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Imperfect Alternatives and the Invisible Elephant: The Complex Nature of Environmental Governance
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Imperfect Alternatives and the Invisible Elephant: The Complex Nature of Environmental Governance


Cahiers d'Anthropology du droit Le courage des alternatives Sous la direction de Christoph Eberhard (Paris Karthala, 2012) …

Cahiers d'Anthropology du droit Le courage des alternatives Sous la direction de Christoph Eberhard (Paris Karthala, 2012)

Environmental governance decisions, like other public policies, are often based upon the assumption that having the ‘correct’ legal principles is the key to describing and prescribing the law. Yet, one of the most inescapable and persistent issues in law is its very concept. Western civil law and common law scholars have sought to understand where, how and in what form law emerges. How do normative orders form legal orders, or juridicities?

Moreover, law is not only founded on legal principles but also set within a wider social, economic, cultural as well as environmental context. As interdisciplinary approaches to the study of law expand, disciplines such as the sociology of law and legal anthropology have exposed how dogmatic principles can often be incongruent with the legal reality or law in practice. Instead alternative normative orders seem to emerge, each being complex and imperfect. By contrast, the economic analysis of law generally has sought to view normative behavior through the narrower lens of market exchange in which an ‘invisible hand’ simply guides ‘rational’ agents to the optimal solution. In recent years much has been learned from nonlinear dynamics and complex adaptive systems about how complex and imperfect [normative] behaviors can emerge from simple rules (Miller and Page 2007). The approach taken here unites these seemingly contradictory perspectives in order to portray the emergence of self-organizing governance alternatives. The article proposes a means to structure a multidisciplinary analysis of Corsican governance to better understand the underlining decision-making process and frame the corresponding forces that form legal orders.

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  • 1. 13 Imperfect Alternatives and the Invisible Elephant The Complex Nature of Environmental Governance Jovita L. DE LOATcH Environmental governance decisions, like other public policies, are often based upon the assumption that having the ‘correct’ legal principles is the key to describing and prescribing the law. Yet, one of the most inescapable and persistent issues in law is its very concept.1 Western civil law and common law scholars have sought to understand where, how and in what form2 law emerges. How do normative orders form legal orders, or juridicities? Moreover, law is not only founded on legal principles but also set within a wider social, economic, cultural as well as environmental context. As interdisciplinary approaches to the study of law expand, disciplines such as the sociology of law and legal anthropology have exposed how dogmatic principles can often be incongruent with the legal reality or law in practice.3 Instead alternative normative orders seem to emerge, each being complex and imperfect. By contrast, the economic analysis of law generally has sought to view normative behavior through 1. See classic works such as Max Weber’s 1922 Economy and Society and Émile Durkheim’s 1895 The Rules of Sociological Method, as well as the seminal 1961 The Concept of Law by L. H. A. Hart placing law into a social context among others. 2. Pierre Bourdieu defined the process ”[t]o codify (the law), it is simultaneously to formulate and to formalize. There is an inherent virtue of the form (created), and cultural control is always a master of the forms.” (Bourdieu 1993 : 60). All translations from the original versions of non-Enllish texts have been made by the author. 3. See Moore 1978, Ost and van de Kerchove 2002 and supra at note 1.
  • 2. the narrower lens of market exchange in which an ‘invisible hand’ simply guides ‘rational’ agents to the optimal solution.4 In recent years much has been learned from nonlinear dynamics and complex adaptive systems about how complex and imperfect [normative] behaviors can emerge from simple rules (Miller and Page 2007). The approach taken here unites these seemingly contradictory perspectives in order to portray the emer- gence of self-organizing governance alternatives. The article proposes a means to structure a multi-disciplinary analysis of corsican governance to better understand the underlining decision-making process and frame the corresponding forces that form legal orders. Constructing Fields of Juridicity The challenges posed by complex legal phenomena including discov- ering how a process of informal governance that is rooted in local, communal, extra-territorial or even global interactions, can evolve largely autonomous from state doctrine, the juridicity of which may be affirmed on the simple basis of the ‘acceptance’ by a group or community. Étienne Le Roy asserts that juridicity comprises: 1) general and impersonal norms, 2) models of proper behavior and 3) as introduced by Bourdieu, systems of durable dispositions (Le Roy 1999: 201-202).5 By creating a complex adaptive framework of Le Roy’s paradigm, quantitative and qualitative social science methods will mutually benefit from the closer integration of cultural observations and learned hypotheses on the emer- gence of legal orders. It can serve to “…compress the social, economic, political, and juridical elements together with the levels international, national, and local, in a single…” (Moore 2006: 134) not simply symbolic formula, but as a scaffold for a practicable quantifiable adaptive framework that may be replicated and tested. In an adaptive framework of this paradigm, general and impersonal norms can be expressed in terms of individual efficiency assessments compared to socially efficient assessment of the community where models of proper behavior seek to align the individual with the social incentives of the community through pressures exerted by the relevant and enduring community institutions.6 Bourdieu defined the concept of le courage des alternatives232 4. For the historical context and critique of commonly applied neoclassical law and economic models promoted in neo-liberal politics see Fried 1998 and Pollinsky 1974. 5. See also Le Bris, Le Roy & Matthieu 1991 : 13-14. 6. For a discussion of this concept see De Loatch 2009.
