Towards a Discourse-Theoretical Account of Authority and Obligation in the Postnational Constellation (original) (raw)
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No doubt we have been observing in recent years the phenomena inclining us towards reflection about the possible axiological and normative transformation of the international law paradigm1. In general, we observe an attempt to constitutionalize international law that evolves from a primitive set of first-order rules to a broadly understood system with a complex internal structure. Some authors even talk about the rise of Global Law2 built over traditional international law. Others call it Humanity’s Law3. It must be admitted that constitutionalization is nowadays a very attractive concept, albeit still “the unsolved riddle”4. The doctrine also indicates a tendency to the opposite process, i.e. international law fragmentation caused by the increasing differentiation of individual spheres of international cooperation5. Autonomous normative systems that regulate individual spheres of international relations are created – they include both substantive and procedural rules. Contemporary ...
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The concept of authority has become increasingly palatable to scholars in law, political science and philosophy when describing, explaining and assessing global governance. While many now seem to agree that applying authority to transnational relations opens fruitful arenas for legal, empirical and normative research, they rely on partly incompatible notions of authority, how it emerges out of and affects the social relations between key actors, and how it relates to legitimacy. In this paper, we introduce this special issue on transnational authority. We discuss why international authority has become a central concern in international studies and compare key contemporary conceptions of international authority, highlighting their strengths and weaknesses. We also present the different contributions to this issue, which further seek to clarify the concept and its application in law, political science, and political theory, theoretically or empirically, assessing arenas where authority is or is not legitimately exercised and developing legal conceptions, which might be utilized to constrain the use of authority in international relations.
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This paper addresses some of the conceptual challenges that internationalisation of the rule of law creates for its conventional political and legal doctrines. It is first of all submitted that domestic and international jurisprudence exist and develop as two ‘pocket universes’ in a sense that they belong to the same fabric of reality and share some of the fundamental features, but at the same time many concepts shift their meaning when moved from one pocket to another. This is of a paramount importance for the idea of the rule of law, which in domestic setting was forged in the flame of civil wars and struggles against the absolute powers of kings, princes, and nobles. This history and such struggles are something international law has never known, and for this reason any direct transplantation of the domestic images of the rule of law to international realm are doomed to fail. This entails a need in deconstructing the rule of law and stripping it down of ideological and historical layers. Its core meaning, though seemingly trivial (‘laws must be obeyed’), brings a normative claim relevant to any legal order. For the subjects to obey the law, it must at the very least provide for the practical opportunity of obedience, i.e. law’s claim to authority must be realisable. From such a perspective, the idea of the (international) rule of law appears to be linked to the idea of authority of (international) law. The article further addresses the differences of the structures of authority in domestic and international law by submitting that authority can be mediated or unmediated. Mediation of authority, typical for domestic law, presupposes the existence of officials that are functionally and institutionally differentiated from the subjects of law; this picture of authority also grounds the narrative of the rule of law as developing from ‘thin’ to ‘thick’. Authority of international law is by and large unmediated because of its horizontal nature, which also entails that the metaphor of ‘thin’ and ‘thick’ rule of law is of little relevance here; both formal and substantive virtues of law count together and may get interchanged as pieces of Lego. Such reconstruction allows to reframe the central concern of the international rule of law enquiries. Instead of trying to fit it to the procrustean bed of domestic theories, international legal scholarship must focus on defining conditions under which international law’s claim to authority is realisable.
It has been common in recent years to contrast modern and classical international law-making, depicting the former as dynamic and heterogeneous, and the latter, as state-centric and “doctrinal.” This doctrinal image is characterized as state-centric both in terms of the actors involved in rule-making processes and the nature of the rules themselves. In short, an actor’s ability to make law is limited by their international legal personality, whilst the rules which result have legal “pedigree” only if traceable to one or more of the formal sources of international law. Accordingly, doctrinal understandings are often depicted negatively as cementing the hegemony of the state as (almost) the sole international law-maker. However, the argument that I wish to defend in this paper is that these kinds of characterization of doctrinal approaches not only fail to grasp the openness of international law to other actors as participants in international law-making processes, but also miss what is important about doctrine in the context of international law. Accordingly, the central question posed in this paper is how international law should accommodate the increasingly complex array of actors involved in normative standard setting (rule-making) within the international legal system, including how it absorbs or understands the nature of those rules themselves. In particular, I want to consider to what extent one can retain a formalist (doctrinal) understanding of the subjects and sources of international law yet at the same time account for the array of actors involved in post-national rule-making. I will argue that any attempt to absorb within international law the range of actors and forms of normativity that exist as a result of the increasing “institutionalization” that has occurred throughout the twentieth and twenty-first centuries creates a significant tension between legal form and function, particularly with regard to the roles which many of these regimes and institutions have come to fulfil within the international system. Nevertheless, I will argue that this tension between form and function is an important part of securing some measure of legal accountability in a decentralized legal order such as international law.
