the Last Man (Free Press, 1992); S Žižek, The Ticklish Subject: The Absent
Centre of Political Ontology (Verso, 1999); C Mouffe, On the Political (Routledge, 2005).
15 J Habermas, ‘Secularism’s Crisis of Faith: Notes on Post-Secular Society’ 25 New Perspectives
Quarterly (2008) 17.
16 The term embraces a variety of definitions and disparate ideas, but at their core is the sense that
human nature as we currently know it is open to transformation, importantly through science and
technology, with the result that human capacities will be altered or transcended in some fashion. See,
e.g., F Fukuyama, Our Posthuman Future: Consequences of the Biotechnology Revolution (Farrar
Straus & Giroux, 2002). For a review of the concept, see N Bostrom, ‘A History of
Transhumanist Thought’ 14(1) Journal of Evolution and Technology (2005) 1.
17 J Freedland, ‘Post-truth politicians such as Donald Trump and Boris Johnson are no joke’,
Guardian, 16 May 2016, available at https://www.theguardian.com/commentisfree/2016/may/13/
boris-johnson-donald-trump-post-truth-politician (last visited 21 September 2016); W Davies,
‘The Age of Post-Truth Politics’, New York Times, 24 August 2016, available at http://www.
nytimes.com/2016/08/24/opinion/campaign-stops/the-age-of-post-truth-politics.html?_r¼0 (last
visited 21 September 2016).
18 M Foucault, Discipline and Punish (Vintage, 1979).
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Jasanoff: Competing imaginaries of global governance
But the very webs of calculating reason that constrain our futures and limit our
actions also open up new spaces of critique. By exploring how we got into the
condition we are in, how we entrapped ourselves into snares of seeming inevitability through science, technology and law, we may be able to discern new
modes of intervention, ways in which law could be remobilised and its very
purposes reimagined. To that end, I lay out three cases, each broadly involving
international law—the creation of a carbon market for climate change, the dispute over global trade in GMOs, and the patent status of generic drugs. We see in
each case how the impetus to create the preconditions for a free flow of commodities led to the standardisation of people as well as things, and so to patterns
of inclusion and exclusion that never underwent democratic debate, let alone
political buy-in. In turn, we also see how law served as the vehicle through which
new imaginaries of political possibility were eventually articulated and put in
place. Each case in this sense serves as a precedent for legal invention.
POLITICAL SUBJECTIVITY—BETWEEN RAGE AND
INDIFFERENCE
How should we be governed? Depressingly, the answer emanating from some of
the world’s most mature polities is a contemptuous dismissal of the age-old
institutions of democratic government or a fatalistic shrugging of the shoulders,
on the presumption that forces out of individual control have taken away all
meaningful choices. Instead of behaving as subjects with agency, who rightfully
demand reason from those in power, we seem to have settled into opposing
camps of denial: either, as the term post-truth starkly connotes, rejecting wholesale the claims of expert knowledge in favour of a resurgent, know-nothing
populism; or else passively accepting the limits set by scientific expertise on the
futures we might hope to attain—whether defined by the inevitability of climate
change, economic stagnation or the power of technology to remake human
nature. Either way, agency is constrained, human and social integrity eroded
and the forces of capital and disciplining technologies accepted as controlling
without thoughtful reflection or constructive resistance.19 Critique itself seems
useless under such conditions. Indeed, we find ourselves in a time when the
well-springs of critique—history, social theory and humanistic studies of law
and policy—are increasingly at risk of being driven out of academia by the
19 Britain’s vote on 23 June 2016 to withdraw from the EU (‘Brexit’) is open to many interpretations,
but it seems unequivocally to stand for the following: an abandonment by the ruling Conservative
party of the hard task of deliberative compromise on a divisive issue; a reaffirmation of parochial
local identities in the face of threatened erasure; and an indifference to technocratic predictions
about the pocketbook consequences of leaving Europe.
London Review of International Law Volume 4, Issue 3, 2016 367
tyranny of audit, utility and impact.20 One thinks of the German poet Friedrich
Hölderlin’s despairing cry, ‘What use are poets in times of need?’ (or in the
untranslatable German, ‘Wozu Dichter in dürftiger Zeit?’).21
The current resurgence of nihilism and fatalism is particularly inimical to
legal inventiveness. For the nihilists, the institutions of law come across as too
committed to upholding the status quo, partaking of and reinforcing the
pathologies of the very systems from whose shackles the rebels wish to break
free. One senses something of this truculent rejection of law and lawfulness in
the US Senate’s refusal in 2016 to confirm Barack Obama’s nominee to succeed
the late Justice Antonin Scalia, even though nothing in the text of the US
Constitution authorises such a delay in an election year. The fatalists, as critics
of expertise long feared,22 have ceded normative power to technocrats who
promise to govern through the objectivity of empirical data and statistics offering evidence of a rise in welfare. In the era of big data, law with its delays and
messiness looks increasingly inefficient, unscientific and inimical to rational
decision-making. No wonder that to some contemporary technocrats, the
demos itself seems more an obstacle to be evaded than the source of purpose
in the process of government.23 The task of the ruler shifts, under this reading,
from the patient business of eliciting and crystallising the general will24 to the
managerial job of steering the people into doing what data and statistics decree
is in their best interests. Dramatic evidence of this inversion of democracy can
be seen in the rise of behavioural economics as an aid to regulation,25 and the
consequent reduction of the human subject to an entity that must be nudged for
her own good within the ‘choice architectures’ of public policy.26
20 M Power, The Audit Society: Rituals of Verification (Oxford UP, 1997).
21 F Hölderlin, ‘Brod und Wein’ (‘Bread and Wine’) (1801).
22 See, e.g., H Arendt, The Human Condition (Chicago UP, 1958).
23 R Doubleday & B Wynne, ‘Despotism and Democracy in the United Kingdom: Experiments in
Reframing Citizenship’, in S Jasanoff (ed.), Reframing Rights (MIT Press, 2011) 239.
24 One thinks here of Max Weber’s description of politics in M Weber, ‘Politics as a Vocation’, in
HH Gerth & C Wright Mills (eds), Essays in Sociology (Oxford UP, 1946) 77.
25 In late 2015, for example, the Obama administration called upon federal executive departments and
agencies to ‘identify policies, programs, and operations where applying behavioral science insights
may yield substantial improvements in public welfare, program outcomes, and program cost effectiveness’. Agencies were also asked to recruit more behavioural science experts and to strength their
relations with the research community. White House, Executive Order – Using Behavioral Science
Insights to Better Serve the American People, 15 September 2015, available at https://www.whitehouse.gov/the-press-office/2015/09/15/executive-order-using-behavioral-science-insights-betterserve-american (last visited 21 September 2016).
26 RH Thaler & CS Sunstein, Nudge: Improving Decisions about Health, Wealth, and Happiness (Yale
UP, 2008). For a positioning of this move within the history of progressive thought in the US, see
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Jasanoff: Competing imaginaries of global governance
If national governments are seeking refuge in technical rationality, especially of the economic kind, then that turn is all the more pronounced on the
global stage, where institutions of governance have historically been weaker and
less accountable to any form of popular will. Bodies like the United Nations
agencies, the World Bank and the World Trade Organisation (WTO) may not
be entirely immune to political pressure,27 but for the most part their governance model is the market and their instruments are those of capital rather than
politics.28 Global governance remains in the first place a terrain of administration, not deliberation, in which indicators based on expert knowledge do much
of the heavy lifting of legitimation. Law is everywhere, of course, authorising
institutions, setting the terms of debate, establishing definitions and precedents,
and thus undergirding the international structures of control. But this is a law
of treaties and conventions, and of delegated expert and executive responsibilities, removed from the rhetoric and passion of the public sphere and devoid of
contact with people’s own assessment of their needs and wants. A Brazilian
speaker captured the indifference of this form of rulership when he told the
World Commission on Environment and Development (the Brundtland
Commission), author of Our Common Future: ‘You talk very little about life,
you talk too much about survival. It is very important to remember that when
the possibilities for life are over, the possibilities for survival start.’29
Countering both the nihilistic and the fatalistic moves, I want to suggest a
path for critical engagement that reclaims human agency and a more creative
role for law. To get there, however, legal thought has to step out of its own
customary habitus, the term used by the sociologist Pierre Bourdieu to refer to
‘the habitual, patterned ways of understanding, judging, and acting which arise
from our particular position as members of one or several social ‘fields’.30
That habituation includes, for lawyers, a totalising immersion in the law’s
own field of action, especially the language games by which legal actors
S Jasanoff, ‘A Century of Reason: Experts and Citizens in the Administrative State’, in S Skowronek,
SM Engel & B Ackerman (eds), The Progressives’ Century (Yale UP, 2016).