  • 3. habitus as “…systems of durable, transposable dispositions, structured structures predisposed to function as structuring structures, that is, as principles of the generation and structuring of practices and representa- tions… without presupposing a conscious aiming… being all this, collec- tively orchestrated without being the product of … a conductor.” (Bourdieu 1977: 72). Habitus is itself a generative dynamic structure that adapts and accommodates itself to other dynamic structures and sub- structures composed primarily of other actors, situated practices and durable institutions (fields) (Lizardo 2004: 375–401). In the same manner, Le Roy underlines, “… the field of ‘juridicity’ of ‘habitus’ is not predetermined. It lives, ebbs and flows, as in inter-normativity phenomena studies of Jean carbonnier” (Le Roy 1999: 200). Thus, it is a system of lasting, transposable dispositions that, inte- grates past experiences, functions at every moment as a matrix of percep- tions, appreciations, and actions, and makes possible the achievement of infinitely diversified tasks, thanks to analogical transfers of schemes permitting the solution of similarly shaped problems (Lizardo 2004: 375–401). This is where habitus becomes a helpful and flexible way to conceptualize social structure and uncover the most deeply buried struc- tures of the different social worlds that form the social universe, as well as the «mechanisms» that tend to ensure their reproduction or transforma- tion. Bourdieu adds “…habitus is the structures constitutive of a partic- ular type of environment. [T]he practices produced by the habitus [are] the strategy-generating principle enabling agents to cope with unforeseen and ever-changing situations” (Bourdieu 1977: 72). A Functional Concept of Community In order to further envisage the field of juridicity of habitus, my starting place consisted in establishing a functional concept of a commu- nity7 that a law intended to benefit. As an American researcher in Paris conducting initial fieldwork on the French island of corsica (De Loatch 2009), the identity and nationalism of the corsican people was crucial to the question of a proposed French environmental policy for the corsican littoral. Who are the corsicans, exactly? Dare I ask the taboo question of imperfect alternatives and the invisible elephant 233 7. Étienne Le Roy provides three appealing challenges in the identification of commu- nities of concern to ‘patrimonial governance,’ of which I find two relevant to this para- digm: 1) the need to identify the diversity of the interests and 2) the conception of a func- tional design of the community. (Le Roy 2008).
  • 4. whether the corsicans are a separate people from the French?8 Without a clearer understanding of their identity in relation to the island of corsica and to France, one cannot penetrate below the surface. The stated objective of the PADDUc proposal9 by the French govern- ment was to alter current land use practices to promote its vision of ‘sustainable’ economic development of coastal lands, many of which have been historically under the management of village collectives on corsica. conducting fieldwork in a small village near the coast in the Balagne region of corsica allowed the opportunity to observe the bond between people and place. This bond reveals a major symbolic relation- ship or rapport system with the occupied land and the process of associa- tion by a particular culture10 or social group. Bourdieu, among others, observed that social groups are the result of a continuous process rather than the expressions of fixed structures or species (Bourdieu 1980). A society is durable because it is an assembly of people and objects, and the impact of the society comes partly from these objects (such as the land) that are intricately woven into its fabric. Without these interconnections, the society loses its contextual interaction and cultural / human social rapport, and its roots in time, ground and territorial space. The habitus of the corsican peoples i.e., a vision of “the total man,” as put forth by Marcel Mauss (1934: 8), is a kind of connector of the physiological, psychological components and societies of humans. This “system of provisions to the practice” produces a “tendency to act in a regular way” and a manner of acting that “does not find its principle in a rule or explicit law” (Bourdieu 1977: 72-95). Habitus “is part dependent on the blur and vagueness” of the corsican people themselves. One finds in corsica, in fact, a lyrical and convivial society that allows each individual agent to find its own place in the space. Formal and informal institutional associations prolong and deepen the rooting of the symbolic system and connection with others. Through the corsican village institutions a bond is woven into the structure of the physical island space. It is this distinction from the ‘French’ that corsicans, as a people bonded to the island of corsica, appear to claim. le courage des alternatives234 8. I have been told that this is quite a taboo question in France actually; as France emphasizes the unity of the Republic and does not officially recognize diverse cultural communities, just French citizens. 9. Le Plan d’aménagement et de développement durable de la corse (PADDUc) or the Management and Sustainable Development Plan of corsica was assigned to the Territorial community of corsica (cTc) by the French Law of January 22, 2002 (n°2002- 92), on corsica (article 12). 10. The local laws regarding any act “… include a priori all the practices of uses, occupation, of the grounds, on territories (within the meaning of delimited spaces), defined by them, according to rules locally recognized” (Rochegude 2006: 87).
