Research Law and Governance
Just as society changes when the law changes, so too the law is continually changing along with society. Globalization, technological developments, pluralism and the need to live more sustainably pose major challenges in the 21st century. At the same time, we are confronted with poverty, inequality, insecurity, crime and injustice. The research at Tilburg Law School focuses on understanding these developments and its impact on interpersonal and institutional relationships and the law.
The research profile of Tilburg Law School is constituted by four signature plans. The signature plans represent state-of-the-art research lines, connecting the key areas of expertise of Tilburg Law School. The current signature plans run from 2019–2024.
Connecting Organizations: Private, Tax and Technology-Driven Legal Relations in a Sustainable Society
Ensuring a sustainable society is today’s greatest challenge. Important global sustainability challenges outlined in the Sustainable Development Goals (SDGs) include for instance decent work and economic growth, industry, innovation and infrastructure, reduced inequalities, and peace, justice and strong institutions. The sustainability challenges have fundamentally changed our understanding of the relationships between organizations and their various stakeholders, including employees and trade unions, suppliers, consumer organizations, local communities, tax authorities, governments, but also the broader society. These relationships are by no means only hierarchical, which has been the focal point of traditional legal research and regulatory efforts for a long time: nowadays, organizations and their stakeholders are responding and communicating in a variety of networks and other formal and informal structures. Examples are multinational companies (MNCs) with their global value chains, but also for instance cooperatives and governmental authorities that cooperate in fair trade certification structures. Furthermore, these organizational forms are facilitated by and often even only possible because of modern digital technologies.
Connecting organizations to their direct and indirect environment to support sustainable activities is contingent upon an appropriate legal infrastructure, that supports and accompanies the necessary changes in business and organizational models. New technology-driven approaches like online platforms and blockchain that directly connect different stakeholders can foster and challenge these changes and deserve attention from legal scholars.
In this Signature Plan, we aim at a better understanding of how the law enables, supports and challenges organizations to connect with their stakeholders in a sustainable manner. We consider new connecting organizational structures enabled by new technologies that may foster and challenge sustainable activities, using three interrelated themes: sustainability, servitization and technology.
This theme is the core theme of our Signature Plan and investigates how a sustainable society can be supported by connecting organizations and their stakeholders. We take a broad perspective on sustainability like the SDGs, including environmental, social, and economic sustainability, while acknowledging the boundaries set by legal sustainability (including legal certainty and fairness). Research projects related to this theme focus on for instance:
- The involvement and engagement of different actors (including shareholders, employees and other stakeholders) in public and private businesses to enhance sustainability;
- The relationship between sustainability, social rights, contractual remedies, legal protection and law enforcement;
- Sustainability (including circularity) in global value chains.
Servitization concerns the offering of services instead of or combined with the sale of products. It gained prominence as an important sustainable business model and creates long-term interdependencies (connections) between multiple socio-economic stakeholders. Servitization requires (new) legal concepts and categories to safeguard these long-term connections. We thus analyze the ways in which the law facilitates connections between organizations and their stakeholders, and assess how the law can develop given these understandings. Nowadays, new technologies may play a large role in fostering these connections, but may also bring forward new challenges. Research projects related to this theme focus on for instance:
- Protection of different rights (including consumers, workers, owners) in product-service-systems;
- The contractual networks in construction, health care, production and trade;
- The role of information and (chain) liability in servitization, in particular when offered through online platforms.
Technology is embedded in servitization as well as sustainability. Servitization is mainly feasible with the aid of smart networked communication, and many sustainable activities build on the presence of new forms of digital technology. Yet, the impact of technology goes one step further and merits investigation on its own: new technologies lead to shifts in information, control and power, and therefore largely impact the connections between organizations and their stakeholders. In addition, technology facilitates new ways to perform legal research and may also impact the practice of law itself as a connecting factor between organizations: the way in which the law is communicated and developed may be subject to change, and may take the shape of ‘legal design’ (using visualization techniques for legal data) instead of traditional drafting of legal texts.
Research projects related to this theme focus on for instance:
- Blockchain technology, smart contracts and their (legal) applications;
- New forms of organizations and the use of new technologies in these organizations, including platforms and networks;
- The use of data science and AI-tools in legal research (including for instance legal analytics).
Hence, this Signature Plan investigates how the law can enable, support and challenge organizations and their stakeholders to organize their (economic) activities in a sustainable way. Here, it is important to take into account the consequences of new organizational arrangements and related technological developments for our current legal framework, and how the legal framework should be designed to promote sustainability and control for negative externalities, providing accurate legal protection and law enforcement.
- Private, Business and Labour Law
- Fiscal Institute Tilburg
Global Law and Governance
Global Law Governance falls into two interlocking modules: Law and Governance in a Global Setting and Global Environmental Law and Governance. The major questions it addresses are:
- How to make sense, theoretically and practically, of law and governance in a global setting?
- How to develop laws and governance regimes that allow of remaining within the planetary boundaries?
Law and Governance in a Global Setting
This module seeks to develop a framework that articulates—in the twofold sense of expressing clearly and joining together—the theory and practice of the publicness of law and governance in a global setting. This general theme is approached from a variety of theoretical perspectives and disciplinary backgrounds.
