It is a philosophical adventure for me to write a paper on such a difficult topic. Part of the adventure lies in the fact that the problem of the Other1 is difficult in itself. It is even difficult to be brought up in a philosophically forceful way. This can explain the fact that the problem of the Other is still hardly a philosophical issue in the Anglo-Saxon tradition. In the continental tradition, the most prominent philosophers who have tackled this problem (...) are postmodernists. They are against traditional Western philosophy because they believe it regards the West, and Reason, Men, Mind, and so on, as the centers of philosophy, while marginalizing or even excluding non-Western, unreason, irrationality, madness... (shrink)

In order to develop a deep and detailed reflection on global norms, international law scholars need to pay more attention to insights supplied by the discussions on the philosophical problem of universals. Using the examples of the discussion on universals in Leibniz and Hobbes, the paper demonstrates the importance of the philosophical problem of universals to discussions on the possibility of global norms. In particular, the comparative study of Leibniz and Hobbes demonstrates that a world divided (...) in states mostly presupposes a denial of universals and thus an impossibility of truly global norms. Although in such a world cooperation and agreement between states is desirable and possible, the resulting agreement does not reach the threshold of normativity required under this view. On the other hand, truly global norms become possible if one accepts the existence of universals following Leibnizian tradition. However, in this case, the nature of normativity changes. Moreover, while states do not need to disappear, their role changes significantly and the main unit of consideration becomes the individual human being. Under this view, a wide variety of actors at the international arena are accorded equal importance. Based on lessons learned from this discussion, the article demonstrates how the questions raised by an explicit inclusion of the philosophical problem of universals into debates about global norms have continuing relevance today. It also suggests some possible avenues for future research. (shrink)

Over recent decades International Relations scholars have investigated norm dynamics processes at some length, with the norm entrepreneur concept having become a common reference point in the literature. The focus on norm entrepreneurs has, however, resulted in a bias towards investigating the agents and processes of successful normative change. This book challenges this inherent bias by explicitly focusing on those who resist normative change - norm antipreneurs. The utility of the norm antipreneur concept is explored through a series of case (...) studies encompassing a range of issue areas and contributed by a mix of well-known and emergent scholars of norm dynamics. In examining the complexity of norm resistance, particular attention is paid to the nature and intent of the actors involved in norm-contestation, the sites and processes of resistance, the strategies and tactics antipreneurs deploy to defend the values and interests they perceive to be threatened by the entrepreneurs, and whether it is the entrepreneurs or the antipreneurs who enjoy greater inherent advantages. This text will therefore be of interest to scholars and students of International Relations, International Law, Political Science, Sociology and History. ". (shrink)

If people have a right to rebel against domestic tyranny, wrongful foreign occupation, or colonial rule, then the normative principles commonly invoked to deal with civil conflicts present a problem. While rebels in some cases might justifiably try to secure human rights by resort to violence, the three normative pillars dealing with armed force provide at best only a partial reflection of the ethics of armed revolt. This article argues that the concept of “terrorism” and the ongoing attempt to define (...) it in international law, the laws of war and their application to armed conflict, and the Responsibility to Protect all obscure as much as clarify the problem. Given the prevalence of political oppression and the occurrence of civil conflicts originating in attempts to confront it, there is therefore a pressing need to establish a place for the rights of rebellion in the international normative architecture. (shrink)

Plato said that as long as wisdom and power, or philosophy and politics, are separated, “there can be no rest from troubles.”1 In The Republic, he sought to forge such a union. For over two millennia, from Plato through John Rawls, philosophers have put forward models for the just state.2 Despite these ongoing efforts, W. B. Gallie contends, “No political philosopher has ever dreamed of looking for the criteria of a good state viz-à-viz [sic] other states.”3 I will argue that (...) as long as wisdom and power are separated in international relations, we will continue to have problems. We need to forge a normative framework capable of addressing global issues. I further maintain that, in order to advance a global normative framework, achieving peace, or at least the “outlawry of war” championed by John Dewey, may well be the precondition for success in addressing the myriad global problems facing humanity.4 I agree with Ronald Glossop that among all the global issues we need to address, war is “humanity’s most pressing problem.”5 How can we adequately protect everyone’s human rights, secure economic well-being for all persons, preserve this planet’s rich biological diversity, and attend to other serious global concerns if we fail to end war? The structure of my argument is as follows: I will begin by reviewing the parochial and warist implications of the focus on national sovereignty within Enlightenment political philosophy from Thomas Hobbes through Immanuel Kant. Then, after indicating how Georg Wilhelm Friedrich Hegel and Karl Marx point beyond the modern state in a way that would allow for the global application of normative principles, I will note that the Hegelian and Marxian traditions have not made this normative prospect focal. Finally, in order to develop a global normative framework, I will connect the efforts within twentieth-century philosophy to develop arenas of applied ethics to recent efforts in political science to develop a model of a humane world community.. (shrink)

