Senior Lecturer in The City Law School, Dr Elaine Fahey, argues that there is no consensus at the global level on what it means to be an actor engaged in rule-making, despite its centrality to discussions on rule-making, power and influence.
By Dr Elaine Fahey, Senior Lecturer, The City Law School
So where precisely do all of the rules affecting our daily lives really come from?
Rules that govern the internet are made by a private company in California (ICANN). Global banking standards come from a task force in Switzerland, the Financial Action Task Force (FATF). Select companies set food ethics standards through market share, as do international bodies (e.g. CODEX). Private certification bodies in the US play a critical part of global data privacy for social networks.
Part of the problem of really understanding this phenomenon is that many such essential rules of modern life are not strictly speaking ‘law’ or ‘laws’ and don’t even come from a specific parliament.
Some of the most powerful and independent courts in the world, for example, the EU’s Court of Justice, are not, strictly speaking, rule-makers or law-makers. Lobbyists may generate many important laws and also may not be so classed. Neither are academics, despite the scientific obligations to generate impact in and through rule-making. Our ability to analyse this is often limited because of our own human disciplinary bias or even limited knowledge. How much of life actually happens beyond the State? What subject supplies the best means to understand this? What precisely is it? Just who are the actors that we need to understand? ‘Postnational rule-making’ is a multi-disciplinary term of art which may capture a vast range of such rule-making, because it is ‘beyond the Nation State’. It may capture EU and Public International law in their entirety – and beyond. It also affords a useful tabula rasa, or blank slate, for us to explore ideas around the issues.
By focussing upon the ‘doers’ we get further understanding by using this tabula rasa. The idea of ‘actors’ is critical to the theorisation of power, autonomy, influence and even legitimacy in this area.
Yet there is no consensus on a global level on what it means to be an actor engaged in rule-making, despite its centrality to discussions on rule-making, power and influence.
Rule-making beyond the Nation State, it is argued, requires a multi-disciplinary approach that seeks out new case studies lying in the blind spots of our understanding of rule-making. It also requires us to focus upon the limitations of our understanding of actors.
A new multi-disciplinary edited volume recently published by Routledge explores these blind spots in our understanding of actors in rule-making beyond the Nation State in the areas of EU and Public International Law.
The book examines many of actors that may be readily overlooked by formalism and doctrinalism, such as lobbyists, transnational parliaments and academia.
It captures new practices and themes and reflects upon the tensions that they pose for old ‘lenses’ by drawing together scholars, senior and junior of EU law, Public international Law, International relations, the doctrinal and non-conventional studies, and those focussed upon Asia and South America, as much as the EU, and forms part of a vibrant future research agenda.
Term of art
A term of art is a word or phrase that has a particular meaning. Terms of art abound in the law. For example, the phrase double jeopardy can be used in common parlance to describe any situation that poses two risks. In law, double jeopardy refers specifically to an impermissible second trial of a defendant for the same offense that gave rise to the first trial.