27 Public opposition to India’s project to dam the Narmada River led the World Bank president to
commission the first independent review of a project already under implementation. World Bank
Group, ‘Learning from Narmada’, available at http://lnweb90.worldbank.org/oed/oeddoclib.nsf/
DocUNIDViewForJavaSearch/12A795722EA20F6E852567F5005D8933 (last visited 21 September
2016).
28 See, e.g., M Goldman, Imperial Nature: The World Bank and Struggles for Social Justice in the Age of
Globalization (Yale UP, 2005).
29 World Commission on Environment and Development, Our Common Future (Oxford UP, 1987) 40.
30 P Bourdieu, ‘The Force of Law: Toward a Sociology of the Juridical Field’ 38 Hastings Law Journal
(1987) 805 (quoted from Translator’s Introduction by Richard Terdiman at page 811).
London Review of International Law Volume 4, Issue 3, 2016 369
construct and propagate their field’s seeming universality. Bourdieu recognised
that one cannot fully appreciate those moves without the benefit of an outsider
perspective, grounded in another discipline, which for him was sociology. To
critique the logics and reasons that govern the globe, however, one has to probe
not only social orders but also their epistemic and material supports. The field
that most readily allows for this more comprehensive inquiry is science and
technology studies (STS), whose resources I draw on here to build a more
proactive notion of political subjectivity in the globalised world.
Connecting critical perspectives from law and STS is exciting but not easy
work. The trouble begins with the objects of analysis in each field—law on the
one hand and science and technology on the other. It is difficult to find an
analytic sweet spot between two forms of organised creativity that both
common sense and professional practice have declared to be in opposition to
one another.31 In spite of their profoundly important ordering influence on
human lives and societies, law and science share no easy conceptual bridges to
bring together their ways of thought. There is at first glance no common imaginary, no shared set of presumptions about the way things work and should
work, such as the notion of ‘rational choice’ that makes economists and political scientists feel they are speaking the same language, even if in different
registers. If there is such a word at all for science and law, it is the profoundly
deskilling term ‘illiteracy’ that imagines members of the legal tribe as incapable
of sense-making in the worlds of science.
Oddly, both law and science subscribe to a myth of right ways of knowing
that hampers productive critical thinking at the intersection of the two fields. In
particular, truth, the preserve of science, is often thought to be rendered moot
or irrelevant when facts are enrolled to support competing claims of justice, the
preserve of law. Courts and regulatory proceedings are seen as theatres in which
fluency of argument counts for more than accurate representations of technical
information. Law professors, judges, scientists and the mainstream media all
agree that the legal profession’s lack of scientific knowledge is a persistent barrier to progress and good governance.32 Law on this view is always lagging
because it cannot keep up with the pressure for social advancement that
comes, perennially and disproportionately, from the innovative forces of
31 See, e.g., PH Schuck, ‘Multi-Culturalism Redux: Science, Law, Politics’ 11 Yale Law and Policy
Review (1993) 1.
32 Notably, legal fact-finding has been widely identified as ‘junk science’ by prominent legal analysts
and scientific professionals. See, e.g., PW Huber, Galileo’s Revenge: Junk Science in the Courtroom
(Basic Books, 1991); M Angell, Science on Trial: The Clash of Medical Evidence and the Law in the
Breast Implant Case (WW Norton, 1996).
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Jasanoff: Competing imaginaries of global governance
science and technology.33 In 1897, Justice Oliver Wendell Holmes famously
addressed Harvard Law School students about how best to attune the law to
social ends. ‘It seems to me’, he said, ‘that every lawyer ought to seek an understanding of economics’. 34 Today, Holmes’s wish is almost a bromide; many law
students at Harvard and elsewhere have embraced the need for professional
training in economics and are actively studying finance or registering for joint
degrees in business management. Reformist pedagogical zeal has turned instead
to the notion of greater science literacy for lawyers.
Such turns of the wheel in expectations of what professionals in a given
field ought to know are worthy research topics in themselves, because they
signal (in Thomas Kuhn’s phrase35) paradigm shifts in our intellectual landscape, but that inquiry would take us far afield from the questions raised in this
article. Those questions centre, first and foremost, on science and law—not in
disjunction as imagined in conventional wisdom—but as linked motors that
jointly power our ways of being in the world. In competition or in collaboration, science and law together shape our ideas of what is possible to do, what is
worth doing, and what should be done. Both claim a kind of universalism,
whether about nature or about norms, and both are implicated in creating
understandings that cut across political and cultural space. Science seeks to
render universally truthful representations of nature; law inscribes upon society
behaviours that are taken to be enduringly natural and good. Further, both
institutions govern us. Objects as humble as tables and chairs or as sophisticated
as mobile phones and laptops, visible like the lights in a lecture theatre or
invisible like the software driving a presenter’s slides, enable groups to come
together, but they also constrain the terms on which people can do so. King
Arthur’s round-table famously tolerated neither head nor hierarchy, nor any
positions ‘below the salt’. Its material form embodied an ideal of equality.
Modern human collectives are similarly subjects of their scientific and legal
ingenuity, as toolmakers and as rule-makers—and, increasingly, the boundaries
between rules and tools cannot be cleanly drawn.
STS work has been of less help than one might have thought in filling the
intellectual void between studies of science and studies of law. STS scholars have
done massive amounts of research to uncover the hybridity and heterogeneity
of a world reconfigured by humans in an era now fashionably called the
33 For more on this point, see S Jasanoff, ‘Making Order: Law and Science in Action’, in Edward
Hackett et al. (eds), Handbook of Science and Technology Studies, 3rd ed. (MIT Press, 2007) 761.
34 OW Holmes Jr, ‘The Path of the Law’ 10 Harvard Law Review (1897) 457, 474.
35 TS Kuhn, The Structure of Scientific Revolutions (Chicago UP, 1962).
London Review of International Law Volume 4, Issue 3, 2016 371
anthropocene.36 In the process, STS has made the most high-sounding epistemological concepts, such as truth, objectivity and reason, look mundane, as
endpoints of everyday human conflict or cooperation. A basic analytic move in
STS is to say, ‘Don’t ask what a thing is or means; ask what makes it work and
what had to be done to make it so.’ This approach turns on its head the move
made by Francis Thompson, Victorian poet, vagrant, and addict, whose posthumous text on the ‘Kingdom of God’ celebrated the divinity lurking in ordinary things: ‘The angels keep their ancient places/Turn but a stone and start a
wing’. Today’s student of science and technology is more apt to bring any
thought of transcendence rudely back to Earth, to take the sublime or the
angelic and ask what mortal work was done to persuade people of the existence
of an other-worldly realm, and so to turn ideas, ideals and ideologies into solid
materialities.37 Justice Holmes, intent on transforming doctrinal law into practical economics, would surely have applauded that pragmatic impulse.
But despite all of the cleverness that has gone into tracing the hybrid,
heterogeneous networks that sustain us, despite all of the painstaking histories
of how things travel, how black boxes are not entirely black inside, and how the
illusion of scientific and technological purity is made and sustained, there
remain issues of law that are not so easily converted into the mundane or
material. We, in the West, especially in Europe, are confronting an immigrant
crisis born of long decades of inequality, oppression and violence. We can speak
of the material conditions that turned these wandering millions out of their
homelands: weapons of war, scarcity of food and water, destroyed habitats and
homes. But the moral questions are the ones that grip the political imagination,
as the British Parliament acknowledged in its extraordinary debate in January
2016 on whether US presidential candidate Donald Trump, given his incendiary
comments on Muslim immigration into the US, should be denied entry into
Britain.38 The US for its part for years refused entry to Narendra Modi, before
he was elected Prime Minister of India, for his alleged role in inciting and
condoning the deadly 2002 communal riots in Gujarat. The UK parliamentary
debate had no binding legal force, and the ban against Modi was lifted as soon
as he attained national political leadership. Yet, these cases point to the translocal power and reach of local norms of inclusion, diversity and tolerance,
norms shaped in part by earlier movements, diasporas and admixtures, and
36 C Bonneuil & J-B Fressoz, The Shock of the Anthropocene: The Earth, History and Us, trans.
D Fernbach (Verso, 2016).
