Institutional Legal Theory Research Articles

The IAD-SES-ILT model in assessing the governance of a river basin

This paper presents the IAD-SES-ILT heuristic model built from the combination of the Institutional Analyzes Development (IAD) framework of Elinor Ostrom and the Institutional Legal Theory (ILT). Using the grammatical syntax for the examination of institutional statements, proposed by Crawford and Ostrom, the structure of the Action Situation levels (Constitutional, Collective and Operational Choice) that make up the governance of the Hydrographic Basin of the Metropolitan Region of Fortaleza was analyzed . It was possible to show that the legal view introduced to the IAD-SES by ILT added new values to the institutional approach, allowing an assessment of governance regarding the respect for the principles indicated by the OECD as necessary for good governance of water resources.

An empirico-legal analytical & design model for local smart energy systems: Applying the ‘ILTIAD’ model, combining the IAD-Framework with Institutional Legal Theory

<span lang="EN-GB"><span style="font-size: medium;">This article presents a new framework for analysis and design of legal-governance settings for collective action challenges, particularly of local (smart) microgrids, with a focus on related local planning. The framework connects Ostrom’s IAD-Framework with Institutional Legal Theory (ILT), to foster proper understanding of both empirical and legal-prescriptive elements. This is relevant to state of affairs analyses, but also to design-oriented analysis towards institutional change of legal settings for local smart systems. The proposed framework connection (named ‘ILTIAD’) contributes to a proper empirico-legal understanding of existing and possible improvements in public-private arrangements relevant to bring about innovations of the said local microgrids. </span></span> <span lang="EN-GB"><span style="font-size: medium;"> </span></span> <span lang="EN-GB"><span style="font-size: medium;">A three-step conceptual approach is presented. The first step is about relating local smart microgrids to the concept of a collective action and explaining the relevance of adding an ILT perspective to the IAD-framework. The second step is to frame the connection between IAD and ILT (as ILTIAD) with a view on relevant action situations. To this end, Ostrom’s ‘rules-in-use’ are connected to legal ‘rules-in-form’. This institutional rule-perspective is then aligned with action situations at Ostrom’s four analytical levels, considering that different legal institutions are relevant to the content of action situation rules. In the third step, the institutional rule-perspective is placed in the specific legal setting of an example for a Dutch Crown Decree on experiments for decentralized renewable energy projects. We demonstrate how the abstract ILTIAD-framework provides a lens to identify legal aspects as constraints and opportunities within action situations. Furthermore, we show from a design perspective how the framework can help identify gaps and conflicts when establishing and maintaining particular local smart microgrids. In doing so we also connect to dynamic aspects of underlying transition justice concerns, following energy expansion versus energy democratization frames. In conclusion the article reflects inter alia on some analytical and methodological aspects of ILTIAD as compared to the IAD-framework.</span></span>

Smart design rules for smart grids: analysing local smart grid development through an empirico-legal institutional lens

This article entails an innovative approach to smart grid technology implementation, as it connects governance research with legal analysis. We apply the empirico-legal ‘ILTIAD framework’, which combines Elinor Ostrom’s Institutional Analysis and Development (IAD) framework with institutional legal theory (ILT), to an empirical case study of a local smart grid project. Empirical data were collected in an exploratory, descriptive example study of a single case, focusing on the Action Situation and interactions towards establishing a local Smart Grid. The case was chosen because of its complexity, following the ‘logic of intensity sampling’. Data triangulation took place combining participatory observation, semi-structured interviews, and document analysis. Through an exploratory case study, we showed how the ILTIAD framework can help reduce complexity in local decision-making processes on smart grid implementation, as it allows for analytical description and prescriptive design of local smart grid systems. In the analysis we addressed ownership arrangements and contracts and identified barriers and opportunities for realizing a local smart grid system. The design part includes a scenario which revealed the prescribed patterns of behaviour (liberties and abilities) and the consequential aspects that apply to each situation. Analysing and designing normative alignment ex ante to the planning and implementation of a smart grid system provides clarity to stakeholders about their current opportunities. For this reason, the ILTIAD framework can be used as a design guideline for establishing new and integrated smart grid projects.

War as an Institutional Fact: Semiotics and Institutional Legal Theory

In institutional legal theory, norms and facts are reciprocally operating elements: an interplay in which meaning construction is closely connected with acting: the pragmatic understanding of legal language in terms of its uses. With the semiotic elements of institutional theory, extended by the notion of ‘semiotic groups’, an analytical framework can be constructed to analyze a case study on the shifts in the concept of war which have taken place since the 1945 UN Charter and in the aftermath of 9/11. The semiotic aspects of the institutional approach can offer insight into the complexity of the processes of meaning attribution in the field of law and war.

Making sense of accountability in international institutional law

This contribution focuses on the accountability of international governmental organisations as a conceptual problem. To that end it gives a quite extensive summary of the Final Report of the International Law Association on the subject and examines whether accountability can be conceptualise as an actual or potential part of the existing legal system of international organisations. Mainly because of the underlying traditional approach to international (institutional) law, it is asserted that the ILA does not really succeed in this objective. Inspired by a more realistic view of the plurality of modern legal systems – as developed by the institutional legal theory – an alternative legal concept of accountability of international organisations is presented. Based on the fundamental value that legal power entails legal accountability, the legal concept covers all situations of alleged non-compliance by international organisations with a legally valid – but not necessarily also legally binding – rule of international law. For the time being such a concept will be heavily contested in theory and practice. However, for that very reason it can help to stimulate the development of international institutional law as long as the international legal community actually believes in the fundamental value and the divergent views only concern the content of the rules and practices involved in the accountability of international organisations.

Is Transaction Cost Economics Applicable to Public Governance?

The applicability of Transaction Cost Economics (TCE) to the public sphere is examined with the use of institutional legal theory. First, Oliver E. Williamson's 1985 general theory of private governance structures is analyzed. Following on this, his 1999 attempt at extending the theory to capture governance structures in the public sphere as well, is analyzed with the use of the insights gained from the first stage. Finally, on the basis of the whole two-stage analysis, an attempt is made at solving some fundamental problems concerning the applicability of TCE to public governance.

Types of Institutions as Patterns of Regulated Behaviour

Nowadays, neo-institutionalistic approaches are prominent in economics, political science, the science of public administration and sociology. There is a general complaint about the vagueness of the concept of institutions and the apparent disparity of phenomena falling under it. This article shows how institutional legal theory provides a typology of institutions as sets of rules and corresponding patterns of regulated behaviour that can help to avert much confusion. The typology’s usefulness is tested by applying it to an array of private governance structures distinguished by transaction cost economics.

A New Conceptual Framework for Analysing a Case Study on ICT and the Sanctity of the Home

The case study shows the complex reality with respect to processes of meaning construction. Ruiter’s framework provides a more sophisticated instrument to analyse these complex processes. Unlike the classic models of legal communication, based upon a linear causality between norm and action, and unlike the dual model of interplay between legal institutions and institutional legal facts developed by MacCormick and Weinberger’s Institutional Legal Theory (ILT), the tripartite model of interplay between rule, application, and social practices, stemming from Ruiter’s analysis of ILT, can contribute to a more refined model of legal communication.

Economic and legal institutionalism: What can they learn from each other?

The main argument of this paper is that both constitutional political economy and institutional legal theory can benefit from adopting certain central notions from each other. On the one hand, the legal notion of validity can help to clarify certain obscurities concerning the mode of existence of institutions in constitutional political economy. On the other hand, the economic notion of voluntary choice can serve as a point of departure for institutional legal theory in developing substantive criteria for the evaluation of legal systems without appealing to natural law ideas.