This seminar aims at reflecting Inger Johanne’s legal internationalism, legal theoretical
accomplishments and her wonderful way of connecting researchers of many kinds. During the course of the seminar Inger Johanne is invited to comment on each of the contributions.
Program
0830-0900 Coffee, tea
0900-0915 Dag Michalsen (Oslo): Seminar on the occasion of Inger Johanne Sand 70: Welcome
0915-0945 Panu Minkkinen, (Helsinki): Sociological Constitutionalism versus Constitutional Ethnography
0945-1015 May-Len Skilbrei (Oslo): Forging ‘common European values’ on rocky ground
1015-1045 Jørn Øyrehagen Sunde (Oslo): The Children's Acts of 1915 - Changing the concept of right in Norwegian law
1100-1130 Jon Christian Fløysvik Nordrum (Oslo): Is the present-day use of public committees in legislative processes suitable for managing complexity?
1130-1200 Ole Hammerslev (University of Southern Denmark): Navigating in complexity: Danish welfare workers’ legal consciousness in a decentralised administration of public welfare
1200-1300 Lunch (in “The Stuene”)
1300-1330 Hans Petter Graver (Oslo): What is a legal hero?
1330-1400 Nicola Lacey (London): Feminist perspectives on law in the era of transnational legal orders
1400-1430 Kristin Bergtora Sandvik (Oslo): Taking the Metaverse seriously: violence, marginalization and opportunity
1430-1500 Katharina Ó Cathaoir (Copenhagen): Law and the Health Challenges of the Future
1500-1530 Coffee Break
1530-1600 Gunnhild Storbekkrønning Solli/ Guri Hjallen Eriksen (Ås/Oslo): The concept of communal rights to nature in modern environmental law and implications for natural resources management
1600-1630 Mikael Rask Madsen (Copenhagen): Transnational Law and Governance
1630-1700 Trude Myklebust (Oslo): When law is the complexifier. Two examples from private and public sector
The seminar will be followed by a festive dinner for invited guests.
Contributiors abstracts
Panu Minkkinen, Professor of Jurisprudence, Faculty of Law, University of Helsinki. Sociological Constitutionalism versus Constitutional Ethnography
One area of specialisation in which Inger-Johanne Sand has excelled internationally can, perhaps, be called ‘sociological constitutionalism’. Sand has actively participated in developing such a discipline, especially in European transnational contexts, together with peers like Gunther Teubner and Chris Thornhill. My presentation questions whether the discipline’s sociological nomenclature is enough to secure a ‘social’ or ‘societal’ dimension that can differentiate it from a more legally and conceptually-oriented constitutional theory. The paper suggests adopting instead a qualitative approach that could be called ‘constitutional ethnography’.
May-Len Skilbrei. Professor. Department of Criminology and Sociology of Law. University of Oslo. Forging ‘common European values’ on rocky ground
As international bodies increasingly regulate matters that used to be within the remit of domestic legislation, their legitimacy is drawn differently. In this paper I will present research that I am conducting together with Dr. Sharron FitzGerald on an ongoing conflict within the European Union (the EU) over the EU’s ratification of the Council of Europe Convention on preventing and combating violence against women and domestic violence (the Istanbul Convention). This conflict stems from disagreements over the EU’s right to regulate on matters to do with gender and sexuality and has been long in the making. The EU has since its inception engaged in a stepwise expansion and is now a broad normative community. That the goal of an ‘ever closer union among the peoples of Europe’ is realized by establishing gender equality and LGBT rights as ‘common European values’ is resisted by several Member States. The ongoing conflict within the EU over the Istanbul Convention is a suitable point of departure for an investigation into the negotiated character of the relationship between nation states and supra-national bodies.
Jørn Øyrehagen Sunde, Professor, Institute of Public Law Faculty of Law, University of Oslo. The Children's Acts of 1915 - Changing the concept of right in Norwegian law
In 1763 the Norwegian government introduced a right for mothers who gave birth outside wedlock to claim child support from the child's father. The aim of the legislation was to eliminate the large problem of infanticide by making mothers economically able to take care of their childer. The system for child support set up proved inefficient, and was improved in 1821, 1892 and 1915. The legislation in 1915, was however, very different from the previous one by not alone focusing on the economic conditions for children born outside wedlock, but also their social status. By this, the government's focus shifted from a right to economic support to a right to be in civil society on equal terms. This made the Children's Acts of 1915 very different from other social legislation at the time, and are pointing forward the social legislation to come.
