The Anatomy of Legal Change

By Ezgi Yildiz
Postdoctoral Researcher, Global Governance Centre, Graduate Institute of International and Development Studies & Fellow, Carr Center for Human Rights Policy, Harvard Kennedy School
ezgi.yildiz@graduateinstitute.ch

On 4 July 2018, the Global Governance Center hosted a brainstorming workshop for the PATHS project. Over 20 participants with diverse expertise in the fields of International Law, International Relations, or the intersection of the two, attended the workshop and shared their insights for studying legal change.

One of the questions raised during the discussions that stayed with me was how to study legal change at the global level. Legal change transpires in various forms and across different levels of governance, and it is challenging to discern different change patterns. Nevertheless, this does not mean that one should shy away from investigating how legal change comes about. This is precisely what the PATHS project aims to achieve.

For this purpose, a good starting point is to understand the internal dynamics of change, or put another way, the anatomy of change. Drawing on examples from my own work on the evolution of the norm against torture and inhuman or degrading treatment, I will provide a sketch of a framework to guide the classification of different types of legal change across two dimensions: (i) the depth of legal change; and (ii) the pace of legal change.

Depth of Legal Change

To understand what I mean by depth of legal change, it is important to note that norms have different components. They have a core, which contains their main logic, and peripheries, which cover the areas of the norm’s application. For example, in the case of the norm against torture and inhuman or degrading treatment, the core is “not causing pain or suffering or impairing victims’ dignity.” Its peripheries represent the application of this logic in different settings (such as prisons, health care institutions), or in the context of specific vulnerable groups (such as women, children or disabled individuals).

The depth of change concerns where the transformation takes place: in the core or at the periphery. If the change reaches to the core, then the internal logic of the norm changes. For example, in the case of the norm against torture this most remarkably happened when the norm began covering mental pain or suffering, especially after victimology studies demonstrated the mental impacts of torture. Similarly, another fundamental change in the core happened when it became commonly accepted that the norm does not only entail obligations to refrain from doing something (i.e. torturing or subjecting someone to inhuman or degrading treatment). With the introduction of positive obligations under this norm (also known as obligations to protect, fulfill and punish), states became obligated to take measures to protect victims from acts perpetrated by state or private agents. As seen in these examples, the internal logic of the norm is rewired when the change is in the core.

Alternatively, change might occur only at the norm’s outer limits. This means that its scope might expand by means of bringing new issue areas under the remit of an existing norm. An example to that effect is when the norm against torture began covering the treatment of mental health patients – beyond groups that are traditionally associated with the norm such as prisoners or detainees. As a result, a new victim group in a new setting (mental health institutions) could seek protection under this norm. Likewise, the scope might narrow when it is decided what the norm does not cover. To illustrate, states’ obligation to prevent suffering does not go as far as facilitating euthanasia for terminally ill patients. Hence, the change at the periphery concerns the areas the norm can be applied to by expanding or narrowing the norm’s coverage.

Pace of Legal Change

Another important analytic dimension is the pace of change. Change can be incremental (evolutionary) over a long period of time by means of iterative events, or sudden (revolutionary) often in reaction to a crisis or as a result of specific campaigns by change agents. Revisiting the example of the norm against torture, one can see that the minimum level of severity criteria – required for an act to be considered torture or inhuman or degrading treatment – have incrementally decreased over time. However, states’ failure to take preventive measures in domestic violence cases was recognized as constituting a violation of the norm against torture and inhuman or degrading treatment after several landmark judgments (here and here) in a swifter manner.

These characteristics have implications for the way the patterns of legal change can be studied. For incremental change, more attention might be required to identify the exact moment of change, its underlying causes, or the influential actors triggering it. This picture is different for sudden changes. It is often easier to pinpoint the actors proposing the change or the root causes due to the short time-span and the reactive nature of the change process.

Towards a Framework for Classifying Legal Change

The table below provides some guidance on studying the anatomy of legal change by structuring how the two factors discussed above can potentially interact:

Factors to classify legal change(s)

This preliminary framework comprises ideal-type characteristics of legal change – in terms of depth and pace – and serves as a heuristic device to classify change patterns more broadly. From the description provided above, it may appear that different types (sudden vs. incremental, or change at the core vs. change in the periphery) are mutually exclusive, which is not necessarily the case. They can surely work together in reality. Change can be brought about in different combinations. Incremental changes might lead to more sudden changes or follow them by deepening their effects. Changes in the periphery might reach to the core or changes at the core might be complemented by changes in the periphery. Change is an accumulative process after all.

Rather than fully documenting how each change transpires, this framework – when completed –  will serve as a mental map to categorize different change patterns. The overall purpose is to guide researchers on how to study legal change, which is a task that I am looking forward to undertaking together with the PATHS team.

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