This book focuses on the normative questions raised by the postulation and declaration of a global ethic. Its scope covers the questions “why do we need a global ethic?”, “what kind of global ethic do we need and what sort of normative justification does it imply?” The book considers the imperative of global ethic to be plausible because it demands consistency in the application of the rule or standard of moral behavior.

Glocal environmental governance lags behind the science regarding the seriousness of the combined environmental and developmental challenges. Governance regimes have developed differently in different issue areas and are often inconsistent and contradictory; furthermore governance innovations in each area lead to new challenges. The combined effect of issue-based, plural, and fragmented governance raises key normative questions in environmental governance. Hence, this overview paper aims to address the following questions: How can the global community move towards a more normatively consistent (...) class='Hi'>global architecture for sustainable development? In order to address this question, I first examine the key normative issues and the nature of governance in the area of climate change, water and forests. In doing so I also look at the implications of each for food production, safety and security. The paper concludes that there are strong normative and architectural inconsistencies between the fragmented and plural issue-specific regimes; that such inconsistencies are inevitable in an ‘anarchic’ international order; that some degree of normative coherence can be strived at through the adoption of global constitutionalism and rule of law; and that the present discussion on global sustainable development goals is a first step towards creating a normatively consistent global architecture for sustainable development. (shrink)

The creation of increasingly complex artificial intelligence (AI) systems raises urgent questions about their ethical and social impact on society. Since this impact ultimately depends on political decisions about normative issues, political philosophers can make valuable contributions by addressing such questions. Currently, AI development and application are to a large extent regulated through non-binding ethics guidelines penned by transnational entities. Assuming that the global governance of AI should be at least minimally democratic and fair, this paper sets out three (...) desiderata that an account should satisfy when theorizing about what this means. We argue, first, that an analysis of democratic values, political entities and decision-making should be done in a holistic way; second, that fairness is not only about how AI systems treat individuals, but also about how the benefits and burdens of transformative AI are distributed; and finally, that justice requires that governance mechanisms are not limited to AI technology, but are incorporated into a range of basic institutions. Thus, rather than offering a substantive theory of democratic and fair AI governance, our contribution is metatheoretical: we propose a theoretical framework that sets up certain normative boundary conditions for a satisfactory account. (shrink)

Globalizations from Below uses a Constructivist International Relations approach that emphasizes the centrality of normative power to analyze and compare the four globalizations 'from below'. These are: (1) the counter-hegemonic globalization represented by the 'movement of movements' of alter-globalization transnational social activists, who try to put an end to the Neoliberal nature of the Western-centered globalization 'from above;' (2) the non-hegemonic globalization enacted by 'ant traders' that are part of the transnational informal economy; (3) the partially similar Chinese-centered globalization, whose (...) entrepreneurial migrants are strongly influenced and instrumentalized by the Chinese state; and (4) the first wave globalization 'from below' that paralleled (and outlived) the 1870-1914 globalization 'from above.' This book identifies their common features and uses them to define the concept of globalization 'from below' as a set of socio-economic or socio-political processes that involve large transnational flows of people, goods, and/or ideas characterized at least in part by informality. They are enacted by entrepreneurial or activistic individuals who either take advantage of the normative power of the hegemon at the origin of an international order and an associated globalization 'from above,' or - explicitly or implicitly - transgress, contest, and try to redefine dominant economic, legal, political, and socio-cultural norms, thus challenging the existing international order and globalization 'from above.' By constructing a unified theoretical framework, this book attempts to open a new field of interdisciplinary research that should take globalizations 'from below' out of their current scholarly marginality. This is one of the first scholarly works to collectively present more than one globalization 'from below,' and will be of great interest to students, scholars, and researchers of International Relations, International Political Economy, Development Studies, Economic History, Anthropology, Diaspora Studies, and Chinese Studies. (shrink)