  • 5. These communal relationships encircling the island require member- ship based on adhesion to the institutions embedded in the villages. Gauging the degree of this adhesion also helps to define the parameters of it’s functional concept. Membership in these institutions implies acts of exclusion and of border building. Opposition between the initiates and the foreigners rests on the way in which one fosters close adhesion to the local institutional associations. Knowing one or more families in the village, taking an interest in learning the corsican language or corsican music, or being a member of an association or a closely affiliated outside group, such as the environmental group Surfrider, can all play a part by blurring the lines between foreigners and the initiates. corsicans are influenced by their institutional membership in musical associations as well. The power of this type of local knowledge also helps to give some visitors the advantage of gaining adhesion and being distin- guished from unknown foreigners. Music is very closely related to the collective life of the corsicans of the Balagne, and its interconnection with the corsican community emanates from the very heart of the island. Music-making in corsica can serve to vehicle the complexities of corsican social structures, their memberships and the tensions through the corsicans’ dedication to seek, create, carry out and listen to their polyphonic songs and by their negotiating the contexts to which the corsican music belongs.11 Thus, forming community rapports requires social investment, not simply private investment (such as through property ownership) to estab- lish the bonds of membership. The social relationships that form the foundation of community can be expressed in terms of economic factors, such as the accumulation of capital and extraction of rent, in addition to the legal standards of appropriation and methods of payment in the settle- ment of conflicts (Le Bris, Le Roy & Matthieu 1991: 13-14). This ‘autho- rized’ capital facilitates abstract human exchange, ‘lubricates’ the civil society and provides a voluntary supply of collective goods. It promotes confidence, increasing foreseeable behavior and reducing the costs of transaction (Svensden and Svensden 2003), thus providing incentives to form the bonds necessary to encourage mutual trust. The cornerstone of imperfect alternatives and the invisible elephant 235 11. In one case, villagers informed their welcomed visitors to remove their car radio antenna to reduce the theft risk of the vehicle in a corsican village. The antenna can be seen locally as a symbolic adhesion to the French on the continent, because one can only listen to ‘la musique française’ with an antenna, but without it, one shows a subtle act of solidarity with the local music traditions of corsica. Moreover, there seems to be a distinction between the initiates, who live as members of the village, and the foreigners, who are characterized as treating the local space like an object without heart and simply exploit its resources.
  • 6. this kind of social capital rests on the cultural foundations of trust and assurances of mutual cooperation. These acts of investment in authorized capital can be seen in the efforts of a person with family ties to a village using her notoriety and wealth to renovate the village church, a tourist (or researcher) gaining acceptance in the village to become a `welcomed visitor’ by taking part in a community beach cleanup day, or summer vacationers uniting with the villagers to protect local vegetation from a mountain flood. Following Bourdieu, the focus must be on the ‘economy in practice.’ In other words, it should be on ‘economic’ calculations that are behind not only obvious economic practices, but also the more hidden practices and more symbolic systems in order to better account for less ‘rational’ behaviors. These acts have the collective value of establishing and enforcing social norms and social relations, as well as allowing coordination of actions to achieve common goals. They also affect attitudes and mental provisions supporting co-operation in village social life (coleman 1964 : 381-405). Nevertheless, one must avoid the impulse to create a dualistic opposi- tion between the initiates and the foreigners, which would function only as an obstacle to a realistic construction of a theory of cultural dynamics. A complex analysis involves a continuum that is not simply a question of quantity of connections, but also of the individual quality of the relation- ship with the institutions of the village. These connections include, but are not limited to: religious, musical or environmental organizations, family antecedents in the village or on the island, the investment in and protection of the communal grounds of the village, proximity of work, time spent in the village and, to a lesser degree, the ownership of property in the region. The mechanisms that bind authorized capital are networks of the reciprocal rapports that depend on trust and assist in the creation of reciprocity norms (Ostrom 2005). For example, after having taken part in the shared activities of the village, a welcomed visitor received a fruit basket from the garden of a local neighbor. Incorporating coleman, the authorized capital is a neutral resource that facilitates without regard to the nature or the initiator or the transaction. This connection refers to the value assigned to the authorized capital in the social networks, between the initiates and the local community, opening a bridge between the two (coleman 1964: 269-287). Much like the social networks created by the shepherds in Sardinia (Ruffino 2005), one often notes that each agent establishes bonds by occasional expressions or the sharing of local knowledge in order to reveal social dimensions or maps. To do so in spatial terms is to recog- nize that the social map results from plotting difference and diversity, and their actual outcomes (de Sousa Santos 1995: 399-473). These dimen- sions overlap and intertwine, producing a complex social map of aspira- le courage des alternatives236
  • 7. tions, reflecting and reinforcing its cultural, social and economic divi- sions. These maps are also very effective in establishing the orientation of physical space rapports or symbolic systems. According to Boaventura de Sousa Santos, maps capture three elements: scale, projection, and symbolization. Each map is created by scale that is not only quantitative but also qualitative, and projection that is “… the process used by the legal order to define the limits of its operation and to organize this legal space…” (de Sousa Santos 1988: 363-388). The symbolization contained in maps is the visible side of the representation of reality. Its operation is based on and conditioned by the scale and projection, and relates to the representation with symbols of the characteristics and details of the reality that were selected. These maps consciously and subconsciously are established, recog- nized and negotiated, and the need for maintaining them and for rein- forcing the rapports through service, reciprocal hospitality, and expres- sions of good will and friendship, is consciously identified. The maps are intricate in that each individual has her bonds, her stakes, and her manner of becoming part of the community, varying remarkably according to the bonds that are established and reinforced with time. The aggregation of these individual maps shared by the social network forms the