Jon Christian Fløysvik Nordrum, Associate professor, Institute of Public Law, Faculty of Law, University of Oslo. Is the present-day use of public committees in legislative processes suitable for managing complexity?
Inger Johanne Sand points out in her book Styring av kompleksitet that "legislative processes are often about complex and unclear matters and about transformative processes that are unfinished". In addition, she asks what role the civil service and public committees play in the decision-making processes. Committees and the documents often stand between subjects and politics, legal policy and legal application. She points out that "open legal texts which prepare more fragmented, rhetorical and unclear documents help to break down the distinction between the political legislative processes and the interpretation and employment processes". In my contribution, I would like to look at the development of the use of public committees in the legislative process since Inger Johanne’s book was published, and assess the development in the light of Sand's observations.
Ole Hammerslev. Professor, Law in Society. Department of Law. University of Southern Denmark. Navigating in complexity: Danish welfare workers’ legal consciousness in a decentralised administration of public welfare
In her influential book Styring av kompleksitet (Sand 1996), Inger-Johanne Sand examines the transformation of the organisation of the Norwegian welfare state and welfare law. She shows how social law as framework law delegates the responsibility of handling welfare tasks to the municipalities and even to private actors. Framework law invites for professional discretion, stressing welfare professionals’ role as central actors in the process of delivering government services. Against the background of Sand’s findings, this paper examines how welfare professionals’ perceptions and experiences of law influence their everyday work in a framework law context. Through the extreme case of youth homelessness and semi-structured interviews with welfare professionals working with young people experiencing homelessness, the paper argues that welfare professionals’ legal consciousness is fluid and depends on framework law’s construction of the specific social situations and relations. (Co-author Stine Piilgaard Porner Nielsen).
Hans Petter Graver. Professor, Institute of private law, Faculty of Law, University of Oslo. What is a legal hero?
We never know when our protection by the law depends on judges of integrity and conscience, who stand up for the rule of law. Terrible things may happen even in the self-satisfied legal orders of the Western legal tradition of the twenty-first century. The US and the Scandinavian Countries were in the forefront of practising forced sterilisation of “feeble minded” to clear society of the production of social problems in the nineteen-twenties and thirties. This served as an inspiration and excuse for the legislation of the Nazis that took the measures a step further.
Judges who stand up for the rule of law in situations where the rule of law is threatened by those in power and by public opinion and sometimes even by the law are heroes. But for the fact that they are acting in the capacity of officers of state power, one could in some situations label their action as civil disobedience. Common to all is that they stand up to power, and do not accept to become a servant of the state and a tool of oppression. In some cases, they defend the law where the state authorities have violated it. In other cases, they opposed a law that has become immoral and oppressive. A third group is when the judge engages in a battle against the other state authorities over the development of the law.
Decent and courageous people deserve not to be forgotten. It is important to study their stories because they show by their examples that it is possible to go against the flow, even within such a disciplining institution as the law. This is an important inspiration for anyone who may find themself in difficult situations where the job and role as a judge challenges their conscience. Examples show that doing the right thing is within the realm of the possible, even if this is denied by the force of the law and the power of the mighty. Also, a discussion of examples can raise our ethical awareness. Finally, examples of opposition to power can be an inspiration to others, not just lawyers, but anyone in positions of power in a state that opposes justice.
Nicola Lacey. School Professor of Law, Gender and Social Policy, London School of Economics, London. Feminist perspectives on law in the era of transnational legal orders
In homage to Inger-Johanne Sand’s work on both legal theory and national and transnational legalities, my paper will revisit feminist and other critical debates about the assumptions underlying the construction of the legal subject and the nature of legal method. It will consider in particular their implications in a world of transnational legal order interacting with national legal orders to produce criminal justice ordering. How far have the lessons of feminist and critical race theory been absorbed within scholarship on the upshot of transnational and international legal ordering? How far have the concerns of those theoretical paradigms shaped contemporary conceptions of the regulatory modalities and priorities of legal systems? And how far have transnational legalities influenced or re-shaped the questions confronting critical scholars?