Several insider accounts of the formation of the Sustainable Development Goals suggest that the process (the procedures used and the emergent organizational and governance system features) was as important as the resulting goal-set. The paper looks at both aspects, and relationships between them: the rising influence of Southern nations (seen in the roles played by Colombia, Brazil, some African countries and the G77); the partial transcendence of traditional inter-bloc negotiation, including through adoption of elements of deliberative decision-making; the major involvement (...) of civil society and business organizations, thanks especially to the IT revolution; the adoption of a goals-targets-indicators frame that has flexibility at national level and implicit reliance on intensive further civil society activism and monitoring. The paper considers these features and the implied prospects for the SDGs in relation to various perspectives on global governance, with special reference to norm-setting: Ruggie’s concepts of ‘global public domain’ and ‘polycentric global governance’, Risse and Sikkink’s ‘norms cascade’, Murphy’s posited required elements for progressive global innovation, and Raskin’s model of transition through responses to crises. It concludes with questions for further work, including regarding the possibly problematic absence of an explicit inspirational value-core. (shrink)

Theorists of global justice confront an apparent dilemma. If citizens in the developed world have duties of (socio-economic) justice to those elsewhere on the globe, then it is supposed that the duties must be very extensive indeed, requiring the same concern to be shown for everyone on earth. Those who deny that global obligations are as extensive as domestic obligations seem therefore to have to concede that any obligations beyond borders must be based on charity, rather than justice. (...) The assumption on which this dilemma is based is that 'justice is uniform'. In this paper I argue that such an assumption should be rejected in favour of the view that justice is relative to norms of cooperation. Consequently it is possible to develop a view of 'justice but not the same justice': the ‘layers of justice’ view. (shrink)

The paper takes the idea that political theory should formulate their normative principles in a close connection to social facts as a starting point to analyze J. Habermas’ proposal of a political constitution for the global society. The equilibrium between normative and factual aspects in his proposal appears evident through the restrictions that, in his model, the nature of social reality imposes to the formulation of political principles at the global level. This is particularly evident through the figure (...) of a multilevel system. The paper frames the analysis in a critical discussion of N. Luhmann’s concept of a global society and of the way some other approaches involve particular visions of what count as a global problem. (shrink)

Global poverty is a huge problem in today's world. This survey article seeks to be a first guide to those who are interested in, but relatively unfamiliar with, the main issues, positions and arguments in the contemporary philosophical discussion of global poverty. The article attempts to give an overview of four distinct and influential normative positions on global poverty. Moreover, it seeks to clarify, and put into perspective, some of the key concepts and issues that take center (...) stage in the philosophical discussion of global poverty. The four positions to be discussed are labeled the Maximalist Position, the Minimalist Position, Intermediate Position I and Intermediate Position II. After an account of these four distinct positions, we turn, in the conclusion, to a discussion of what role empirical sciences such as economics and political science should play in normative considerations about global poverty. (shrink)

This paper offers an analysis of how normative theories on global poverty make assumptions regarding the geography of global poverty and global power constellations. I follow some recent global developments relevant to these assumptions, and ask whether normative theorizing should react to these developments. I argue that while accounts of global justice are not explicitly committed to any particular empirical ideas, the global justice discourse reflects the specific socioeconomic and geopolitical context in which it (...) emerged, and that this context is currently giving way to a somewhat different reality. I suggest some preliminary starting points for a normative theory which would reflect the contemporary conditions more accurately. These starting points include shifting the focus of theorizing from relations between rich and poor countries to inequalities on various levels, and the notion of a complex institutional site of global justice. (shrink)

