Antagonistic recursivities and successive cover‐ups the case of private nuclear proliferation

Grégoire MALLARD

"Legal recursivity" is a concept introduced by socio‐legal scholars to capture the progressive elaboration of transnational rules through policy linkages at the international and domestic levels, and the associated jurisdictional expansion of international institutions to new policy areas. Recursivity can take many forms, and this article introduces the concept of "antagonistic recursivity" to capture a dual process of recursive legal innovation and antagonistic obstruction by the same policy actors. The article shows how such antagonistic recursivity worked in the case of the global fight against private nuclear proliferators after the 2003 revelations about the reach of the A. Q. Khan network. In the case under study, antagonistic recursivities took the form of executive-driven innovation in rule-making and simultaneous subversion of the same rules by the executive most implicated in the new cycle of policy innovation: the United States government. This paradox can be explained in the following manner. Antagonistic recursivity, the article demonstrates, is likely to emerge when legal rules of global governance have already been previously defined in an opaque manner, so as to help hegemons follow multiple foreign policy goals: the subversion of the most recent policy innovations is then the unfortunate result of attempts to hide prior cover-ups rather than a purposeful violation of new rules.