37 A near-canonical study both doing and prescribing how to do such deconstructive work is B Latour,
Science in Action: Following Scientists and Engineers Through Society, trans. C Porter (Harvard UP, 1987).
38 Hansard HC, vol. 604 (18 January 2016), available at https://hansard.digiminster.com/commons/
2016-01-18/debates/1601186000001/DonaldTrump (last visited 21 September 2016).
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in part by historical experiences and memories of dominance that have turned
most modern societies into culturally cosmopolitan places.39
There is a justice dimension to the refugee question that politicians cannot
ignore, even if they would prefer to treat it as a mere matter of money and
logistics. What does the West owe to the victims of violence that Western adventurism or greed helped set in motion; and what claims, if any, do these
homeless millions on the march have in the virtual constitutional systems we
have erected within and beyond national territorial borders through prior acts of
appropriation?40 There are of course technological aspects to all matters of mobility—whether of people or things—because science and technology are implicated in most of the actions and transactions that make up the world of human
migration. Mathematicians, physicists and economists, for instance, designed the
financial instruments that sustain virtual, even fantastical, worlds of exchange—
credit default swaps, the Euro, bitcoin. Scholars interested in the market as a
technological space have asked how these constructs perform their illusionistic
magic, or fail to do so as in the crisis of the Eurozone, noting that the entities
being exchanged construct, rather than merely represent, a system of calculable
values.41 But all of today’s technologically-mediated mobilities, of money and
goods and people, make and unmake new solidarities that demand the analyst’s
simultaneous attention. What happens to ancient lines of power and responsibility when things and people no longer stay in place; and who can be held
accountable for redress when things go wrong in transit? Global governance
cannot afford to ignore these questions in a modernity that is the communal
work product of science, technology and international law.
GLOBAL SUBJECTS: CONSTITUTED AND RECONSTITUTED
IDENTITIES
Though set within the relatively compact triangle of Portugal, Greece and
Britain, the Don Pacifico affair reminds us that the mixing up of territory,
power and culture is anything but novel. Human societies have been globalising
for millennia. Migration routes, mapped by genetic ‘fingerprints’ show our
ancestors leaving Africa some 70,000 years ago and settling eventually into
39 U Beck, The Cosmopolitan Vision (Polity, 2006).
40 Timothy Mitchell argues that many of today’s geopolitical ills can be traced to the advent of the ‘oil
economy’, which he argues undermined democracy in the West and also unleashed interventionist
forces in the Middle East, with unsustainable political and environmental consequences. T Mitchell,
Carbon Democracy: Political Power in the Age of Oil (Verso, 2011).
41 M Callon (ed.), The Laws of the Markets (Blackwell, 1998).
London Review of International Law Volume 4, Issue 3, 2016 373
the farthest corners of the Earth. Maps of language families tell similar stories.
Speakers of the unrecorded parent of the modern Indo-European languages
very likely migrated from somewhere near the Caspian Sea to India in the East
and, eventually, Ireland in the West.42 Compared with these remote and distended histories, the age of exploration of the fifteenth to the seventeenth century not only feels very immediate but occupies just a blink in time. It is also
exceedingly Eurocentric in its imagination of centres and peripheries, and in the
archival records it left behind. Those later migrations, and the competition they
unleashed, culminated in the Westphalian settlement, a foundation for connecting human bodies to specific geographies through international law, especially through ideas of territory and sovereignty, citizenship and nationhood.
Clearly, the story of humanity has always been global, and yet, as in all
matters of history, there are ruptures as well as continuities. Contemporary
globalisation differs from the older histories not so much in the fact of
people and things moving around—that, in itself, is ancient news—but in
the forms of subjectivity that are affected and constituted by those movements.
The anthropologist Arjun Appadurai calls attention to these shifts in his work
on imaginaries.43 For him, globalisation occurs through overlapping cultural
flows, or ‘scapes’, of people, communications, technologies, money and ideas.
One could think of both science and law as included in Appadurai’s ‘ideoscapes’, but that label would underplay the profoundly constitutive function of
both institutions: science’s role, mediated or unmediated by technology, in
affecting our sense of possibility and our hopes and visions of good and attainable futures—what I elsewhere call ‘sociotechnical imaginaries’44; and law’s
concurrent role in making us into the kinds of people we want to be. The
new globalisation, from this standpoint of world-making, is ‘new’ because it
engages human beings who are motivated by their knowledge of the world, and
by concomitant ideas of lawfulness, as much as by crying physical or economic
needs. Subjectivity in this present era of a globalisation of legal and technical
reason is not merely a product of things befalling the human from the outside,
but a condition embraced by humans actively reflecting on and adopting new
identities through collective engagement with knowledge and norms.
One way for legal scholarship to approach the topic of global subjectivity is
by drawing together areas of the law that are conventionally treated as
42 DW Anthony, The Horse, the Wheel, and Language: How Bronze-Age Riders from the Eurasian Steppes
Shaped the Modern World (Princeton UP, 2010).
43 Appadurai (1990).
44 S Jasanoff & S-H Kim (eds), Dreamscapes of Modernity: Sociotechnical Imaginaries and the
Fabrication of Power (University of Chicago Press, 2015).
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belonging to discrete areas of practice, though all could be regarded as ‘international’ in a formal sense: in particular, environment, trade and intellectual
property. The habitus of the law tends to keep these areas separate, as if raising
different questions and requiring distinctive tactics and modes of argument.
What an STS scholar notes, however, is that similar dynamics of fact and artefact-making are at play in each domain. Each implicates two basic intellectual
moves that are widely discussed in the STS literature: solving the demarcation
problem (determining where a category begins and ends),45 and making similarity–difference judgements (telling like from unlike, and thereby enabling the
equating of like with like).46 Both sets of moves are foundational to the law, just
as they are to science. Scientists could not perform the Platonic task of cutting
nature at the joints (demarcation) without knowing where the joints are to be
found, how one kind of object resembles another, and which things must be
treated as like because they belong to the same kind. Neither, however, could
legal practitioners abide by one of the law’s prime mandates, in effect, its
Hippocratic oath—‘treat like cases alike’—without making demarcations and
similarity–difference judgements. Those judgements, moreover, are formed
within the four corners of the law, a space of legal sovereignty, whether or
not the law claims to be deferring to an exogenous scientific authority.47
Secondly, and this is the more unusual move, I want to show how notions
of legal and political subjectivity are implicated in each of the disputes discussed
below, though each is drawn from a different area of substantive law and involves different forms of classification, or kind-making. Here we return to this
article’s central theme, the constitution of global subjects of reason, and, by
extension, the critical opportunities that open up if we can see how reason and
subjectivity are built together, or in my terms co-produced,48 through the
mutually interactive work of scientific and legal expertise.
CLIMATE AND CARBON
The first case deals with air, a medium of contradictions and surprises. On the
one hand, air stands for things that we are least able to touch, see or feel, the
45 See, e.g., TF Gieryn, ‘Boundary-Work and the Demarcation of Science from Non-Science: Strains
and Interests in Professional Ideologies of Scientists’ 48 American Sociological Review (1983) 781.
46 GC Bowker & SL Star, Sorting Things Out: Classification and Its Consequences (MIT Press, 2000).
47 See, generally, S Jasanoff, Science at the Bar: Law, Science, and Technology in America (Harvard UP,
1995); S Jasanoff, ‘Serviceable Truths: Science for Action in Law and Policy’ 93 Texas Law Review
(2015) 1723.
