Conceptualizing legal change as ‘norm-knitting’ through the example of the environmental human right

Abstract

Understanding law as a continuous process with circular and interacting phases of selection, construction, and reception makes it possible to account for the variety of actors and resources implicated in the process of incrementally changing a norm of international law. This process is visualized through an analogy to knitting. One can start the knitting project with one needle, but to actually construct anything, more than one needle is necessary: at least two actors need to collaborate and build upon each other’s work. If those two actors neatly agree upon the pattern to be knitted, the resulting product may be uniform and dense, able to cover all situations it is intended for. However, it is not that easy to knit in exactly the same pace and pattern. The constructed law may not fit perfectly all situations it is intended for, because the different actors may have had different patterns in their head. Also, sometimes, the wool is held too tightly, and the net becomes too dense; sometimes the wool is held too loosely, and the net will have holes. With this visualization in mind, we can think of legal changes as continuously intermingling and building upon each other: international law is generally knitted with different colours of wool, each colour representing a different normative resource. Thus, ‘norm knitting’ provides for an analytical tool that makes it possible to demonstrate the variety in ‘successful’ change of a given norm in international law in response to specific challenges which the actors face.