The limits of normative legal pluralism: Review of Paul Schiff Berman, 'Global Legal Pluralism: A Jurisprudence of Law beyond Borders' (original) (raw)
Related papers
The American Journal of International Law, 1987
Tony Carty criticizes public international law on the basis of its own theoretical foundations. He does not condemn international law for political naivety, Eurocentrism or imperialist sympathies. He neither bemoans its historical infancy nor chastises its moral failures. Since international law cannot sustain its claims to comprehensiveness without jettisoning its predominant theory of the state, Carty argues, international society is best thought of as a Hobbesian state of nature. Carty's argument is difficult to untangle because he advances a number of organizing themes for the divergent issues pursued in his seven short chapters. Carty's most telling criticisms are directed at international law's claims to "completeness." He argues that international law claims to "define comprehensively the rights and duties of States towards one another" and to produce a complete geographic allocation of state jurisdictions. Carty traces these notions of normative and territorial completeness to two schools of European jurisprudence-the German historical school (e.g., Savigny) and the pure theory of law (e.g., Kelsen). Carty associates these notions of completeness with a theory of the state as a legally ordered system of competences. This state theory, anchored in 1 9th-century European nationalism, relies upon an unsustainable jurisprudence. The law that orders its competences cannot also regulate its coming into being. Once the state exists, moreover, it cannot fully regulate the coming into being of the law if it is to remain a system of legally regulated competences. As a result, Carty argues, "the completeness of the legal order is nothing more than a hypothesis" (p. 10). International law must choose between its theory of the state and its comprehensive jurisprudential claims. Several exemplary doctrines sharpen the contrast between state theory and jurisprudence. The inadequacies of self-determination doctrines developed to regulate the coming into being of international legal subjects expose international law's dominant state theory. Absent some doctrine relating the people and territory to the state (a relationship not sustained by selfdetermination doctrine), state theory must rely upon jurisprudence to complete the normative and territorial order of jurisdictions. Carty finds the doctrines that might establish these jurisprudential claims inadequate. Just as doctrines about self-determination signaled the inability of international law to regulate the coming into being of its own subjects, so also sources doctrine about non liquet signals the inability of legal subjects comprehensively to regulate the coming into being of their law. Similarly, doctrines about territorial jurisdiction, designed to complete the grid of sovereign authority, remain little more than "hypotheses" about a pattern of authority that must be established by states. Carty's critical method is familiar and powerful. One identifies two elements of legal consciousness-here a theory of the state and a theory of 1987]
Public international law hovers between cosmopolitan ethos and technical specialization. Recently, it has di¡erentiated into functional regimes such as 'trade law', 'human rights law', 'environmental law' and so on that seek to 'manage' global problems e⁄ciently and empower new interests and forms of expertise. Neither of the principal legal responses to regime-formation ^ constitutionalism and pluralism ^ is adequate, however.The emergence of regimes resembles the rise of nation States in the late nineteenth century. But if nations are 'imagined communities', so are regimes. Reducing international law to a mechanism to advance functional objectives is vulnerable to the criticisms raised against thinking about it as an instrument for state policy: neither regimes nor states have a ¢xed nature or self-evident objectives. They are the stories we tell about them.The task for international lawyers is not to learn new managerial vocabularies but to use the language of international law to articulate the politics of critical universalism.
The purpose of this book is to reconstruct the concept of “international community” and to provide a general picture sketched from the perspective of a bird’s-eye view of the theory and philosophy of international law. The aim is not so much to define international community but rather to attempt to understand the phenomenon in its wider normative, historical, cultural and socio-political context. Thereby, the book draws the reader’s attention to the significance of an issue generally neglected by the science of law as well as to the relation of the notion with the array of crucial problems of international law. The title reflects the conviction, that the process of constitutionalization of international law is convergent with the advancement of pluralist international society towards a true solidarist community.
International Law as Law (2010)
CAMBRIDGE COMPANION TO INTERNATIONAL LAW, James Crawford and Martti Koskenniemi, eds., 2010, 2010
This draft chapter is an attempt to discuss debates on the character of international law as a legal system. The chapter seeks to identify certain ideal-typical characteristics of international law and sees how those affect the debate on whether international law is "really law." It suggests that international law's distinctiveness is that it is a legal system that resists both reform through centralization, absorption by empires, or dissolution through privatization. Note: this is a non-edited version, only the published version is complete and quotable.
Introduction to "Symposium on Cosmopolitan Law and the Courts" - Transnational Legal Theory 2016
The thesis of a "cosmopolitan turn" of a state's constitutionalism has quite extensively influenced the debate over the contemporary transformation of international law. 1 A Copernican revolution of sorts, it has consisted not only of a phenomenological shift, but also of the creation of a new paradigm for the definition of legitimate domestic orders. The cosmopolitan turn has also run parallel to the constitutionalization of international law. Here, constitutionalization is neither simply a process of legalization nor, obviously, a constitution as such. 2 This is due to the fact that constitutionalization implies a number of processes which international law undergoes together with a multiplicity of purposes that are served therewith. It indicates the transformation of bilateral or multilateral agreements into higher order principles of wider scope. In order for this transformation to be possible, a shift in reasoning should precede, one moving away from an instrumental, technocratic form into a value-based approach of legal reasoning. This value inclusion within legal thinking is what the term "constitutionalism" aims to capture. As a mode of reasoning -as a "mindset" -constitutionalism subordinates laws to values such as those of equality, human dignity, or freedom. 3 Constitutionalism though indicates also a process of self-reflexivity. It
Introduction: International lawmaking in a global world
Research Handbook on the Theory and Practice of International Lawmaking, 2000
International lawmaking in the past 70 years has become increasingly varied and has come to involve different loci of authority, levels of governance and shades of normativity. The perception that our time is very different from the early days of the United Nations era has inspired for example the well-known psychedelic image of [a] brave new world of international law where transactional actors, sources of law, allocation of decision function and modes of regulation have all mutated into fascinating hybrid forms. International Law now comprises a complex blend of customary, positive, declarative and soft law. 1