local knowledge that helps to define the cultural map. Each act helps to rein- force and clarify the distinction between the corsicans and the conti- nental French, or between the autochthones and the tourists. The unfolding of these dynamics reflects the drive towards cultural self-defin- ition and community identity inherent in each, establishing cultural self- similarity. The use of network data aggregation and analysis by social scientist, whether through direct fieldwork or cultural, economic, social and even environmental informatics12 can help to recreate this map and provide a way to visualize a shared scientific structure. By studying the ways this drive manifests (its origin and characteristics; catalysts and inhibitors; and factors that support, sustain and reproduce), the dynamics of this ‘autopoietic’ or ‘self-organizing’ system (often seen as resulting in unstable «turbulent-like» social forces and associated with «chaotic» behavior – Teubner 1993) may also be investigated. imperfect alternatives and the invisible elephant 237 12. Informatics has created new sources and tools for interdisciplinary research of networks with computational data collection. “Informatics is the science of information. It studies the representation, processing, and communication of information in natural and artificial systems. Since computers, individuals and organizations all process information, informatics has computational, cognitive and social aspects.” See entry for ‘informatics’ in International Encyclopedia of Information and Library Science (second edition) (0415259010) John Feather and Paul Sturges eds., Routledge, 2002.
  • 8. Institutional Incentives Effecting Cultural Translation In addition to establishing a functional concept of the community, ascertaining the institutional structures that are equipped to influence or coerce compliance to law in practice is also needed. Neoclassical institu- tional approaches in the economic analysis of law have created models that assume no transaction costs, and that assume the final allocation of rights (such as land use rights) is always efficient, regardless of the initial entitlement (coase 1937; coase 1960). However, by failing to incorpo- rate environmental, social and cultural externalities and transaction cost, these simplistic models built directly from the neoclassical interpretation of coase’s ‘theorem’ have struggled to capture real world dynamics and more complex phenomena. These types of analyses can prove to be too narrow, too simplistic, and rely too much on assertions and assumptions about reality. Despite the fact that this limited interpretation of economic analysis of law has some descriptive and explanatory power, many of the subtleties of human behavior are omitted or unexplained. Game theory models and behavioral economics have moved beyond this limited view. However, there still is a need to compare observations of real world behavior governing social autopoiesis with theoretical and experimental models and simulations. In fact, Ronald coase and what has become New Institutional Economics (‘NIE’) have no interest in the narrow “neoclassical assump- tions that individuals have perfect information and unbounded rationality and that transactions are costless and instantaneous (Menard 2000: 46- 54). NIE “… considers choices to be embedded in the institutions… [thus having] a much broader reach than neoclassical economics, which has been largely concerned with prices and outcomes … As Kenneth Arrow observed … [NIE ask questions as to] why economic institutions emerged the way they did … [In addition, Douglas] North has pointed out [i]nstitutionalist …understand change by understanding human incentives and intentions and the beliefs, norms and rules that they create in pursuit of their goals” (Menard and Shirley 2005: 2). [Elinor] Ostrom stresses “…the regularized plans that individuals make within the structure of incentives [is] produced by rules, norms, and expectations of the likely behavior of others affected by relevant physical and material conditions.” (Ostrom 2005a: 825). The tools of NIE analysis of law can provide a way to frame how a community’s institutions establish positive and negative social incentives for obtaining community adhesion. The costs of transaction are evaluated according to the manner in which the institutional frameworks provide incentives (or disincentives) for agents to engage in a given activity or le courage des alternatives238
  • 9. behavior. In this way, an individual’s personal incentives can fail to align with social incentives of the community, falling well short of the optimal social equilibrium and outside the social norm determined by a communal valuation of such things as the scarce natural resources of the corsican coast. The pressures to align with the norms of community create various incentives to align the individual with this social norm, its optimal social balance. Thus, the individual’s efficiency assessment conflicts with the socially efficient assessment. For those individuals who do not understand or do not heed the community’s prescription for the optimal social balance, an explosive (and sometimes violent) form of communication can be offered on the island of corsica. The underlying problem with this individual efficiency assessment is that a foreign individual may be unaware of or ignore the costs (or benefits) that she imposes on others in the village. This “free rider” problem leads to, in the case of cost imposition, the under-supply of the collective public good, and forces a reduction in the collective public interest of the village. Accordingly, a sanction for igno- rance of the custom can appear. This sanction can be a legal consequence of an attitude or of a behavior relating to the social norms in which it is located. Between these efficiency assessments it “... is not thus only to fight, it is also to get along on legitimacy or illegitimacy of these prac- tices … the law of a society is ordered thus around the limits of the spheres of action of each one in these fields; it holds for vital: it is at the same time consensus on these limits and practices, aiming or succeeding to confirm them or moving them” (Alliot 1983: 85–6). Adopting the concept of fixed action patterns,13 the replication of norms promotes cultural pattern emergence in community behavior. The legal standards of ‘everyday life’ rest on the ideals and criteria developed by the community. As a result, they build upon and cultivate their customary laws. The individual is thus confronted by these community incentives as a method to cure the conflict between the individual evalua- tion and social efficiency evaluation of the community. One must also consider the level of pressure exerted by the community to have its norms replicated as an exact translation or transposition, promoting a pattern in cultural behavior to emerge. Translation factors modify a cultural action pattern’s emergence based on: an institution’s ability to promote or imperfect alternatives and the invisible elephant 239 13. Sharing with anthropology the concern of the importance of context, ethologist (who study animal subjects in their environment) have defined a fixed action pattern as a behavior that occurs in a fairly intact form even in the absence of experience or learning but can be further refined by experience. (Sapolsky 2005: 267-281 and 395). In this way cultural action patterns embed its history and sense of identity within the social map as discussed below.