Constitutional: what are the (pre-)conditions for the emergence and persistence of legitimate and effective law and governance regimes in a global setting?
Historical: what continuities and discontinuities mark the passage from a state-centered to a global pluricentric paradigm of law and governance?
Methodological: How do law and governance in a global setting transform the methodology of legal research?
Sociological: which social contexts—technological, economic, cultural, etc.—precondition the emergence of the global setting of law and governance and, conversely, in what way does the global setting of law and governance transform these social contexts?
In dialogue with the aforementioned theoretical themes, while also integrating its findings into the Tilburg Law School’s Global Law Bachelor, this module explores the global legal professional as a specific practice of law. This strand of inquiry examines how the changes law is undergoing in processes of globalization demand new ways of teaching and practicing law, focusing, amongst others, on the ethical and political stakes of the legal and jurisdictional encounters to which globalization gives rise.
Global Environmental Law and Governance
This module explores the conditions for and emergence of global environmental law and governance regimes that can contribute to the preservation of meaningful (human) life on earth. Most fundamentally, the module is predicated on the assumption that the destabilization of the global/local divide is one of a broader range of challenges to law and governance in a global setting. Indeed, the module posits that law and governance in the Anthropocene confronts the destabilization of three basic category distinctions undergirding law and governance in the Holocene: the nature/culture, public/private, and global/local divides.
As a matter of urgency, law and governance scholars must articulate a new modus operandi for environmental regulation, which can no longer take for granted the territorial (domestic, regional and international), public, and anthropocentric paradigms of the Holocene. As such, this module assumes that environmental law and governance will become a privileged focus—perhaps even the central focus—of law and governance in a global setting. Likewise, it assumes that the destabilization of the three aforementioned category distinctions provides a particularly challenging reference point for Law and Governance in a Global Setting.
Law and Security
The concept of subversive crime (‘ondermijning’) was introduced in the Netherlands about a decade ago. It points at illegal activities that seriously disrupt the integrity of social and economic life and of financial and tackling institutions, but it may also refer to degradation of democratic and societal values and the environment. Although the term subversive crime has so far not been adopted outside the Netherlands, it does provide a highly useful lens to study complex crime problems. This is explained by the fact that subversive crime is not limited to organised crime, but also encompasses financial-economic crimes connected to social and fiscal regulation, committed by ‘respected’ upper world actors and corporate criminals in particular. The concept of subversive crime may be expanded further to ‘lawful but awful’ behaviour, in other words: blameworthy harms that as such do not or not necessarily constitute an offense, for example: using (international) legal loopholes to cut costs on labour migrants or to avoid taxes. From a victimological perspective, some perpetrators of subversive crime at the same time may be victims, although they may not self-identify as such because they also benefit from subversive crime. Finally, states may themselves facilitate subversive crimes. The latter broadly applies to governments – often influenced by powerful lobbies – failing to draw up appropriate regulations or purposively falling short in enforcing existing ones.
Clearly, impacts of subversive crime are distributed unevenly across societies. Residents of socially and economically deprived neighbourhoods, un(der)employed persons, undocumented migrants, people in precarious work situations and asylum seekers are more likely to become victims of subversive crime, but are also at a greater risk of being recruited into criminal networks. Furthermore, it becomes increasingly clear that subversive crime is not just an urban problem, but also seriously affects rural regions albeit in a different way. Finally, the Netherlands have a highly efficient infrastructure for instance for import and export; information and communication technology, and fiscal and financial transactions, which criminals may unfortunately misuse to facilitate their subversive activities. From a theoretical perspective, it is insufficient to focus solely on the characteristics of villains and victims, their immediate environment, and on criminal business processes and how to tackle these. We must also take into account systemic drivers of subversive crime, such as power differences and societal inequalities, as well as actors involved in reducing these problems: enforcement agencies, NGOs and societal groups.
- How can we understand the scope and impact of subversive crime phenomena from a broad and multidisciplinary range of frameworks of analysis and theoretical concepts?
- How can we tackle different types of subversive crime through legislation, law enforcement, preventive interventions, governance strategies and empowerment of (deprived) societal groups?
- Criminal Law
- Private, Business and Labour Law
- Fiscal Institute Tilburg
- Public Law and Governance
Regulating Socio-Technical Change
The common denominator to this Signature Plan is found in the range of analytical perspectives and methodologies through which colleagues participating in this plan study socio-technical change. We look at the regulation of socio-technical change and socio-technical forms of regulation through various disciplines, primarily law, economics, ethics, and other social sciences such as political science and public administration. This is justified by the fact that we study an ever-changing phenomenon and a significant paradigm shift requires that we consider how far current legal institutions and analytical and methodological approaches are fit for purpose.