48 S Jasanoff (ed.), States of Knowledge: The Co-Production of Science and Social Order (Routledge,
2004).
London Review of International Law Volume 4, Issue 3, 2016 375
very essence of nothingness, as when the entire fictive world of The Tempest,
with its ‘cloud-capp’d towers’ and ‘gorgeous palaces’, is melted ‘into air, into
thin air’.49 At the same time, that thin air has been a site of intense human
activity for more than a century, a time of collaboration between science and
law during which we peopled this most insubstantial medium with things that
we eventually called upon the law to regulate. Over the past half-century or so,
the Earth’s atmosphere has undergone a series of major metaphysical shifts that
have turned the formless, invisible air into a regulatory homeland for itinerant
greenhouse gases, such as carbon dioxide, and the financial world into a
marketplace where impalpable, gaseous carbon can be traded for gain or loss.
A visitor to Berlin in the summer of 2005 would have noticed a new sign in
the buses comprising part of the city’s impeccable public transportation system:
Berlin atmet auf, declared the decals on many bus windows, Wir ziehen
Feinstaub aus dem Verkehr. Somewhat freely translated: ‘Berlin breathes free.
We draw fine particulates out of traffic’ (or perhaps ‘out of circulation’). That
public transport should advertise itself as good for public health is not altogether surprising in environmentally-self-conscious Germany, and the contribution of vehicular traffic to urban air pollution hardly needs comment. But
what is this entity Feinstaub that, in 2005, literate Berliners were supposed to
recognise at a glance? How did it come to occupy their mental world? And was
it, in the philosopher Ian Hacking’s terms,50 a thing in nature, a natural kind, or
a thing in society, an interactive (or social) kind?
Before proceeding with a fuller inquiry into the nature of fine particulates
(Feinstaub), let us remind ourselves of the basis for Hacking’s distinction.
Hacking is a constructivist who concedes that the objects and ideas disclosed
through science have histories, and yet he is also a realist who believes that
nature, at some point, takes over as a realm of its own. Natural kinds, like
particulates, are simply there. So, as he once said, the idea of quarks may
have a history, ‘[b]ut quarks, the objects themselves, are not constructs, are
not social, are not historical’. Natural kinds like quarks are indifferent to us and
what we may think about them: ‘calling a quark a quark makes no difference to
the quark’. They ‘bear none of their history about them’. 51 They just are.
Natural kinds therefore achieve, in Hacking’s view, a concreteness that is not
available to categories of human behaviour, like child abuse, a subject he has
also written about extensively.
49 W Shakespeare, The Tempest, Act 4: Scene 1.
50 I Hacking, ‘A Tradition of Natural Kinds’ 61 Philosophical Studies: An International Journal for
Philosophy in the Analytic Tradition (1991) 109.
51 I Hacking, The Social Construction of What? (Harvard UP, 1999) 105.
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Jasanoff: Competing imaginaries of global governance
Feinstaub, or its US equivalent, fine particulates, also have a history, and the
origins of that history can be traced to law. In 1970, the US Congress enacted the
Clean Air Act,52 the first and most significant element of an immense, decade-long,
architectural project that brought the edifice of federal environmental law into
being. A central pillar of the act was the mandate to establish primary and secondary standards for so-called criteria air pollutants, the most widely prevalent
hazardous components of the air. Primary standards for these pollutants were to be
set at levels designed to protect public health, with an adequate margin of safety.53
There was no provision for weighing the health benefits of clean air standards
against the costs to industry of complying with those standards. In a doublebarrelled attack, industry challenged both the science that the Environmental
Protection Agency (EPA) relied on and the constitutionality of the law that allowed
EPA to determine how strictly to regulate the hazards that fell within its mandate.54
Air became a site of legal struggle, but it was a struggle initially confined to
the borders of the US, with the stakes defined and debated in accordance with
American administrative law and civic epistemology.55 Fine particulates emerged
from an epic, 30-year tug-of-war between EPA’s efforts to clean the air and
industry’s attempts to limit EPA’s freedom to define what counts as clean air.
The criteria pollutants for which EPA has to set national ambient air quality
standards include suspended particulate matter, the tiny, present-day descendants of the suspended soot that produced killer fogs in the first half of the
twentieth century. By the 1990s, EPA was aware of a public health problem
that was not yielding, despite all efforts to improve the quality of urban air.
This was the increase of respiratory illnesses such as asthma, especially among
inner-city dwellers. The agency and its scientific consultants set out to identify
the reasons. One result was the so-called Six Cities Study conducted by researchers at Harvard University’s School of Public Health.56 This ambitious
epidemiological study found that the likely agent of the nation’s growing
52 Clean Air Act 1970, 42 USC s 7401ff.
53 Clean Air Act s 109 (b)(1) provides: ‘National primary ambient air quality standards, prescribed,
under subsection (a) shall be ambient air quality standards the attainment and maintenance of
which in the judgment of the Administrator, based on such criteria and allowing an adequate margin
of safety, are requisite to protect the public health’.
54 Such multi-pronged challenges, common to the habitus of litigation, illustrate how social actors
intuitively grasp the co-produced state of the world that theorists and analysts often take such pains
to deny.
55 This concept is introduced and developed in S Jasanoff, Designs on Nature: Science and Democracy in
Europe and the United States (Princeton UP, 2005) 247.
56 DW Dockery et al., ‘An Association between Air Pollution and Mortality in Six U.S. Cities’ 329 New
England Journal of Medicine (1993) 1753.
London Review of International Law Volume 4, Issue 3, 2016 377
respiratory distress was an actor (or, as actor-network theorists in STS like to say,
an actant or non-human agent) that had hitherto escaped the searching eye of the
regulatory state: fine particulate matter. In its subsequent revision of the air
quality standard for ozone and particulate matter, EPA included a new provision
related to fine particulates, defined as particles less than 2.5 mm in diameter.
This move triggered all-out resistance from the polluting industries, who
claimed a lack of basis for imposing the added costs. The ensuing legal battles
focused in part on an existential question: should fine particulates exist at all as
a ‘kind’ of entity that EPA, or the publics it seeks to protect, should care about?
If sufficient doubt could be cast on their causal role in pollution-induced disease, then there would be no need to think of the air as containing items of this
specific size suspended within it. Plato thought the philosopher’s task was to
find nature’s joints and cut the pieces apart. If the Six Cities Study did not hold
up under scrutiny, there would be no need to demarcate nature along the
particular joint represented by the entities those studies had identified as significant. The very rationale for fine particulates would cease to exist; they could
go the way of other now forgotten aerial kinds, like the gaseous phlogiston
released by combustible substances.
The second prong of the attack centred on the meaning of the act and
EPA’s discretion to interpret its language. After a long, tortuous conflict, EPA
won on both scientific and legal counts, vindicated in the Supreme Court by
one of the more collegial opinions to emanate from a deeply divided court in
recent years.57 Briefly, the Court denied the claim that the law permitted cost–
benefit analysis for primary air quality standards; and it upheld EPA’s right to
determine what constitutes an adequate margin of safety in standard-setting, a
decision that left intact the status of fine particulates as new regulatory targets.
Some half-dozen years later, air and its components could no longer be
treated as exclusively national concerns, although conflict again arose about
how to characterise and assume responsibility for air’s varied components. In
its 2007 decision in Massachusetts v EPA,58 a challenge to EPA’s refusal to act on
global warming, the Supreme Court divided along its usual ideological lines.
Justice Antonin Scalia’s vigorous comments in oral argument, and eventually in
dissent, demonstrate that the dispute centred on demarcations and on judgements concerning likes and unlikes. But also implicated in the case was a question of sovereignty, and the duty of a US agency to interpret domestic law not
57 Whitman v American Trucking Associations, Inc. (2001) 531 US 457. Justice Antonin Scalia, noted
conservative and no friend of regulation, wrote the opinion of the Court, holding that the scope of
delegation conferred by s 109(b) was not unconstitutional as changed by the petitioners.
58 Massachusetts v Environmental Protection Agency (2007) 549 US 497.
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Jasanoff: Competing imaginaries of global governance
only in accordance with national precedents, but also in the light of standards of
reasonableness tied to an emerging international scientific consensus.