  • 10. repress a given cultural practice, valuation or use of an object such as the coastal land; the degree of network connectivity affecting information exchange; the enforcement and reinforcement of norms; the degree of norm rigidity (or conversely flexibility) of the community; and the vari- ability of cultural reproduction affecting the institutional structures. Trade-offs calculations (the costs of exchanges) are made continu- ously among the structures, where incentives alter the structural map of social norms. The power of these incentives rests on the threat of symbolic sanctions and, from time to time, real sanctions. It is a risk that everyone in the community must control. Risk is the median value of the consequences of the affected events. One of the difficulties in risk management is the fact that the consequence is often uncertain. Direct quantitative measurements and data collection can prove complicated. However, one can identify and evaluate risks on a collective level of the social efficiency of the custom of the community. Like the conscious or subconscious utilization of mathematical probabilities by an individual, one can estimate the difference between an individual’s personal effi- ciency assessment and the efficiency assessment of the community. It is through fieldwork techniques that one can observe and measure ordinal preferences and the quality of the risk in a given social interaction. This ordinal measurement of utility can be used to describe the bundle of rights or preferences of an individual compared with the social evaluation of the customs of the community that define the limits of the legal order and help to organize the legal space. This economic calculation is behind not only the obvious economic practices, but also more hidden practices and more symbolic systems that are characteristic and help to reveal the details of the reality of the community. Thus, many material and immate- rial economies may exist for ‘market’ exchange. Juridicity as a Complex Adaptive System The literature on complex systems has spread from the study of natural systems to the study of social systems.14 chaotic behaviors are beginning to be explained in terms of nonlinear dynamics and arise natu- rally in areas as diverse as evolutionary biology, applied mathematics, game theory, quantum mechanics, coding and information theory. le courage des alternatives240 14. For a general overview see Miller & Pages 2007 and Mitchell Melanie, 2009: 368. Specific examples include Lansing J. Stephen, 2006: 240, and multi-disciplinary authors, Liu et al. 2007.
  • 11. complexity theory’s impact on economics has helped to shift focus from equilibrium models to nonlinear dynamics, “…as researchers recognize that economics, like ecosystems, may never settle down into an equilib- rium (Lansing 2003: 193). Similarly, “…the aspects that may be of greatest interest to anthropologists have to do with the emergent proper- ties of social and behavioral systems (Lansing 2003: 193). By adapting economic tools to nonlinear dynamics, empirical and measurable obser- vations from anthropological and sociological research may be able to be ordered, analyzed and compared with other observations in the search for key institutions and explanatory variables. The idea that an institutional analysis of social incentives, like much of the physical and biological world, is generated by a recursive process creating a fractal structure,15 is an intriguing and potentially powerful direction for this type of research. The ultimate goal is to begin to frame real world cultural dynamics in order to compare alternatives, to determine the model’s descriptive and predictive capacities and to test it against the theoretical and experimental models currently offered. In a nonlinear dynamic construction of ‘juridicity,’ the transposition of dispositions can be ordered in terms of 1) a ‘bounded’ social trajectory16 that serves to map the social norms of the community, 2) institutional transposition or translation factors’ that effect the variance of reproduction of the norm, 3) observation of or informatics on the scale of network and the quality of its interconnections and 4) variation over interaction events, time or other intervals. The social trajectory creates a map represented by a simple dichotomy of choices or a more complex range of behaviors in which informatics analysis and ordinal measurements of utility can be used to describe a bundle of rights or cultural preferences. On this map, in the abstract, cultural reproduction would create an exact replica of social norms, an exact reflective mirror image of the dispositions in its next itera- tion. In reality, errors in translation are introduced with each individual’s interpretation of the norm despite the influence or coercive power of the institutions that guide and limit the cultural action patterns used to define the limits of social behavior and to organize the legal space.17 For imperfect alternatives and the invisible elephant 241 15. See Ruhl 1997 and Benoit Mandelbrot’s theory of fractional dimensions highlights the relativity of measure with respect to scale and emphasizes the kinship of his ideas with the emphasis on the perspective of the observer (Mandelbrot and Hudson 2004: 97). 16. As defined in Bourdieu 1977: 86. 17. In another example, for the Swedish research program Sustainable coastal Zone Management, in conflicts analysis studies, its version of ‘mapping’ of stakeholders and their interest was included in the complex adaptive methodology, noting that “[m]ore recently formulated criteria for sustainable resource management include socially robust systems with the components of participation, knowledge integration, and maintaining biological and cultural diversity through pluri-centric adaptive systems” (Bruckmeier 2005: 65-66).