Kristin Bergtora Sandvik, Professor. Institute of Criminology and Sociology of Law. University of Oslo.Taking the Metaverse seriously: violence, marginalization and opportunity
The term ‘Metaverse’ originated with ‘Snow Crash,’ a 1992 dystopian novel by Neal Stephenson. The Metaverse is variously defined as for example ‘a virtual-reality space in which users can interact with a computer-generated environment and other users’ or a ‘spatial computing platform built on blockchain that acts as an alternative to or a replica of the real world.’ Recently, I asked three thought leaders in my private sector network whether they knew anyone who was working seriously and critically with the Metaverse. The replies came immediately: ‘the Metaverse has been gone from my radar after Zuck decided to realize the Metaverse dystopia/parody’ declared one of my contacts. This was followed by the second, who agreed: ‘Ditto. We are not talking about the Metaverse at work.’ The third observed ‘I have not registered anyone willing to spend time or money on the Metaverse. Personally, I don’t understand why this should appeal to anyone at all’. This skepticism resonates with media critical of techno hypes generally and Facebook in particular. A recent Wired article noted that:
‘It's been nearly six months since Facebook announced it was rebranding to Meta and would focus its future on the upcoming “metaverse.” In the time since, what that term means hasn't gotten any clearer… On the other hand, there's a lot of marketing hype (and money) wrapped up in selling the idea of “the metaverse.’
Yet, beyond the irritation with technological utopianism, the conceptualization of the Metaverse as a space – an actual social field – that provides ‘digital experiences’ in the form of ‘key civilizational aspects like social interactions, currency, trade, economy, and property ownership’ suggests that the Metaverse is now also an emergent regulatory object in need of serious critical attention. In some interdisciplinary fields concerned with justice and violence, notably criminology and human rights scholarship and practice, this attention is now forthcoming. However, in the context of peace and conflict studies broadly defined, so far no focus has been given to how the Metaverse reshapes legacies and practices of friction, violence, and exclusion – or the mechanisms to deal with and overcome friction, violence, and exclusion.
To begin to bridge that gap, this paper uses armed violence and indigenous sovereignty as prisms for reflecting on the Metaverse and its relationship to concepts of peace and justice. First, I consider what war and mass-violence would look like in the Metaverse and how traditional institutional and normative responses such as international humanitarian law or transitional justice will be challenged. Second, I discuss the ramifications for vulnerable groups –and how the Metaverse is becoming part of the historical terrain for oppression and struggle but also how something ‘is new’ both in terms of new forms of marginalization but also how the Metaverse can become a source of financial opportunity, cultural empowerment and social mobilization. I use Sápmi as case example. Third, I circle back to what this means for peace and conflict studies research. The paper proceeds as follows: I begin with a state of the art, mapping emergent thematic and disciplinary engagements with the Metaverse. I then discuss the two case examples of armed violence and Sápmi. Finally, I map out a preliminary research agenda for peace and conflict studies.
Katharina Ó Cathaoir. Associate Professor, University of Copenhagen, Faculty of Law. Law and the Health Challenges of the Future
In January 2020, the World Health Organization (WHO) released a list of urgent health challenges for the next decade, which included tackling the climate crisis, preparing for epidemics, addressing the global health worker shortage and harnessing new technologies. Unbeknownst to the majority of the world, the COVID-19 virus was already spreading and set to become a pandemic that would cost millions of lives and bring severe economic, social and political upheaval.
A growing body of international, European and national laws governs these challenges, which remain urgent. While the challenges are approached in silos, they are in fact intertwined. For example, new technologies are often touted as a response to tackling healthcare worker shortages. Yet, storage of massive amounts of data contributes to climate change. Meanwhile, climate change leads to displacement and people living in closer contact with animals, increasing opportunities for zoonotic leaps and thereby pandemics.
In this talk, I will reflect on the fragmentation of international law and the lack of coherent standards to address these mammoth challenges. Do global health institutions like the WHO have the necessary legitimacy to tackle these crises? Can healthcare technologies be regulated in an effective and sustainable manner? In a time of partisanship and self-interest, how can the states of the future place health front and centre?
Gunnhild Storbekkrønning Solli, Associate professor Norwegian University of Life Science (NMBU), Institutt for eiendom og juss / Guri Hjallen Eriksen, Researcher, SALT (Svolvær).The concept of communal rights to nature in modern environmental law and implications for natural resources management
The concept of communal ownership of natural resources is ancient. The Institutes of Justinian categorized communal ownership of man as res communis and stated that "by the law of nature these things are common to mankind - the air, running water, the sea, and consequently the shores of the sea." The concept that rights to nature is held by citizens of a land, a community or the humankind is more than ever relevant in modern environmental law - in national and international law. On national level, the state acts as a trustee of the communal natural resources and in charge of managing the resources on behalf of the society. Can the concept of communal ownership constrain the state's role in exercising the management and if so - how and to what degree? The article examines the state's role in management of communal owns natural resources in Norway by looking into the examples of the wild living marine resources and the hydropower.