Technically, the case raised two main issues: did the state of Massachusetts
have legal standing to sue EPA on the issue of global warming; and was EPA
justified in its refusal to treat greenhouse gases as air pollutants under the Clean
Air Act? Justice Scalia squarely addressed which entities should be considered
like and unlike in addressing the second issue. During the oral argument, Scalia
tried to draw a sharp distinction between ‘air pollution’—plainly regulated by
the Clean Air Act—and ‘global warming’, which he insisted was an effect on an
atmospheric system that EPA could reasonably decide was not the same as ‘air’,
and hence refuse to regulate. An exchange with James R. Milkey, Assistant
Attorney General of Massachusetts, captures Scalia’s sometimes comical efforts
at boundary drawing between air and atmosphere, and so between domestic
and international jurisdiction:
JUSTICE SCALIA: Mr. Milkey, I had—my problem is precisely on the
impermissible grounds. To be sure, carbon dioxide is a pollutant, and
it can be an air pollutant. If we fill this room with carbon dioxide, it
could be an air pollutant that endangers health. But I always thought
an air pollutant was something different from a stratospheric
pollutant, and your claim here is not that the pollution of what we
normally call ‘air’ is endangering health. That isn’t, that isn’t—your
assertion is that after the pollutant leaves the air and goes up into the
stratosphere it is contributing to global warming.
MR. MILKEY: Respectfully, Your Honor, it is not the stratosphere.
It’s the troposphere.
JUSTICE SCALIA: Troposphere, whatever. I told you before I’m not
a scientist. (Laughter.)
...
MR. MILKEY: Under the express words of the statute—and this is
302(g)—for something to be an air pollutant it has to be emitted into
the ambient air or otherwise entered there.
JUSTICE SCALIA: Yes, and I agree with that. It is when it comes out
an air pollutant. But is it an air pollutant that endangers health? I think
it has to endanger health by reason of polluting the air, and this does
not endanger health by reason of polluting the air at all.59
The Supreme Court decided 5-4 in favour of the petitioners, but Scalia filed a
separate dissent. Here, he again insisted on the plain meaning of the act, which in
59 The full text of the oral argument is available at http://www.supremecourtus.gov/oral_arguments/
argument_transcripts/05-1120.pdf (last visited 21 September 2016).
London Review of International Law Volume 4, Issue 3, 2016 379
his view plausibly placed global warming outside the category of ‘air pollution’. To
support this reading, Scalia relied on the universalism of dictionary definitions:
We need look no further than the dictionary for confirmation that this
interpretation of ‘air pollution’ is eminently reasonable. The definition
of ‘pollute,’ of course, is ‘[t]o make or render impure or unclean.’
Webster’s New International Dictionary 1910 (2d ed. 1949). And the
first three definitions of ‘air’ are as follows: (1) ‘[t]he invisible, odorless,
and tasteless mixture of gases which surrounds the earth’; (2) ‘[t]he
body of the earth’s atmosphere; esp., the part of it near the earth, as
distinguished from the upper rarefied part’; (3) ‘[a] portion of air or of
the air considered with respect to physical characteristics or as affecting
the senses.’ . . . EPA’s conception of ‘air pollution’—focusing on
impurities in the ‘ambient air’ ‘at ground level or near the surface of the
earth’—is perfectly consistent with the natural meaning of that term.
Advocates for a more proactive US climate policy, sensitive to the gravity of the
scientific findings on climate change, applauded the fact that Scalia’s arguments
did not carry the day. But at stake for the late Justice were questions of sovereignty and subjectivity that went beyond the strength of the evidence for climate
change, and hence the circumstances of this case. Paraphrased, Scalia’s dissent
focused on which of two systems of authority should govern when their injunctions are in conflict: the expert, but unelected and extra-constitutional,
knowledge of the Intergovernmental Panel on Climate Change (IPCC), the
global arbiter of binding truths about the climate; or the US EPA’s democratically-sanctioned use of words whose plain meanings are accessible to ordinary
people, including non-scientists such as the Justice himself. How a form of
pollution, or the composition of air, should be understood for legal and
policy purposes depended, as Scalia saw, on the answer to a prior question:
whose universalism counts for more, that of science or that of law? The answer
would determine how a national governmental agency should balance the risks
and benefits of extra-territorial phenomena, which human subjects a nation’s
regulatory regime would protect, and which institutions and discourses—
technical, legal or moral—would dominate in cases of conflict.
Interestingly, on the other side of the world, very similar issues and dilemmas of global governance had been raised, albeit in altogether different
terms and with different implications for responsibility and regulation. In
their 1991 manifesto, Global Warming in an Unequal World,60 Anil Agarwal,
60 A Agarwal & S Narain, Global Warming in an Unequal World (Centre for Science and Environment,
1991), available at http://cseindia.org/challenge_balance/readings/GlobalWarming%20Book.pdf
(last visited 21 September 2016).
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Jasanoff: Competing imaginaries of global governance
founder of India’s influential Centre for Science and Environment, and his then
associate (and later successor) Sunita Narain, also argued against the right of
unelected expert bodies, in their case the Washington-based World Resources
Institute, to define the state of nature in ways that curtail people’s right to
determine the conditions of their own existence. Predating Scalia’s contentions
by almost two decades, Agarwal and Narain opposed a classification system that
dubbed all carbon emissions as equally risky for purposes of globally -uniform
regulation and market transactions. The Indian authors forcefully insisted that
carbon-containing molecules should be distinguished from one another not
merely because of their physical properties, but on the basis of the uses that
had led to their diffusion into the air. ‘Luxury emissions’ of the rich, they
proposed, should not be treated as equivalent to the ‘survival emissions’ of
the poor.61 At stake for them, as for Scalia years and continents away, were
questions about who lays down the ground rules of political subjectivity. Unlike
Scalia, whose concern was that US sovereignty and legal autonomy not be
sacrificed on the altar of a globally-sovereign science, the Indian activists’ complaint was about the extension of a system of science-based, Western reason that
took control of distant lives in the name of a global responsibility that they, on
behalf of their co-nationals, repudiated. ‘Just what kind of politics or morality is
this’, they asked, ‘which masquerades in the name of “one worldism” and “high
minded internationalism”?’62
On the cover of their report, Agarwal and Narain featured the famous ‘Yo!
Amigo!!’ cartoon that has since come to stand for the proposition that all carbon
should not simply be treated as the same carbon for purposes of global climate
policy. Drawn by the American cartoonist Scott Willis, it shows a large man in a
patterned shirt, driving up in a big car belching exhaust fumes, with a licence
plate labelled ‘Developed Countries’.63 The car stops near a small figure of a
peasant with a donkey and an upraised axe, apparently getting ready to chop
down a tree. ‘Yo! Amigo!!’ the driver calls out, ‘We need that tree to protect us
from the greenhouse effect.’ Vehicular emissions, the cartoon implies, should not
in a sane and reasonable world be counted as equivalent to the value of the tree, as
timber or firewood, in a poor man’s domestic economy.
Both Massachusetts v EPA and Global Warming in an Unequal World raised
questions about the relative authority of science and law, and both interrogated
the extra-territorial power of expertise. Both analyses, too, challenged in a
61 Ibid 3.
62 Ibid.
63 S Willis, ‘Doka LCA - Environmental Humour’, available at http://www.doka.ch/humour.htm (last
visited 31 October 2016).
London Review of International Law Volume 4, Issue 3, 2016 381
fundamental way the equivalences taken for granted as natural by developed
country scientists and experts, but seen by dissenters from that consensus as
incorporating tacit (and, to them, unacceptable) norms concerning global
rulership. In the US case, the majority of the Supreme Court held, in effect,
that international scientific opinion imposes constraints on EPA’s power to
reasonably interpret its governing statutes; Justice Scalia argued, to the contrary, that basic sameness–difference judgements (is air the same as the troposphere) should be conducted, first and foremost, within the interpretive
traditions of American law. Agarwal and Narain, for their part, proposed that
an overarching ethical mandate to ensure survival, which some might regard as
a basic human right, should prevent science from decreeing that all carbon
emissions, regardless of their source, are equally risky. Carbon in the earth’s
atmosphere, they suggested, cannot be detached from its social context, as Ian
Hacking said could be done with quarks. Turning carbon emissions, so intimately bound up with human lives and histories, into purely natural kinds
amounted, in their view, to an exercise of non-accountable power.