  • 12. example, the degree of network connectivity affecting information exchange dramatically changed when a collective in favor of the «coastal protection law» was launched on the internet gathering scores of associa- tions, ecologists and some local political parties (nationalist, greens, socialist, communist…) in favor of this popular initiative. Enforcement and reinforcement of norms grew denouncing “… the pressures exerted by some `property [and] recreational developers, architects, [and] elected political within the framework of PADDUc.”18 It is this diachronic process of constant renovation, generating a dynamic cultural action pattern that enables juridicities to emerge. Mapping this space will help to organize observations and graphically illustrate how individual agents as a group cope with unforeseen and ever-changing situations, thus managing risk through the strategy-generating principles embedded in the structuring of practices and representations. The bundle of rights that serve to apportion the risk can be used to identify alternatives in gover- nance. The ultimate goal of this emerging framework is to most effi- ciently place the burden of that risk.19 What complex systems can do is highlight this connection by demonstrating that risk premiums may be much higher than one would expect with a more conventional statistical distribution (Farber 1997). Analogous to scale in the de Sousa Santos maps discussed above, in this construction of the field of juridicity, the aggregation of the indi- vidual information maps disseminate through the shared social networks. In terms of quantity, institutional structures may exist on global, national, regional, local, communal or other scales of connectivity. Qualitatively, scale also infers a kind of order that requires transformations of scale to consistently replicate the same range of possibilities guiding cultural action patterns across other active scales. In other words, when the influ- ence or the coercive power of institutions on each scale of connectivity exhibit the maximum of invariance (thus the most similarity) in cultural action patterns. le courage des alternatives242 18. The petition continues, “[PADDUc] is contrary to the collective interests of all the corsicans. Indeed, its economic priorities are founded on coastal tourist mono-activity and residential economy…” (Pétition contre le Projet de PADDUc en corse http://cll- corse.org/, accessed 09/05/09.) The network binding of the social trajectory reinforces the mapping of social norms of the coastal area collectives. After the creation of this social network, musical associations renewed their interest in taking part in island politics by opposing the proposed French legislative transposition, in spite of the fact that many of the associations receive significant monetary support from the French regional Executive council of the corsican territorial collectivity (De Loatch 2009 : 60). 19. The burden of environmental risk is always borne somewhere, or more precisely, with someone (often less developed third countries or future generations in the case of environmental damage). Someone, somewhere, at sometime will bear the cost of the risks that are taken (De Loatch 2008).
  • 13. This offers a new criterion to determine whether social incentives proposed in laws like PADDUc on the scale of French national and regional bureaucracy will introduce scaling failures given the wide vari- ance between efficiency assessments of the official law of the French Republic compared to the scale of the customary law of the corsicans or to the scale of global environmental institutions reinforcing the public local competence.20 Scaling failures may also be seen when PADDUc’s incentives are compared to a chosen efficiency criteria, such as based on an efficiency principle for sustainable development (see De Loatch 2008) or compare with other theoretical or experimental results. The degree of self-similarity of cultural action patterns can be tested across scales by assessing translation factor incentives in each network’s implementation of norms. The Complex Nature of Environmental Governance Like an elephant, invisible when viewed in the darkness, one’s perspective is limited to only the part of the elephant that one can grasp within a discipline. Thus, one can be misled into incorrect conclusions and misinterpretations as to the whole. This is a modest attempt to take a step back, to gain enough perspective that the elephant’s shape emerges out of obscurity and the myriad of influencing variables. The courage of alternatives in environmental governance relies not only on building an interdisciplinary framework that can better approximate the complex dynamics at work but also in confronting our own rigid disciplinary constructs, exposing new perspectives in human behavioral phenomenon. This initial outline of a framework of juridicity in corsican society suggests how institutional social incentives help to regulate behaviors. Through legal anthropology and sociology we find a lucid and critical analytical method of examining the crucial relationship between law, cultural and social life in an age of increasing interconnectivity within the global economy. Equally, economic analysis of law can help shine a harsh bright light on the murky area where the rule of law comes into contact with and is shaped by economic power. For present purposes, the modest goal of this article is a tentative exploration of the possibility of using nonlinear dynamics to provide a conceptual framework for thinking about a wide variety of temporal progressions, based on dynamics of complex imperfect alternatives and the invisible elephant 243 20. See Rochegude 2005 : 59-72.