이 논문은 글로벌 공적 이성에 관한 최근의 논의와 쟁점들을 분석적으로 천착하고, 이 를 통해 글로벌 공적 이성의 한계를 비판적으로 성찰한 후, 국제 윤리 규범으로서 글로벌 공적 이성의 윤리적 함의를 밝히는 데 그 목적이 있다. 글로벌 공적 이성의 취지는 국경을 가로질러 사람들에게 영향을 미치는 국가 행위라든가 혹은 글로벌 차원의 정의의 원칙들 이 정당화되기 위해서는 그것들에 영향을 받는 합당한 혹은 가상적 상황의 당사자들에게 그러한 행위나 원칙들이 공적이고 접근 가능한 근거에 입각해서 정당화될 수 있어야 한다 는 것이다. 국제 사회가 칸트가 구상한 영원한 평화에 (...) 다가가기 위해서는 글로벌 공적 이 성이라는 공통의 국제 윤리 규범 혹은 기준이 확립되어야 한다. 만일 국제 사회가 글로벌 공적 이성의 규제를 받지 않는다면 각 국가는 자국의 이익이나 종교, 가치관 및 이념을 앞 세워 다른 국가들을 억압하려 들거나 혹은 우연히 힘의 균형을 이루고 있지만 언제 균형이 깨질지 모르는 상황에 머물게 될 것이다. 글로벌 공적 이성은 글로벌 차원의 정의를 안정 적으로 실현할 수 있는 최선의 방안이라 할 수 있다. 즉 글로벌 공적 이성은 글로벌 정의 와 평화로 가는 길이다. (shrink)

This book addresses conflicts involving how law relates normative orders. The assumption behind the book is that law no longer automatically claims supremacy, but that actors can pick and choose which code to follow.

This contribution explores correctives to several errors that Thomas Nagel seems to presuppose in his seminal defence of scepticism about global justice. I rely on lessons learned and conventions surviving in West African contemporary social and moral contexts, where people engage as a matter of course in divergent, historically antagonistic cultural and political traditions. On this view, global justice is a work in progress—not a fixed univocal formula but an on-going collaborative effort, a project in perpetual renovation and (...) inter-cultural reconsideration by successive generations which presupposes a diversity of values and ways of sanctifying human life. I consider ways in which an ethics of care, as suggested by Virginia Held, might have been anticipated by the time-honoured norms of governance and political culture surviving in complex African polities, cultures which have withstood the corrosion of external colonialism since early modernity. How might iconically African, universally fundamental moral notions of decency and fairness find their way back into the global marketplace of diplomatic discourse and economic policy design?To demonstrate the need to navigate towards some consensus within the diversity of indigenous concepts associated with justice and good governance in Africa, I discuss the fiasco displayed in a widely celebrated proposal for exercising globally principles of justice in the Western liberal political tradition applied to remedy Africans’ notorious resource curse. (shrink)

This paper contrasts conceptions of global distributive justice focused on natural resources with human rights–based approach. To emphasize the advantages of the latter, the paper analyzes three areas: (1) the methodology of normative theorizing about natural resources, (2) the category of natural resources, and (3) the view of the system of sovereignty over natural resources. Concerning the first, I argue that global justice conceptions misconstrue the claims made to natural resources and offer conceptions which are practically unfeasible. Concerning (...) the second, I show that contemporary philosophy of justice downplays the plurality of meanings resources have for collectives and argue that conflicts over natural resources can best be accounted for using human rights. Finally, the paper looks at sovereignty over natural resources and argues that rather than dismissing it as unjustifiable on moral grounds, it should be reformed in line with valid principles of international law, most importantly with human rights. (shrink)

This paper explores the relationship between normative international political theory and the politics of international law. It begins by arguing that a gap between the normative (in moral terms) and the moral (in legal and social terms) still exists in the literature before going on to examine an approach to closing this gap. This approach, it is argued, is common to a plurality of theoretical approaches including liberal cosmopolitanism, social constructivism and forms of particularism. In exploring ‘institutional moral reasoning’ or (...) ‘social moral epistemology’ the paper argues that respecting the institutional autonomy of the international legal order is a key component of the approach. In order to test the extent to which the various positions do respect the autonomy of the legal order the paper engages with an analysis of the extent to which human rights have become the key constitutive norm of global politics. (shrink)