These debates about the right representation of natural phenomena and
political subjects, occurring in a rich country and a poor one, demonstrate the
gulf between competing visions of natural and social order, as well as the absence of forums in which such profound differences of opinion can be negotiated, let alone harmonised. A point that has gone unnoticed in most of the
literature on the science of climate change is that the structure of the IPCC itself
reflects a theoretical understanding of relations between nature and society that
is not universally shared. The IPCC’s organisation into three working groups,
separating science (WG1), impacts (WG2) and policy options (WG3) into
different discussions, implicitly endorses a realist framing of climate change
that holds natural order apart from its social and historical origins. Whether
this is the appropriate organisational framework for addressing the coproduced ordering of the global environment—entailing the governance of
both human subjects and non-human entities—is not an issue the IPCC has
proved institutionally equipped to debate.
Global forums attentive to the voices of the poor are in particularly short
supply for climate change. At COP 21 in Paris in December 2015, held in the
wake of the terrorist shootings and bombings that had claimed 130 lives just a
month earlier, the French government banned public marches and demonstrations in the interests of public safety. Activists came to the Place de la
République to display through the mute symbolism of paired shoes their
sense of exclusion as living citizens of the world. Empty shoes were eloquent
stand-ins for the missing bodies who could not gather there, but shoes could
not represent the barefoot billions of the world, who by definition could never
be included in the company of the well-shod. These were the poor of whom
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Jasanoff: Competing imaginaries of global governance
Agarwal and Narain had asked almost a quarter-century before, ‘[d]o these
people not have a right to live?’64
Two other examples are worth discussing, if more briefly, because they
illustrate similar dynamics of ordering nature and society on a global scale,
through demarcations and sameness–difference judgements. One derives
from trade law and the other from intellectual property protection. Both, however, involve the law’s reliance on science to draw boundaries between the
natural and the social and between like and unlike. Both, too, raise basic questions of global political subjectivity: whose voices count, whose arguments will
be heard, and whose norms prevail?
GMOs AND THE GLOBAL SINGLE MARKET
The first case concerns the treatment of genetically-modified organisms
(GMOs) by the WTO. Trade cases are well suited to the kind of analysis
proposed here, because trading regimes centrally depend on distinguishing
same from different in handling discrimination complaints. Governments
may not discriminate against other nations’ products by setting up trade barriers that privilege their own. But for such a provision to make sense and be
enforceable, the products involved must all belong to the same category, or at
least be recognised as such in law. Of course, this has led to a certain amount of
ingenuity in cross-national product differentiation practices, but the basic principle remains that like commodities must be treated alike when deciding
whether they should move freely across national borders. Once likeness has
been established, only a scientifically reliable demonstration of possible harm
will justify differential treatment.
These principles came under challenge in the Biotech Products case, a significant dispute that arose under the Agreement on Technical Barriers to Trade
(TBT Agreement) and the Agreement on the Application of Sanitary and
Phytosanitary Standards (SPS Agreement). Both agreements permit national
governments to restrict the import of products that threaten their citizens’
health and safety, but both stipulate that any exceptions must be justified
through scientific risk assessment.65 The treaty language presumes risk
64 Agarwal & Narain (1991) 3.
65 The relevant sections of the two agreements read as follows:
‘TBT Agreement, Article 2.2: Members shall ensure that technical regulations are not prepared,
adopted or applied with a view to or with the effect of creating unnecessary obstacles to international
trade. For this purpose, technical regulations shall not be more trade-restrictive than necessary to
fulfil a legitimate objective, taking account of the risks non-fulfilment would create. Such legitimate
objectives are, inter alia: national security requirements; the prevention of deceptive practices;
London Review of International Law Volume 4, Issue 3, 2016 383
assessment to be impersonal and apolitical, and hence an objective foundation
for policy. This is consistent with the long-standing US treatment of risk assessment as a science detached from politics, capable of producing universal,
translocal forms of knowledge.66 Contending that the European Union (EU)
had failed to demonstrate a scientific basis for its objections, the US, Canada
and Argentina filed an action against Europe on 13 May 2003 for maintaining
an illegal moratorium against American-made GMOs.
American policymakers and the biotech industry well understood that
GMOs would circulate freely in world trade only if the assessments supporting
them also enjoyed universal acceptance as science. Their public statements repeatedly took the EU to task for forsaking science in contravention of applicable
treaty obligations. But the legal complaint that treaty-sanctioned demarcations
were not being honoured slipped seamlessly into charges of political unreason. At
the 2000 Annual Meeting of the American Association for the Advancement of
Science, Secretary of State Madeleine Albright levelled a thinly-veiled accusation
of irrationality against Europeans: ‘But science does not support the Frankenfood
fears of some, particularly outside the United States, that biotech foods or other
products will harm human health’.67 Press releases from the US Trade
Representative’s office in 2003 similarly declared that the moratorium was not
only illegal but ‘non-science-based’.68 That large numbers of Europeans did not
want their agricultural products to be genetically modified was irrelevant to an
imaginary of free trade in which ‘sound science’ was necessary and sufficient to
establish the safety of GMOs, and thereby to eliminate any further objection to
their circulation in international commerce. Not only did the trade regime take
protection of human health or safety, animal or plant life or health, or the environment. In assessing
such risks, relevant elements of consideration are, inter alia: available scientific and technical information, related processing technology or intended end-uses of products.’ (emphasis added)
‘SPS Agreement, Article 2.2: Members shall ensure that any sanitary or phytosanitary measure is
applied only to the extent necessary to protect human, animal or plant life or health, is based on
scientific principles and is not maintained without sufficient scientific evidence, except as provided for
in paragraph 7 of Article 5.’ (emphasis added).
66 This view received strong support from a report of the National Research Council, Risk Assessment in
the Federal Government: Managing the Process (National Academy Press, 1983). The report’s attempted separation of science from politics and values has been widely recognised as untenable. See,
e.g., S Jasanoff, ‘American Exceptionalism and the Political Acknowledgment of Risk’ 119 Daedalus
(1991) 61.
67 MK Albright, ‘Plenary address’, AAAS Annual Meeting (‘Science in an Uncertain Millennium’),
Washington DC, 21 February 2000, available at http://secretary.state.gov/www/statements/2000/
000221.html (last visited 21 September 2016).
68 United States Trade Representative, ‘Press Release’, Executive Office of the President, Washington
DC, 13 May 2003, available at http://www.ustr.gov/releases/2003/05/03-31.htm (last visited 21
September 2016).
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all concerns except those based on risk assessment off the policy table; it also, and
simultaneously, constructed subjects evaluating their food supply on any other
logics of acceptability as fearful, unreasoning and irrational.
This framing of the Biotech Products dispute struck many as intellectually
flawed, as well as deskilling of democracy. In a regime that officially only recognises disputes among states, however, it was not obvious how alternative
views, even on fundamental issues of scientific and legal interpretation, could
be brought back into the debate. An experiment in global democracy was called
for, and I undertook that venture with four colleagues: David Winickoff, then a
postdoctoral fellow at the Harvard Kennedy School, and with me the only other
lawyer; two sociologists, Lawrence Busch, an expert on food and agriculture
from Michigan State University, and Brian Wynne, a sociologist of science at
Lancaster University; and Robin Grove White, an environmentalist and policy
adviser who, like Wynne, was also a professor at Lancaster University. Our
exercise in bottom-up activism was at the same time a performance of coproduction, since our normative claim of standing was grounded in an epistemic position rather than a political affiliation. My colleagues and I were
convinced that the petitioners’ position on sound science was itself scientifically
questionable, and inconsistent with decades of scholarship on the nature of risk
assessment. As contributors to the social studies of risk from multiple disciplines, we wanted to communicate our findings concerning the deeply judgemental and culturally-situated character of the ‘science’ of risk analysis, and to
ask the WTO to adjust its dispute resolution practices accordingly.