We use these disciplines to inform our analysis of a range of issues, which may be grouped into five clusters: (i) Technology (especially Artificial Intelligence and Robotics) and Regulation; (ii) Data Governance; (iii) Technology and Fundamental Rights; (iv) Private Regulation and Trade; (v) Competition, Innovation and Industry Regulation. These issues are studied in various sectors of society, with particular focus on commercial relations, the internet of things, healthcare, the administration of justice, public administration, and vital infrastructures, especially energy markets. These issues are regulated by a range of actors (government, industry, individuals, transnational private actors), all of which form part of our investigations. The primary legal regimes that we study which affect and are affected by socio-technical change are: competition law, criminal law, equality law, health care law, humanitarian law, intellectual property law, privacy & data protection law, public law, private law, standardization, trade and investment, and security-fostering regimes.
- What are the challenges for regulation?
- How is socio-technical change to be regulated?
- Who are and who should be the major actors?
- Law, Technology, Markets and Society
- Public Law and Governance
Special research projects
Tilburg Law School conducts three research projects funded by the Dutch Ministry of Education, Culture and Science, to boost Dutch study programs in law as well as societal debate on pressing issues regarding law and governance. The research projects are integrated in the signature plans.
Digital Legal Studies: From regulating human behavior to regulating data
Classically, regulation targets human behavior. In an era of Big Data, artificial intelligence, and robotics which shape and sometimes even replace human behavior, however, the classic regulatory paradigm is challenged in fundamental ways. This research program aims to map, understand, and – to the extent possible – help shape the shift from a human-centric regulatory paradigm to a data-centric regulatory paradigm.
This project recognizes the importance of human behavior and human decision-making, but challenges the assumption that regulation should continue to primarily be focused on facilitating adequate human decision-making. Rather, the shift towards automated decision-making—with its conflation of norm-setting and norm-enforcement—may require a more fundamental rethinking of the regulatory paradigm.
To this purpose three research lines are pursued focusing on key elements of regulation shifting from a human behaviour and human relations to data relations and the behaviour of data systems:
- how rules can be formulated and enforced,
- which concepts can be used in regulation, and
- and which values are vital.
Transformative effects of Global Law: Constitutionalizing in the Anthropocene
Catastrophic environmental degradation is the most urgent global challenge for humanity today, and facing it demands major societal transformations at all levels.
Ours is the era of the Anthropocene, a geological period in which man is the dominant influence on the world around us to such a degree that our legal frameworks have become inadequate to manage the risks. Distressingly little thought has been given to the legal implications of the transformations that the Anthropocene is demanding of us.
Our key hypothesis is that it is inadequate to simply and uncritically ‘globalize’ our current understandings of law and governance to face this challenge. First, it is necessary to reconsider the concept and dimensions of a decision-making collective that includes nature and future generations. Second, we will need to reconfigure our notions of territorial jurisdiction in ways that overcome the simple division between the global and the local by instead positing distinctions in terms of the sustainability of earth systems.
This project aims at generating new concepts alongside new regulatory and institutional models. These ideas are being harnessed and developed within networks of key academic, professional, and policy actors. The project will also devise ways to educate the next generation of lawyers and legal scholars.
Transformative effects of Global Law: Judicial Lawmaking
Citizens and NGOs are increasingly addressing courts to force governments to change policy. This can be seen as an expression of the will to participate in public-decision making other than through voting and relying on the representative democracy. The reason this is happening has to do with a decline of the primacy of parliament in the legislative process both at the national and the European level.
Due to the pace of technological development, the legislature also relies increasingly on skeleton legislation and far-reaching delegation of regulatory tasks to non-elected executive agencies and private regulators. This forces courts to step in and act as regulatory watchdogs and more than occasional rulemakers where legislators fail to act, as is for example the case with regard to climate change law.
This research project concentrates on the increasing role of judicial lawmaking in a changing world. The traditional argument against judicial lawmaking and courts acting as more than ‘occasional legislators’ is that courts have no democratic legitimacy. This project, however, starts from the presumption that societal changes could change the role of courts legitimately.
What could it mean for courts to act as quasi legislators? What methods of lawmaking in a multilevel legal order can they apply and how do they seek legitimacy for their decisions? Besides answering these questions special attention is paid to the role of empirical data and scientific evidence to support judicial law making, and to how courts try to take into account the possible consequences of different possible decisions for society via, for instance, amicus curiae letters and court hearings.
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Call for applications: Research stay at ENGAGE.EU Think Tank27th January 2022
Are you looking for a platform where you can focus on your research and push your project forward together with fellow researchers? At the ENGAGE.EU Think Tank, you can exchange your ideas with new research groups, get together with long-standing colleagues, and learn from leading experts from industry, politics, and academia. This forum allows you to completely focus on a research project – away from everyday business. The ENAGAGE.EU Think Tank is at the University of Mannheim from 26 September to 2 October 2022.
Lack of solidarity EU Member States in times of crisis undermines European Union's founding values24th January 2022
Unless the EU’s asylum policies will be reformed to meet the requirements of solidarity between Member States, we will see a perpetuation of recurrent crises, and in the longer term potential disintegration due to the erosion of the EU’s common values.
New publication: Online Academic Education: What to Keep and What to Drop?13th January 2022
The fourth volume in Tilburg Series in Academic Education has been published, entitled: 'Online Academic Education: What to Keep and What to Drop?' This issue examines the consequences of the COVID-19 pandemic for education within our university.