ABSTRACT:This article examines the issue of gender equality within Islam in order to develop an ethical framework for businesses operating in Muslim majority countries. We pay attention to the role of women and seemingly inconsistent expectations of Islamic and Western societies with regard to appropriate gender roles. In particular, we contrast a mainstream Western liberal individualist view of freedom and equality—the capability approach, used here as an illustration of mainstream Western liberalism—with an egalitarian Islamic view on gender equality. While the (...) article identifies an opportunity for this particular approach to reform patriarchal interpretations and practices of Islam toward gender egalitarian interpretations and practices, it also contests the notions of adaptation and well-being inherent within the capability approach. We suggest that a dialectical approach to understanding the relationships among religion, culture, and business provides a better guide to responsible business action in Muslim Majority countries than does the capability approach. (shrink)

When we ask a decision maker to express her preferences, it is typically assumed that we are eliciting a pre-existing set of preferences. However, empirical research has suggested that our preferences are often constructed on the fly for the decision problem at hand. This paper explores the ramifications of this empirical research for our understanding of instrumental rationality. First, I argue that these results pose serious challenges for the traditional decision-theoretic view of instrumental rationality, which demands global coherence amongst (...) all of one's beliefs and desires. To address these challenges, I first develop a minimal notion of instrumental rationality that issues in localized, goal-relative demands of coherence. This minimal conception of instrumental rationality is then used to offer a more sophisticated account of the global aspects of instrumental rationality. The resulting view abandons all-or-nothing assessments of rationality and allows us to evaluate decision makers as being rational to varying degrees. My aim is to propose a theory that is both psychologically and normatively plausible. (shrink)

I outline a holistic normative approach to migration in which I identify the major considerations that should be taken into account in formulating just migration policies. I argue that migration is basically an issue of global justice and that the basic interests of all parties significantly affected by migration should be taken into account in an adequate normative approach to this issue. I also maintain that an open borders policy does not allow for the strategic use of labor migration (...) as a tool to address global inequalities and that it neglects legitimate concerns that liberal egalitarians should have for the most vulnerable individuals in developing countries. (shrink)

Whereas the concept of "socialist rule of law" punctuated political discourse in the late 1990s, the idea of a "socialist harmonious society" is today casting a strange light on Chinese legal reform. Is there a Confucian vision of China's marketing law and practice? To what extent have China's norms for marketing, mainly intellectual property and advertising law, been challenged by the new government policy toward a harmonious society? In the post World Trade Organization accession period, the theoretical framework of (...) the "socialist harmonious society" has turned law into a disciplinary principle given over to society's moral construction. If law is seen as an instrument for legitimizing power, it remains implicitly bound primarily to ensure the regime's durability. Although more and more ordinary citizens and foreign companies are seizing hold of normative tools being put at their disposal, this does not necessarily mean that Chinese law is implemented in a uniform and timely manner throughout China's territory. China still suffers from a lack of coherence and political will in the drafting of a legal reform that aims mainly at preserving the current fragile political balance. Contradictory forces are indeed at work in this legal construction that is torn between liberal leanings and socialist authoritarianism. Without a deep change in perspective, one can expect only relatively slow progress in protecting the intellectual property rights of the many Chinese and foreign goods and services that can be found on the Chinese market. (shrink)

Whereas the concept of "socialist rule of law" punctuated political discourse in the late 1990s, the idea of a "socialist harmonious society" is today casting a strange light on Chinese legal reform. Is there a Confucian vision of China's marketing law and practice? To what extent have China's norms for marketing, mainly intellectual property and advertising law, been challenged by the new government policy toward a harmonious society? In the post World Trade Organization accession period, the theoretical framework of (...) the "socialist harmonious society" has turned law into a disciplinary principle given over to society's moral construction. If law is seen as an instrument for legitimizing power, it remains implicitly bound primarily to ensure the regime's durability. Although more and more ordinary citizens and foreign companies are seizing hold of normative tools being put at their disposal, this does not necessarily mean that Chinese law is implemented in a uniform and timely manner throughout China's territory. China still suffers from a lack of coherence and political will in the drafting of a legal reform that aims mainly at preserving the current fragile political balance. Contradictory forces are indeed at work in this legal construction that is torn between liberal leanings and socialist authoritarianism. Without a deep change in perspective, one can expect only relatively slow progress in protecting the intellectual property rights of the many Chinese and foreign goods and services that can be found on the Chinese market. (shrink)