At the same time, we wanted to test the limits of our own political capacity,
as concerned citizens, in a regime of global governance. Could we, as social
science experts from elite Western institutions, get the ear of the WTO? Could
we hold the WTO accountable to expert knowledge that we believed was highly
relevant to this case and yet in danger of being ignored by the parties and the
WTO’s dispute resolution panel? We probed these questions through an amicus
brief laying out our arguments about the need for a more flexible interpretation
of terms like ‘scientific principles’ and ‘sufficient scientific evidence’ in the
WTO’s treaty framework.69 The fate of this effort sheds light on the highentry barriers against voices questioning dominant knowledge practices and
rules of reasoning in the world of global markets and trade policy.
Our first hurdle was procedural. There is no formal mechanism by which
parties other than concerned national governments can participate in a WTO
dispute settlement process. At the time of our filing, the WTO website indicated
69 ‘The Academic Experts Brief for the WTO GMO Dispute’ (30 April 2004). The brief was also
published as a law review article: David Winickoff et al., ‘Adjudicating the GM Food Wars:
Science, Risk, and Democracy in World Trade Law’ 30 Yale Journal of International Law (2005) 81.
London Review of International Law Volume 4, Issue 3, 2016 385
that amicus briefs by third parties were a contested issue and there was no
formal procedure for submitting them. In part, the lack of consensus reflected
the heterogeneity of legal cultures represented at the WTO: amicus briefs are a
recognised form of intervention in common law systems such as that of the US
but they have no comparable status in civil law. Accordingly, the WTO did not
officially encourage the practice but left it up to each panel to decide in a given
case whether or not to accept unsolicited amicus submissions.70
Looking back, one must conclude that our experiment in co-production—
as subjects representing a body of essential knowledge and also a class of persons
normally excluded from WTO proceedings—achieved at best limited success.
Our brief was mentioned in two footnotes in a decision comprising more than a
thousand pages, and then only to say that it had been accepted but not relied on.
The footnotes read as follows:
7.10 In the course of these proceedings, we received three unsolicited
amicus curiae briefs: on 6 May 2004 we received an amicus curiae brief
from a group of university professors; on 27 May 2004 we received an
amicus curiae brief from a group of non-governmental organizations
represented by the Foundation for International Environmental Law
and Development (FIELD); and on 1 June 2004 we received an amicus
curiae brief from a group of non-governmental organizations represented by the Center for International Environmental Law (CIEL).
These briefs were submitted to us prior to the first substantive meeting
of the Panel with the Parties, and the Parties and Third Parties were
given an opportunity to comment on these amicus curiae briefs.
7.11 We note that a panel has the discretionary authority either to
accept and consider or to reject any information submitted to it,
whether requested by a panel or not, or to make some other
appropriate disposition thereof. In this case, we accepted the
information submitted by the amici curiae into the record. However,
in rendering our decision, we did not find it necessary to take the
amicus curiae briefs into account.71
70 WTO procedures still do not specifically provide for amicus briefs but the language now is marginally more inviting: ‘According to the Appellate Body, the panels’ comprehensive authority to seek
information from any relevant source (Article 13 of the DSU) and to add to or depart from the
Working Procedures in Appendix 3 to the DSU (Article 12.1 of the DSU) permits panels to accept
and consider or to reject information and advice, even if submitted in an unsolicited fashion’. WTO
Dispute Settlement System Training Module, ch 9.3, Amicus Curiae submissions, available at https://
www.wto.org/english/tratop_e/dispu_e/disp_settlement_cbt_e/c9s3p1_e.htm (last visited 21
September 2016).
71 WTO, Dispute Settlement Reports 2006, vol 4 (Cambridge UP, 2006) 1263-64 (footnotes omitted,
including a note listing us by name).
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Jasanoff: Competing imaginaries of global governance
Both note 7.10 and the dispute settlement training module on amicus curiae
submissions, however, explicitly recognise as legitimate the class of voices we
represented—university professors. Buried within the masses of documentation
and verbiage generated by the Biotech Products case, the acknowledgment that
university professors may have valid knowledge to contribute, beyond that
provided by parties and political partisans, seems modest vindication.
On 29 September 2006, the WTO panel issued its long-awaited report
holding that Europe had maintained a moratorium on the approval of
GMOs between 1999 and 2003, and that this had led to undue delays in product
approval. Formally, this was a victory of sorts for the US and its producer
country allies. Subsequent policy evolution within the EU, however, suggests
that the broader political point we sought to raise in our brief did indeed have
to be respected. Specifically, it proved impossible for the EU to ignore the
strong currents of public opinion in Member States that opposed the introduction of GMOs on grounds other than safety. By 2015, the EU had carved out a
domain of exception where national governments, mindful of their subjects’
preferences, could continue to exercise limited sovereignty with regard to
GMOs. Under Directive 2001/18/EC, legal authorisation of GMOs, advised
by a centralised risk assessment process, remains the obligation of the centre;
but, under Directive (EU) 2015/412,72 decisions to cultivate or not cultivate
authorised organisms are delegated to Member States. This novel partitioning
of regulatory responsibility recognises, by creating in effect a new line of demarcation, that the safety claims of science, centred on crop-specific risk assessments, may not override national sensibilities on whether or not to admit
GMOs into local agricultural practices. Although science may declare that
GMOs are as safe as (and, in this respect, the same as) crops bred through
traditional means, that judgement no longer overrides EU citizens’ right to
decide that they do not wish to countenance the cultivation of such crops
within their national territory and their familiar landscapes.
GENERIC DRUGS AND NATIONAL SOVEREIGNTY
The third example arises from intellectual property law as it applies to generic
drugs—non-brand named drugs typically produced by the pharmaceutical industry in developing countries, and sold off-patent at a fraction of the cost of the
original. Writing about the generics industry in Latin America, the
72 ‘Release into the environment of genetically modified organisms’, 12 March 2001, available at http://
eur-lex.europa.eu/legal-content/EN/TXT/?uri¼uriserv:OJ.L_.2001.106.01.0001.01.
ENG&toc¼OJ:L:2001:106:TOC (last visited 21 September 2016).
London Review of International Law Volume 4, Issue 3, 2016 387
anthropologist Cory Hayden argues that the advent of generics under the rubric
‘the same but cheaper’73 is simply the other face of the production of patented
pharmaceuticals; indeed, there would most likely have been no such category in
the world as generic drugs, she suggests, in the absence of a pharmaceutical
industry whose profit margin is secured through intellectual property protections
that guarantee a high rate of return on an original molecular breakthrough.74
The story I tell here centres on a lawsuit in India involving the anticancer
drug Gleevec, a crystalline form of the compound ‘imatinib’ manufactured by
the Swiss pharmaceutical giant Novartis. Indian firms began producing and
marketing a generic version of Gleevec at a time when India, like many developing countries, did not recognise patents on pharmaceuticals. That situation changed in 1994, with the negotiation of the Agreement on Trade-Related
Aspects of Intellectual Property Rights (TRIPS) at the Uruguay Round of the
General Agreement on Tariffs and Trade (GATT). Following TRIPS, WTO
members were required to harmonise their domestic laws to standards already
current in the West: more particularly, patents had to be granted for all technological inventions, with no exceptions for categories such as pharmaceuticals.
The Gleevec case took shape during the period when the Indian government was
bringing its existing patent law into compliance with TRIPS. Novartis had
applied for a patent on Gleevec twice, with somewhat different product specifications, at the beginning and end of this transition period. The newly patented
drug would have displaced the generic version available to Indian patients and
raised the price 10 times higher. Because of its timing during a period of legislative flux, the precise circumstances of this case are unlikely to be repeated for
many other drugs, but the issues it raised about the law’s role in making both
markets and subjects nonetheless deserve closer analysis.
