Law as conflict resolution, prevention and production

Abstract

This panel proposes to look at the relationship between law and conflict. At first sight this relationship is clear cut. The law resolves conflict by way of formal procedure laid down in legislation and by using distinctly legal concepts historically refined over centuries by lawyers in case-law. Parties may bring their dispute before the court, during which the law takes a backward-looking approach and determines which party is at fault in a given dispute. The parties may be civil parties as in the case of private law or disputes may arise between a civil parties and the state as in administrative law and criminal law. The relationship between states is governed by international law. However, this simple picture is misleading. Law is also an instrument of conflict prevention. The law determines the negotiating position of parties beforehand, because by looking at the law, they can estimate their chances if the dispute ends up in court. Transactions between different parties take place ‘under the shadow of the law’ as legal sociologists like to put it (Mnookin & Kornhauser 1979). Increasing attention is being paid to the regulating quality of law and its potential to prevent conflict by being responsive to social needs, (Nonet & Selznick 1978) by being adaptive to changing social and environmental circumstances (Arnold & Gunderson 2013) and by setting goals to be attained, instead of merely demanding or prohibiting certain behavior (Westerman 2018). However, law increasingly becomes a focal point of conflicts itself. Verdicts become the subject of intense political debate as the climate related Urgenda ruling in the Netherlands showed. The position of legal institutions themselves is weakened and becomes embroiled in political struggle, as recently happened in Poland and the Netherlands, but also in the EU and US. Law is increasing used as an instrument to solve social problems, but may in turn lead to new social problems when such laws engender opposition. Cases in point are the tightened permit requirements for farmers in the Netherlands on account of air pollution and the bills enacted to legalize the current measures to curb the corona pandemic. The drastic measures that might need to be taken in case of pandemics and environmental degradation, the changing nature of law as a tool for prevention and the current disputes over the place of law in as an instrument for social change, prompt a rethink of the relationship between law and conflict. Can law be used in ways that elicit productive conflict; by which is meant conflict that can help increase our range of solutions of pressing social questions, instead of limiting them? This exploration is undertaken in the five papers collected in this panel, ranging from the philosophical to the sociological and the doctrinal.

Title	Details
Governing through vision, the blurring line between law and policy	View Paper Details
Adaptive and Resilient? The development led turn in spatial planning in Belgium, the Netherlands, Norway and Poland.	View Paper Details
Judicialization of policy processes and decision-making: towards a taxonomy	View Paper Details
Litigation and Conflict: Forgotten processes in transnational lawmaking?	View Paper Details
A citizen-centric approach to evidence-based decision-making under the European Green Deal	View Paper Details