Prior Use and the Distribution of Observational Capacity in State-Dependent Governance

Abstract

A governing rule whose content depends on the dynamical state of the system it governs requires that the state be determined. Where the system exhibits a critical value above which ordinary conduct produces irreversible foreclosure, the determination that the system has approached that value carries the whole of the rule's practical force, and the question of which party is competent to make it becomes the governing question. This paper argues that the competence and the interest converge. The capacity to determine the state of such a system consists in instruments, records and continuous observation, and these are acquired in the course of using the system. A determination that the system stands near its critical value contracts the permissions of every party and bears most heavily on parties whose use lies in prospect. The party best equipped to make the determination is accordingly, and systematically, the party the determination favours. The paper establishes the convergence formally under stated assumptions about the acquisition of observational capacity, distinguishes it from the classical problem of emergency authority by the respect in which the epistemic asymmetry is prior to the legal one, and establishes that the two responses developed for emergency authority both presuppose a separation between determining the state and being a party to the outcome that the present case denies. Three consequences are drawn: constraint by ex ante criteria requires an evaluator holding the instruments; termination conditions keyed to the state inherit the same defect as the trigger; and a party disadvantaged by a determination lacks the standing to contest it on evidential grounds. The paper closes by deriving, from the results established, the conditions any defensible arrangement would have to secure, and it offers those conditions as the constructive form its findings take.