The Gleevec litigation focused on questions of similarity and difference on
three levels: first, and most technically, was the Novartis drug a new product or
was it the same as one whose patent had lapsed; secondly, could the purposes of
patent law be treated as everywhere the same, given radical inequalities in the
global political economy; thirdly, and most politically, was a generic drug
merely ‘the same but cheaper’, or did it fit into an entirely different imaginary
of medical invention and its relations with sick bodies? With respect to the first
issue, the Indian Supreme Court ruled in 2013 that Gleevec did not meet section
3(d) of the new Patents Act, which guards against patent renewals based on
73 C Hayden, ‘A Generic Solution? Pharmaceuticals and the Politics of the Similar in Mexico’ 48
Current Anthropology (2007) 475.
74 C Hayden, ‘No Patent, No Generic: Pharmaceutical Access and the Politics of the Copy’, in
M Biagioli, P Jaszi & M Woodmansee (eds), Contexts of Invention (Chicago UP, 2008).
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minor improvements that do not confer added therapeutic benefits—a practice
known in the industry as ‘evergreening’.75 In the court’s opinion,76 Novartis
had failed to show that the form of Gleevec it sought to patent was any more
therapeutically efficacious than the cheaper off-patent versions already on the
market. Novartis was merely evergreening its older product.
On the second and third issues, the Supreme Court went out of its way to
underscore the specificity of the connection between political values and intellectual property protection, and the consequent ethical mismatch between developed and developing country regimes with respect to patent rights. The
court cited with apparent approval a 1957 report on patent reform written
by another Indian judge:
Justice Ayyangar observed that the provisions of the Patent law have to
be designed, with special reference to the economic conditions of the
country, the state of its scientific and technological advancement, its
future needs and other relevant factors, and so as to minimise, if not to
eliminate, the abuses to which a system of patent monopoly is capable
of being put.77
Although Justice Ayyangar’s analysis was mere dictum for purposes of the
Gleevec litigation, it is telling that the Indian Supreme Court refused to
accept the claimed neutrality of patent law (as merely advancing innovation)
and accepted instead that such laws should respect a country’s economic conditions. One aspect of the decision merits special emphasis in the context of this
article. As noted above, the Indian courts had to consider whether the formulation Novartis was seeking to patent was the same as or different from one
whose patent had already expired. In ruling against Novartis on this point, the
court held that the relevant demarcation criterion was increased health benefit,
not ease of delivery into bodies or any other technical improvement. This dispensation substituted a judicial standard for determining when meaningful
innovation has occurred in place of one the manufacturer proposed. In this
way, the Indian Supreme Court challenged the power of pharmaceutical companies to maintain market share by claiming to be introducing a new product
without discovering significantly new therapeutic pathways. The judgment
underscored, though it did not fundamentally disrupt, the role of existing
patent law in reinscribing global inequalities in access to medicines. To be
75 According to s 3(d), ‘The mere discovery of a new form of a known substance which does not result
in the enhancement of the known efficacy of that substance’ does not entitle the manufacturer to a
patent.
76 Novartis v Union of India (2013) 6 SCC 1.
77 Ibid para. 36.
London Review of International Law Volume 4, Issue 3, 2016 389
sure, lowering the price of pharmaceuticals, through the manufacture of generics, also gets more drugs into bodies. Yet social differences among human
subjects, such as their ability to pay, play no role in the design of patent policy
for drugs, any more than such concerns mattered in creating a single global
market for greenhouse gases.
Novartis’s loss before the Indian Supreme Court settled the patentability of
Gleevec but it left open a larger question. How much variance between national
patent systems is warranted if one accepts that intellectual property law is not
value-free but articulates the political and economic preferences of particular
nations or regions? A signal of sorts came in September 2014, when Gilead
Sciences, the California-based maker of a costly drug for hepatitis C, signed a
licence with seven Indian manufacturers of generic drugs to produce a stratified
global pricing system. Under that agreement, Gilead would sell its drug in India
for 10 dollars per pill, 1/100 the price the company charges in the US. In return,
the Indian manufacturers would pay a licensing fee to Gilead but continue
marketing their generic versions in poor countries where patients could not
afford the high-priced pills. This agreement acknowledged the need for stratified pricing of expensive drugs; it was, however, an ad hoc, private arrangement
between two pharmaceutical companies, without value as legal precedent for
other drugs, firms, or patient populations. Further, in a private conversation a
year after the Gleevec judgment, a Novartis executive told me that the decision
was a disaster for India because no one, not even the country’s domestic companies, would invest in a context that left their profitability so unsettled and
insecure. Time will test the quality of this prediction.
CONCLUSION
We stand today in a constitutional moment no less transformative than the one
that marked the age of revolutions from the end of the eighteenth to the middle
of the nineteenth century. The watchword for the birth of democracy in that
earlier revolutionary era was liberty, and people knew very clearly whose yokes
they wanted to cast aside. America’s Declaration of Independence reads like a
highly personalised bill of attainder, a list of grievances against a monarch who
had failed, through ‘a history of repeated injuries and usurpations’, to meet his
constitutional obligations towards his subjects. The French Declaration of the
Rights of Man also embraced liberty as a fundamental right, constrained only by
the people’s general will as expressed in law.
In our era, the old Westphalian order of nation states is breaking down in
favour of a reconstituted order in which human societies are learning to see
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themselves as global subjects, buffeted by forces of science, technology, economics and politics that often arrive from outside the borders of nation states.
In this period of increasingly global exchanges, mediated by impersonal technical expertise, sovereign authorities have become more distant and anonymous, and people often do not recognise how profoundly expert logics are
shaping the notions of possibility and progress. A critical perspective on the
emerging epistemologies of globalisation, mingling the conceptual repertoires
of science and technology studies and of law, holds special promise in this
moment. It illuminates the demarcations and sameness–difference judgements
that are made by technical experts and underwritten by law to sustain new
forms of global governance. It illustrates how key categories of social and natural order are co-produced, in a tacit collaboration between law and science,
and how they come to be taken-for-granted.
In three case studies of global governance— climate change, world trade
and generic drugs—we have seen that when technology, economy and law come
together to empower the performance of an imaginary of globalism, power is
transferred from traditional representative bodies such as national parliaments
to global forums sealed off from normal political legitimation. To preserve the
technical logics that govern such spaces, political subjectivity is redefined and
recast in terms that diminish agency: as when a carbon market that does not
recognise the historical origins of global warming imposes similar burdens on
all present-day emitters, regardless of their relative contributions to the problem; or when opponents of GM agriculture are stereotyped as anti-science and
denied a voice in challenging the global trading regime; or when intellectual
property regimes impede the production of generic drugs that would serve the
needs of sick people in poor countries. In each case, we also saw how determined legal and political action can force a rethinking of demarcations and
classifications that seem too fixed to move, restoring a space for alternative
imaginaries—as for example, in the EU’s recognition that safety assessments
need not determine whether GMOs must be cultivated, in defiance of public
values and opinion.
All three cases discussed above indicate that the doors of the law are not
easily opened to new ways of reasoning that challenge established precedent or
practice. But the yearning for voice and representation lives on as a universal,
stronger even than the disciplining forces of science and technology, and
ultimately the urge for democratic self-expression must have an impact on
ideas of subjectivity and lawful global governance. During the 2014 People’s
Climate March in New York, a photograph by Joshua Bright in the
New York Times showed a little girl dressed in yellow with a white sash,
carried on a man’s shoulder, waving aloft in one arm a baton with an orange
London Review of International Law Volume 4, Issue 3, 2016 391
banner.78 In colour and composition, the photograph bore an uncanny resemblance to Eugène Delacroix’s famous painting of liberty leading the people, only
this time the figure of hope arose from the legions of the young whose lives will
be most affected by the changing climate. Perhaps this child’s banner, too, can
be seen as a latter-day oriflamme, the symbol of fierce commitment carried into
battle by the medieval kings of France. At any rate, the picture invites us to recall
that the spaces of critique remain as open and expansive as the face of the
planet. Our task—as citizens, STS scholars or legal advocates—is to occupy
the Earth’s innumerable, beckoning streets in search of just ways to refashion
the law.
78 LW Foderaro, ‘A Demonstration for the Planet in Washington’, New York Times, 21 September
2014, available at http://www.nytimes.com/2014/09/22/nyregion/new-york-city-climate-changemarch.html?_r¼0#slideshow/100000003129023/100000003129318 (last visited 21 September 2016).