How can the law help in such tense situations? One influential (“systems”) theory of law argues that modern societies evolve into increasingly specialized sub-systems, such as law or science. Each has its own function and “discourse” or way of interacting with the others. This is mainly a descriptive socio-legal theory. But one normative implication is the need to preserve the relative autonomy of each, so that their complexities promote overall stability of the social system. Accordingly, the law should not simply rubber-stamp the substantive conclusions of scientists, nor their own processes of generating those conclusions. Nor should the law be completely subsumed into politics or economics. Unfortunately, that tends to be happening too much with the Whaling Convention and the IWC. Going to the other extreme, and prioritizing ethics over other subsystems’ discourses, is dangerous too.
For law to add value to the controversy over whaling, we need to open it to the various subsystems just enough to allow the law to apply and develop its own discourse to complex socio-economic problems. That, in turn, can feed back into the other subsystems in more productive ways for contemporary society. The way WTO law brings in economics and science is instructive, although not perfect. On whaling, even a soft bilateral (or trilateral) agreement involving Australia and Japan may help; we don’t necessarily need to wait for a new multilateral regime. Especially if the law does what it does best, which is to institutionalise transparent processes of reasoned debate, intersecting with multiple discourses evolving in other social subsystems.