  • 14. systems and on preliminary empirical evidence. complexity theory offers new ways to explore the topoi at the bases of juridicity, continuing to broaden the multi-disciplinary structure of social dynamics and perhaps providing a new means to confront the demands and challenges of other- ness, complexity and interculturality (Eberhard 2011: 23ss), while allowing for an intercultural comparison of institutional structures within complex adaptive systems. Bibliography ARROW Kenneth J., 1974, The Limits of Organization, New York, W. W. Norton & company, 86 p. —., 1963, Social Choice and Individual Values, New Haven and London, Yale University Press, Second Edition, 138 p. ALLIOT Michel, 1983, « Anthropologie et juristique. Sur les conditions de l’élaboration d’une science du droit », Bulletin de Liaison du Laboratoire d’Anthropologie Juridique de Paris, n° 6, p. 83-117. BOURDIEU Pierre 1986, « Habitus, code et codification », Actes de la recherche en sciences sociales, n° 64, p. 60-64. —, 1980, Le sens pratique, Paris, Les Editions de Minuit, 475 p. —, 1977, Outline of a Theory of Practice, Translated by Richard Nice, New York: cambridge University Press, 248 p. BRUcKMEIER Karl, 2005, “Interdisciplinary conflict Analysis and conflict Mitigation in Local Resource Management”, Ambio Vol. 34, no.2, March 2005, p. 65-73. cOASE Ronald H., 1960, “The Problem of Social cost”, 3 Journal of Law and Economics, p. 1-44. —, 1937, “The Nature of the Firm”, reprinted from Economica, n.s., 4, p 386-405, (November 1937), in WILLIAMSON Oliver E. and WINTER Sidney G. (Eds.) 1993, The Nature of the Firm: Origins, Evolution and Development. Oxford University Press, New York, 244 p. cOLEMAN James S., 1964, An Introduction to Mathematical Sociology., New York, Free Press of Glencoe, a division of the MacMillan company, 554 p. DE LOATcH Jovita L., 2009, Enquête corse sur la passion pour le littoral de l’île de beauté: Un préalable épistémologique entre l’anthropologie juridique et l’analyse économique du droit, Mémoire de Master de Droit - Mention Droit comparé- Spécialité recherche Anthropologie du droit, Unitversité de Paris 1 (Panthéon- Sorbonne) Année Universitaire 2008-2009, 103 p. le courage des alternatives244
  • 15. —, 2008, “A Sustainable ‘Middle Way’ to Economic Responsibility in Environmental Governance : The case of Ec Salmon Aquaculture”, in EBERHARD christoph (dir.), Traduire nos responsabilités plané- taires. Recomposer nos paysages juridiques, Bruxelles, Bruylant, col. Bibliothèque de l’Académie Européenne de Théorie du Droit, 756 p. 583- 611. de SOUSA SANTOS Boaventura, 1995, Toward a New Common Sense: Law, Science and Politics in the Paradigmatic Transition, New York, Routledge, 614 p. —, 1988, « Une carte de la lecture déformée. Pour une conception post-moderne du droit », Droit & Société, n° 10, p. 363-388. DYKE chuck and DYKE carl, 2002, “Indentities: The Dynamical Dimensions of Diversity”, Diversity and Community: An Interdisciplinary Reader, Philip Alperson (Ed.), Oxford, Wiley- Blackwell; First Edition, 351 p. EBERHARD christoph, 2011, Le droit au miroir des cultures. Pour une autre mondialisation, Paris, LGDJ/Lextenso, 2ème edition, 254 p. —, 2006, « Trois problématiques pour une dynamique d’anthropo- logie du Droit », in Le Roy Étienne (dir.), Juridicités, Cahiers d’Anthropologie du Droit, Hors série, Paris, Karthala, 176 p. 59-70. — (dir.), 2005, Droit, gouvernance et développement durable, numéro spécial des Cahiers d’Anthropologie du Droit, Paris, Karthala, 376 p. —, 2001, “Towards an Intercultural Legal Theory: The Dialogical challenge”, Social & Legal Studies, Vol. 10(2), p. 171-201. FARBER Daniel A., 2003, “Probabilities Behaving Badly: complexity Theory and Environmental Uncertainty”, U.C. Davis Law Review, n° 37, p. 145-173. FRIED Barbara H., 1998, The Progressive Assault on Laissez Faire : Robert Hale and the First Law and Economics Movement, cambridge Mass., Harvard University Press, 352 p. JAFFE Alexandra, 1999, Ideologies in Action: Language Politics in Corsica, (Language, power & social process), Berlin, Mouton de Gruyter, 323 p. LANSING Bali, Princeton Studies in complexity, Princeton, Princeton University Press, 248 p. LANSING J. Stephen, 2003, “complex Adaptive Systems”, Annual Review Anthropology, n° 32, p. 183-204. LE BRIS Émile, LE ROY Étienne, et MATHIEU Paul, 1991, L’appro- priation de la terre en Afrique noire. Manuel d’analyse, de décision et de gestion foncières, Paris, Karthala, 359 p. LE ROY Étienne, 1999, Le jeu des lois. Une anthropologie « dyna- mique » du Droit, Paris, LGDJ, col. Droit et Société, Série anthropo- logique, 415 p. imperfect alternatives and the invisible elephant 245