Mikael Rask Madsen. Professor & Director of iCourts, Centre of Excellence for International Courts. University of Copenhagen. Transnational Law and Governance
This paper returns to the question of transnational law which has influenced international law debates for the past decades and is central to the scholarship of Inter-Johanne Sand. The study of transnational law challenges above all the legally inspired dichotomies between the national and the international and between law and politics, and puts instead emphasis on the processes through which transantional governance is made possible. In addition to introducing some framing theory, the paper will speak about international courts as transnational institutions.
Trude Myklebust. Postdoctoral Fellow, Department of Private Law, University of Oslo. When law is the complexifier. Two examples from private and public sector
Inger Johanne Sand has put complexity at the forefront in her wide-ranging research agenda. I would like to discuss how the choice of regulatory technique in itself might influence the complexity of both the regulated area and the regulation itself, taking the regulation of the financial markets as an example. The volume and degree of detail in this regulatory area has increased enormously, if not exponentially, over the past 30 years. One explanation for why this is happening is that, through market liberalization, a number of structural and institutional barriers have been removed, enabling the market actors to freely choose their organizational form and range of services as a competitive parameter. This in turn has led to far more complex and impenetrable company structures, services and products for reasons that are logical and desirable from a business perspective, but not necessarily from a system or consumer perspective. When it eventually became apparent that the market mechanisms in themselves did not counteract the adverse consequences of this for individuals and society among others to the re-emergence of financial crises, a new regulatory agenda intervened during the 1990s. However, instead of reintroducing structural regulatory approaches, other forms of regulation now dominate the regulatory area – i.a. behavioral regulations and disclosure rules. These forms of regulation are complicated and often expensive to apply and enforce because they regulate behavior at an individual level instead of creating systems better safeguarding the "public interest" in the first place. Furthermore, they invite regulatory arbitrage and so-called financial engineering to exploit regulatory loopholes. These processes put a constant pressure on regulators and supervisors to keep up with the market-driven innovations, contributing towards a regulation that becomes more and more complex, detailed and voluminous. The argument thus becomes that one must consider much more thoroughly the actual choice of regulatory approach with advantages and disadvantages, in order to achieve the overall objectives of the legislation. This raises questions about which role lawyers and legal theory should play in a realm where financial policymakers, at least for the time being, are pursuing the same track
Not able to attend:
The following contributions will be available later for the Festschrift.
Cristian Joerges. Professor Emeritus of Law and Society. Hertie School. Berlin. Societal Constitutionalism and Polycontexturality or Democracy-enhancing Conflicts-Law Constitutionalism
Malcolm Langford. Professor. Faculty of Law, University of Oslo. Responsive Courts and Nordic Deferentialism
Sara Stendahl. Professor of Public Law, Department of Law. School of Business, Economics and Law. Gothenburg university. Ecce homo? Reducing complexity, without reducing human capability.
Abstract: What kind of theory are we in need for? The question was formulated by Inger-Johanne Sand over a decade ago in an article digging deep into one of the fundamental challenges of our time; a process of fast legal expansion drifting into a world of increased complexity. As we have since been reminded no human accomplishment can be taken for granted: not peace, not democracy, not welfare, not human rights, not science nor reason. In our contribution we wish to pick up the baton held out by Sand and probe back and forth on the topic of the urgent need for theory as we bring to the table reflections on Paul Ricoeur’s philosophical anthropology. What, if anything, can Ricoeur’s ethical approach to human capability bring to law?
In cooperation with Håkan Gustafsson and Ulf Petrusson (both Gothenburg)
Anne Kjersti Befring. Associate professor, Institute of Public Law Faculty of Law, University of Oslo. Governance and complexity
Abstact: The states and public administration is responsible for an increasing number of tasks that require the use of technology and specialist expertise, as well as international cooperation. This has led to changes in the organisation of public administration. Inger-Johanne Sand has problematised how various legal organisations have been used in governance. Her theories are based on studies of how the public administration was reorganised over a ten-year period. Sand believes that the changes and the legal framework must be understood in a broader social context. Sand argues that modern law must consist of independent legal systems and is part of a larger complexity, referring to the theories of Niklas Luhmann and Gunther Teubner. In this paper, Sand's theories are examined in more detail in light of governance under the corona pandemic.
Program committee
- Anne Kjersti Befring
- Dag Michalsen
- Gunnhild Storbekkrønning Solli
- Synnøve Ugelvik