Session 7. 2.

In 2021, the Biden Administration released Executive Order 14008: Tackling the Climate Crisis at Home and Abroad. In part, this order mandated a coordinated effort among U.S. foreign policy and national security agencies to address the effects of climate change, specifically focusing on the concepts of mitigation, adaptation, and resilience. The Department of Defense, the Department of State, and the U.S. Agency for International Development (USAID) separately created foundational documents that address the challenges of climate change, each addressing mitigation, adaptation, and resilience. Despite this common thread, each agency varies in how it perceives these concepts. How might the differing perceptions on the challenges of climate change affect policy coordination among these agencies? Using the Institutional Analysis and Development Framework and the Institutional Grammar 2.0, this study examines how the constitutive statements within these four seminal policy documents define the institutions that address climate change within the national security construct. From this parameterization, a policy network structure can be analyzed to explore the level of cooperation and coordination inherent in the newly created policy, particularly focusing on the constitutive properties of mitigation, adaptation, and resilience.

International conservation governance is key to staving off transboundary threats to individual species and preserving the biodiversity upon which life on this planet depends. However, much remains to be learned about the formal institutional design of international instruments, and how that design may influence a treaty’s own conservation/sustainable use objectives. The Institutional Grammar (IG 2.0) advances a syntax that facilitates the examination of both regulative and constitutive institutional statements making it possible to gain a holistic understanding of the institutional design of any policy instrument.

This study capitalizes on the IG 2.0 to measure and analyze the internal institutional fit generated by the aspirations, objectives, and contextual parameters (constitutive statements), and the guidance provided to actors within the governance system (regulative statements) of four international conservation treaties with a focus on monitoring and enforcement mechanisms. First, the relevant statements in the convention texts are parsed into their syntactic elements to determine key actors, activities, and the stringency/necessity of actions/system parameters. Second, the parsed statements are coded by rule type to identify the prevalent monitoring and enforcement rule configurations using Ostrom’s regulative rule typology definitions which were expanded to constitutive rules. We also advance a new set of constitutive rule types to capture the unique aspirational and contextual parameters evident in constitutive statements.

The constitutive/regulative rule configurations were then analyzed to measure the horizontal institutional fit among monitoring and enforcement mechanisms in each treaty. Preliminary findings suggest that monitoring and enforcement are more effective in regimes where constitutive rules outlining governance aims and constraints are directly linked to the behavioral guidance expressed in regulative rules, whereas governance by aspiration, i.e., by a preponderance of constitutive rules, may be challenged in its implementation.

It is common to enrich legal debate with the principles of good governance or with data regarding the nature of goods or of services. Much less frequently, however, do we see the question of influence in the opposite direction: whether, in interdisciplinary research, it is the study of the commons that could gain from the application of legal constructs. I see such an opportunity in the interdisciplinary research on bundles of property rights. Law and the study of the commons operate on similar territory which in the commons research is centered around collective action, and in private law focused on the idea of contract. What unites both fields are the common phenomena of collective action, which happens even in a group of two members only, and the social dilemma of sharing goods and services. The study of the commons treats contracts as, at best, merely one of the de jure sources of property rights (in rem rights) to the resource, but a close study shows that arrangements in personam as seen operating especially in Roman law, but also in common law and civil law tradition, have, by contrast, much in common with de facto rights which originate among resource-users finding themselves at the bottom of collective action. In personam arrangements with a lower level of protection from third parties emphasize the principle of inclusion, while in rem arrangements representing strong property rights favor the principle of exclusion. Thus, in personam arrangements primarily serve to promote cooperation for governing the commons, including within a group of in rem rights holders.

Constitutions play a key role in defining the structure, roles, rights, and responsibilities of nation states. Extant research has analyzed how features of constitutional design contribute to the materialization of democratic principles, including the separation of powers (V. Ostrom, 2008; Brinks, Levitsky & Murillo, 2019; Levitsky & Ziblatt, 2019). Recent research applying the Institutional Grammar (IG) highlights the utility of the IG in deciphering how legal concepts are embedded within constitutions (DeMatee, 2023). Nevertheless, systematic use of the IG to characterize how specific characteristics of democracy materialize in constitutional architecture is yet to be developed.
This paper intends to make a twofold contribution to the literature. First, we use the IG 2.0 to understand how features of democracy materialize in Constitutional texts, using the theory of separation of powers as a basis for our analysis. Second, we aim to test, refine, and expand the current characterizations of the constitutive functions proposed by Frantz and Siddiki (2022). As such, we aim to answer a) what types of entities are being constituted in the constitutions of nation states, b) what types of constitutive functions are assigned to said entities, in relation to the principle of separation of powers, and c) whether, and if so how, do these entities and corresponding functions capture the theoretical features of the separation of powers.
To do this, we use a comparative case study approach. We purposefully selected constitutions from six countries, two in North America, two in South America, and two in Europe, to consider different legal traditions (common law and civil law) and regimes to conduct the study. Once identified, we focus on a particular subject of the Constitution, the provisions related to the separation of powers, and code each institutional statement using the IG. We later look for patterns and differences in the way each Constitution captures the idea of separation of powers.

Elinor Ostrom and Sue Crawford, in developing a grammar of institutions, intentionally focused on regulative statements, although they recognized the importance of constitutive statements. In consequence, most empirical applications of the grammar of institutions have largely focused on regulative statements, either omitting or understudying constitutive statements. Not until the development of the institutional grammar 2.0 by Saba Siddiki and Christopher Frantz, did scholars have a grammar for constitutive statements, allowing for the possibility of both statement types to be analyzed, compared, and integrated into a single approach. In this paper, we incorporate constitutive rules into the IAD framework by 1) extending the Ostrom rule typology to encompass constitutive statements, and 2) adding to and revising the components of the action situation to include constitutive statements. The c rule typology provides a classification scheme for constitutive statements like that for regulative statements, or what we label the r rule typology. Constitutive statements create the artifacts and contexts on and in which regulative statements operate. Conceptually, the c rule typology provides a systematic way for aligning related types of constitutive and regulative statements. Empirically, it allows institutional analyses to include the full set of institutional statements present in a rule document, providing more accurate depictions of the design or change of a policy. The c rule typology also requires the revision of the action situation, levels of action, and linked action situations, as constitutive rules bring into existence action situations and artifacts found and used in action situations, which are not currently accounted for. We use both the c and r rule typologies and revised action situations to empirically analyze a set of policies, identifying how constitutive and regulative statements and types interact to create linked action situations, and how the interactions change over time. Our findings showcase the utility of the c rule typology and revised action situations for better capturing institutional designs and understanding processes of institutional change.