  • 16. LIZARDO Omar, 2004, “The cognitive Origins of Bourdieu’s Habitus”, Journal for the Theory of Social Behaviour, Volume 34, Issue 4, December 2004, p. 375-401. LIU Jianguo, Dietz Thomas, carpenter Stephen R., Folke carl, Alberti Marina, Redman charles L., Schneider Stephen H., Ostrom Elinor, Pell Alice N., Lubchenco Jane, Taylor William W., Ouyang Zhiyun, Deadman Peter, Kratz Timothy, and Provencher William, 2007, “The development of coupled Human and Natural Systems”, AMBIO: A Journal of the Human Environment, n° 36 (8), p. 639-649. MANDELBROT Benoit B., 1977, The Fractal Geometry of Nature. New York, Freeman, 480 p. MANDELBROT Benoit B. and HUDSON Richard L., 2004, The (Mis)behavior of Markets: A Fractal View of Risk, Ruin, and Reward, New York, Basic Books, 328 p. MAUSS Marcel, 1934, « Les techniques du corps » Article originalement publié Journal de Psychologie, XXXII, ne, 3-4, 15 mars – 15 avril 1936. communication présentée à la Société de Psychologie le 17 mai 1934, 23 p. MÉNARD claude and SHIRLEY Mary M. (dir.), 2005, Handbook of New Institutional Economics, The Netherlands, Springer, AA Dordrecht, 884 p. MÉNARD claude, 2000, “Ronald H. coase and the emergence of a new approach to economics” in MÉNARD claude (ed.), 2000, Institutions, Contracts and Organizations: Perspectives from New Institutional Economics, New York, Edward Elgar Publishing, p. 54-58. MILLER John H., PAGES Scott E., 2007, Complex Adaptive Systems: An Introduction to Computational Models of Social Life, Princeton, Princeton University Press, p. 284. MOORE Sally Falk, 2006, “The Sociologic of Land Law”, in EBERHARD christoph et VERNIcOS Geneviève (Éds.), La quête anthropologique du droit. Autour de la démarche d’Étienne Le Roy, Paris, Karthala, p. 133-145. —, 1978, Law As Process: An Anthropological Approach, London Boston, Routledge & K. Paul, 270 p. OST François and van de KERcHOVE Michel, 2002, De la pyramide au réseau? Pour une théorie dialectique du droit, Bruxelles, Publications des Facultés universitaires Saint Louis, 596 p. OSTROM Elinor, 2005a, “Doing Institutional Analysis”, in MÉNARD claude and SHIRLEY Mary M. (eds.), 2005, Handbook of New Institutional Economics, Netherlands, Springer, AA Dordrecht, 884 p. —, 2005b, Understanding Institutional Diversity, Princeton, Princeton University Press, 355 p. OSTROM Elinor, and WALKER James, 2003, Trust & Reciprocity, le courage des alternatives246
  • 17. Interdisciplinary Lessons from Experimental Research, New York, Russell Sage Foundation, 409 p. POLINSKY A. Mitchell, 1974, “Economic Analysis as a Potentially Defective Product: A Buyer’s Guide to Posner’s Economic Analysis of Law”, 87 Harvard Law Review, p. 1655-81. ROcHEGUDE Alain, 2006, « Le Foncier, une préoccupation constante, un champ d’expertise reconnue », Le Roy Étienne (dir.), Juridicités, Cahiers d’Anthropologie du Droit, Hors série, Karthala, 176 p. (87). —, 2005, « Le ‘droit d’agir’, une proposition pour la ‘bonne gouver- nance foncière », EBERHARD christoph (éd.), 2005, Droit, gouver- nance et développement durable, numéro spécial des Cahiers d’Anthropologie du Droit, Paris, Karthala, 376 p (59-72). RUHL J.B., 1997, “Thinking of Environmental Law as a complex Adaptive System: How to clean Up the Environment by Making a Mess of Environmental Law”, 34 Houston Law Review, p. 933-1002. RUFFINO Julio, 2005, “Disputing over Livestock in Sardinia”, Law and Anthropology: a Reader, Sally Falk Moore (dir.), 2005, 384 p (135- 153). SAPOLSKY Robert, 2005, Biology and Human Behavior: The Neurological Origins of Individuality, 2nd Edition, course no. 1597, chantilly, The Teaching company, 412 p. (267-281). SVENSDEN Gunnar Lind Haase et SVENSDEN Gert Tinggaard, 2003, « On the wealth of nations : Bourdieuconomics and social capital », Theory and Society 32 : p. 607-631. TEUBNER Günther, 1993, Law as an Autopoietic System, (Anne Bankowska & Ruth Adler trans.), Zenon Bankowski (ed.), European University Institute Press series, Blackwell Publishers, Oxford, cambridge, USA, Blackwell, 203 p. WERIN Lars, 2000, “Ronald coase and the New Microeconomics”, in MENARD claude (dir.), Institutions, Contracts and Organizations: Perspectives from New Institutional Economics, Edward Elgar Publishing (Northhampton), p. 42-47. imperfect alternatives and the invisible elephant 247