Global Law as Intercontextuality and as Interlegality

Since the 1990s the effects of globalization on law and legal developments has been a central topic of scholarly debate. To date, the debate is however marked by three substantial deficiencies which this chapter seeks to remedy through a reconceptualization of global law as a law of inter-contextuality expressed through inter-legality and materialized through a particular body of legal norms which can be characterized as connectivity norms. The first deficiency is a historical and empirical one. Both critics as well as advocates of ‘non-state law’ share the assumption that ‘law beyond the state’ and related legal norms have gained in centrality when compared with previous historical times. While global law, including both public and private global governance law as well as regional occurrences such as EU law, has undergone profound transformations since the structural transformations which followed the de-colonialization processes of the mid-twentieth century, we do not have more global law relatively to other types of law today than in previous historical times. The second deficiency is a methodological one. The vast majority of scholarship on global law is either of an analytical nature, drawing on insights from philosophy, or empirically observing the existence of global law and the degree of compliance with global legal norms at a given moment in time. While both approaches bring something to the table they remain static approaches incapable of explaining and evaluating the transformation of global law over time. The third deficiency is a conceptual-theoretical one. In most instances, global law is understood as a unitary law producing singular legal norms with a planetary reach, or, alternatively, a radical pluralist perspective is adopted dismissing the existence of singular global norms. Both of these approaches however misapprehend the structural characteristics, function and societal effects of global law. Instead a third positon between unitary and radical pluralist perspectives can be adopted through an understanding of global law and its related legal norms as a de-centred kind of inter-contextual law characterised by inter-legality

Judging Inter-Legality

Peer reviewe

Introdução: governança global e Direito Administrativo global na ordem legal internacional = Introduction: global governance and global administrative law in the international legal order

Publicado em inglês sob o título “Introduction: global governance and global administrative law in the international legal order”, originalmente em The European Journal of International Law, v. 17, n. 1, p. 1-13, Feb. 2006

Foreword: Global Governance as Administration — National and Transnational Approaches to Global Administrative Law

By way of overview, we set out in this Foreword some core elements of the concept of Global Administrative Law that animates this symposium; these ideas are developed in greater detail in the framing paper by Kingsbury, Krisch and Stewart.2 We then note briefly some of the many elements that are developed in the other nine papers in the symposium. Taken together, these symposium contributions provide substantial evidence that a Global Administrative Law is emerging within a global administrative space, and that this field of law and practice is worthy of study, theorizing, and more systematic and reflective development. The contributions also confirm that this emerging field is highly variegated: Global Administrative Law is emerging in different ways in different settings involving different types of regimes and subjects of regulation, building different structures and procedures of accountability, to suit different needs, in response to different actors and incentives. Global Administrative Law is evolving through observation, critique, and borrowing across national legal systems that are increasingly interdependent. Different systems of national administrative law are also furnishing concepts for global regimes to borrow. Those regimes are also developing independent and novel responses to their specific institutional setting and accountability issues. This symposium represents a first effort to survey the different elements of these important trends and pose questions for further analysis and development of the field of Global Administrative Law

‘Rules about rules’ and the endogenous dynamics of international law: Dissonance reduction as a mechanism of secondary rule-making

We can observe some developments that indicate a further strengthening of human rights and the rule of law even after 2001. These developments are puzzling as they occurred despite largely unfavourable scope conditions. This article offers an account of these developments that focuses on dynamics endogenous to the law. These internal dynamics provide a causal mechanism that sets in once a certain threshold of legalization has been reached. We employ the Hartian notion of secondary rules which we think is an especially helpful conceptual tool to analyse the endogenous dynamics of legal systems. To the extent that law is programmed towards consistency, secondary rules become necessary in an environment of rapidly increasing legal density to govern the complexity resulting from this proliferation of norms. Upholding consistency is necessary to maintain the autonomy of law in a Luhmannian sense and the ‘morality’ of the legal system in a Fullerian sense. Our goal is to show this and at the same move beyond an argument of system or normative functionality by identifying causal mechanisms that can explain the law’s built-in drive towards secondary rules, and that are in accordance with broader social science theory. We use some insights from cognitive psychology to develop these causal mechanisms further. While testing these causal mechanisms would be beyond the scope of this paper, we hope to provide the conceptual tools for future empirical research on the dynamics of secondary rule-making and offer some empirical illustrations to demonstrate how dissonance reduction operates in practice.Dieser Beitrag ist mit Zustimmung des Rechteinhabers aufgrund einer (DFG-geförderten) Allianz- bzw. Nationallizenz frei zugänglich / This publication is with permission of the rights owner freely accessible due to an Alliance licence and a national licence (funded by the DFG, German Research Foundation)