The turn to authority beyond states
The concept of authority has become increasingly palatable to scholars in law, political science and philosophy when describing, explaining and assessing global governance. While many now seem to agree that applying authority to transnational relations opens fruitful arenas for legal, empirical and normative research, they rely on partly incompatible notions of authority, how it emerges out of and affects the social relations between key actors, and how it relates to legitimacy. In this paper, we introduce this special issue on transnational authority. We discuss why international authority has become a central concern in international studies and compare key contemporary conceptions of international authority, highlighting their strengths and weaknesses. We also present the different contributions to this issue, which further seek to clarify the concept and its application in law, political science, and political theory, theoretically or empirically, assessing arenas where authority is or is not legitimately exercised and developing legal conceptions, which might be utilized to constrain the use of authority in international relations.
Global Constitutionalism, 2016
This article argues that a distinction between the public and the private is both desirable and feasible in times of global governance, at least as a regulative idea. The confusion surrounding this distinction originates in different understandings of the relationship between state and society in liberalism and republicanism. Discourse theory with its idea of the co-origin of democracy and human rights reconceptualises the relationship between state and society in a way that does justice to both liberal and republican approaches. Accordingly, the public/private distinction is crucial for the realisation of democracy and freedom. Classifying an act as public or private determines what kind of legitimacy it requires. The article then recalibrates discourse theory to face the challenges of global governance, shifting its focus from hard law to a broader notion of authority, and from the state to a pluralistic, cosmopolitan world order composed of multiple overlapping communities. A community is characterised by communicative action and a common identity. In such a setting, public authority is the authority exercised on behalf of a community in relation to its members. In relation to non-members, the same act may constitute an exercise of private authority. It is a different question whether such authority is legitimate. Some examples illustrate the approach.
Sovereignty, Rights and Justice: International Political Theory Today
Acta Politica, 2003
is certainly not a newcomer to the field of international political theory. Everyone who is interested in the normative dimensions of international relations has probably read at least one of the numerous articles and books he has written on the topic. His work can be seen as an ongoing attempt to give distinctive meaning and shape to the discourse of international political theory; however, most of his books remain, unfortunately, at an introductory level. In the early 1990s, he published International Relations Theory: New Normative Approaches, which contained an analysis and evaluation of the debates that were generated by the then new normative theories of international relations. This book was followed in 1997 by Understanding International Relations (revised edition 2001), which tried to give an overview of the state of international relations theory. According to Brown, his latest book Sovereignty, Rights and Justice (2002) can be seen as complementary to Understanding International Relations. The former examines a number of roads not taken by the conventional discourses of international relations that are described in the latter and might therefore be of more interest to political theorists. Although not formally divided, the book contains two quite distinctive parts. Chapters 2-4 present a historical outline of the development of international thought. The second chapter starts out with an analysis of the modern statessystem or Westphalia System and its 'origin' in the Treaties of Mu¨nster and Osnabru¨ck that ended the Thirty Years War in 1648. It examines two types of discourse that are normally associated with this system, that is the 'law of nations' and the 'society of states'. Both types of discourse are connected with four basic norms that are constitutive of the Westphalia System: (1) sovereign states and not individuals are the actors in the system, (2) states are legally equal and are guided by the norm of non-intervention, (3) states have a right to defend themselves but are normally not aggressive, and (4) the only binding rules that exist between states are of a procedural kind and apply mainly to the practice of diplomacy and the making of treaties (p. 35). These four norms can
Beyond hypocrisy? Debating the ‘fact’ and ‘value’ of sovereignty in contemporary world politics
International Politics, 2009
It is no exaggeration to say that sovereignty is the foundation both of International Relations (IR) as a field of enquiry and of international politics as an "actual existing" field of practice. Whether seen as the archetypal IR101 topic or in debates about the rights and wrongs of humanitarian intervention, the capacity of international organisations to exert control over significant spheres of international politics, or in discussions about the legitimacy of bodies such as the International Criminal Court (ICC), sovereignty appears as the central referent point of international politics. Over recent years, however, there has been considerable debate over both the substantive content ("fact") and normative framing ("value") of sovereignty. The former comes about as a result of a series of political, economic and security challenges which see states as assuming a role as "one-amongst-many" in an increasingly complex international topography; the latter stems from concerns about whether national states form the optimal site for the articulation of authority claims. This forum engages with both of these debates, focusing on how they relate to understandings of the emergence, development and possible emasculation of sovereignty in the contemporary world. In the introduction to the forum, we outline the ways in which scholars have contested the emergence of the sovereign state and examine the ethical issues surrounding the normative value of this form of rule. In the process, we lay out the ways in which the papers which make up this forum make uncomfortable, if important, contributions to the debate about the fact and value-or "is" and "ought"-of sovereignty in contemporary world politics.