Post-national (international) law at the end of history

The post-Cold War world has seen the rise of global governance, a governance by international institutions that increasingly manages to bypass the traditional mechanisms of international law-making and, more importantly, domestic procedures of incorporation. This has put into question the legitimacy of the international legal order for which legal scholars have put forward proposals for reform – a post-national legal order. What they see is the democratic deficit of global governance and propose models of legal order that try to fix it. However, what they do not justify is their basic assumption: why democracy (and equality and rights) in a world that is increasingly rejecting it? By not justifying this assumption, legal scholars have withdrawn themselves from the next ideological debate: why are democracy and rights the best alternatives for a future legal order

Transnational Law’s Legitimacy Challenge for International Courts

Transnational law raises important but complex questions, not least with respect to our understanding of legitimacy. This chapter reflects on how the development of transnational law may affect the legitimacy of international courts, such as the European Court of Human Rights (ECrtHR). It does so through the adoption of an organizational sociology model of legitimacy, which is able to address some—though not all—of the new challenges raised by the characteristics of transnational law. It becomes clear that as international law is used as a vehicle for the development of transnational legal norms, international courts are increasingly used to legitimize such norms. While this can strengthen the position of international courts through continued and increased relevance in transnational processes, it can also weaken their legitimacy if such developments alienate the respective courts from their original constituencies