Escaping the Epistemic Trap: An Ecological Analysis of Law and Economics

Abstract

On 12 December last year, the representatives of almost two hundred nations reached the “Paris Agreement” on climate change. But despite its promising wording, the agreement does not provide for any binding enforcement mechanism. This basically means that liability law remains silent on issues of environmental damage. What would be needed, therefore, are effective enforcement mechanisms including novel forms of private law enforcement. When faced with the demand of climate justice, however, the law finds itself in a paradoxical state that can be described as an “epistemic trap”: On one hand, the law is unable to immunize itself against political or economical or other nonlegal communication. On the other hand, it does not appear to be able to achieve nonlegal policy goals, especially those given by norm-incentive models or ex ante consequentialism. But it is these epistemic limitations of law that provide for epistemic autonomy, thus for constructive freedom in a long-term self-reflective “discovery process”. In order to escape from the epistemic trap, the law needs to look beyond the traditional criteria of individual causation and fault, likewise transcending its own “reality perceptions” of actors as legal persons and subjects of responsibility.