The world we inhabit is surrounded by ‘coded objects’ from credit cards to airplanes to telephones. Sadly the governance mechanisms of many of these technologies are only poorly understood, leading to the common premise that such technologies are ‘neutral’, thereby obscuring normative and power-related consequences of their design. In order to unpack supposedly neutral technologies, the following paper will try and foreground two of key questions around the technologies used on the global Internet: 1) how are content regulatory regimes (...) governed and 2) how are the algorithms embedded in software governed? The following paper will explore these two aspects in turn, before drawing conclusions on understanding the normative frameworks embedded in technological systems.Article first published online: 22 MARCH 2016. (shrink)

It is certainly possible to overestimate the practical importance of arguments for the normative legitimacy of global capitalism. But normative arguments continue to circulate in the social world, and it would be foolish to think that they do so without significant social effects. As long as ideological defenses of capitalism continue to be produced, there will be a need for ideology critiques.

This study delves into the significant ethical criteria in the context of global standards. It addresses the moral wrongdoings and adverse side effects associated with global value chains as discussed in the business ethics literature. The methodology involves theoretical application and synthesis. The study employs ethical principles from deontology, consequentialism, and political cosmopolitanism to establish normative criteria such as “injustice and harm to others” and “bad outcomes.” It further investigates how these criteria should influence consumers' decisions, actions, and (...) responsibilities. These criteria are then used to examine the moral wrongdoings and negative effects mentioned in global standards. The study explores how global standards implicitly express consumers' roles in governing global value chains. It scrutinizes consumers' actions and decisions by applying ethical frameworks to global standards. The study outlines consumers' individual and political responsibilities in achieving the goals of global standards. The research findings have implications for governments, consumers, and organizations in practicing shared responsibility. The aim of this research is to provide normative guidance for responsible actions. (shrink)

Approaching mental health on a global scale with particular reference to low- and mid-income countries raises issues concerning the disregard of the local context and values and the imposition of values characteristic of the Global North. Seeking a philosophical viewpoint to surmount these problems, the present paper argues for a value-laden framework for psychiatry with the specific incorporation of value pluralism, particularly in relation to the Global South context, while also emphasizing personal values such as the choice (...) of treatment. In sketching out this framework, the paper aims to overcome the clash between universalism and relativism about psychiatric categories by focusing on how overlaps between cultures can contribute to ontology-building. A case study analyzing ethnopsychiatric research in the context of South India will illustrate the proposed view, while also pointing out avenues for further research on the causal efficacy of local shared beliefs about mental disorder. If approaches across different traditions and theoretical frames are shown to work in treating similar ailments, causal connections appear to cut across the different ontologies. Ethnopsychiatry would play a central role in such research, namely in disclosing the variables and mechanisms at work within the local approaches. (shrink)

Although people establish norms that enable them to live together, some of these have to be coupled with a system of enforcement. This conforms to broad social contract theory and can also be applied to the international sphere. The international community is also based on a system of norms. However, unlike the domestic context, there is no overreaching authority to direct states on what they should do. Rather it is left to states themselves to police this framework. However, (...) this has resulted in one of the conditions envisaged by social contract theorists, namely a stasis between the command order and the state of nature. This may explain, for instance, the indifference to some modern human rights violations. Hence the current system of International law, with its insistence on the Westphalian principle of equality of states has caused a substantial fracture in the enforcement of international law, particularly when it comes to serious human rights breaches, and caused something akin to the state of nature envisaged by social contract theorists. While it may be practically impossible to provide a command system in the international sphere similar to the one in the domestic life, there is some hope that a revised deontological ethic founded on global integration may provide one impetus for change. (shrink)

Normative theorists of migration are beginning to shift their focus away from an earlier obsession with whether the ‘liberal' or ‘legitimate’ state should have a right to exclude, and toward evaluation of how states engage in immigration control. However, with some notable exceptions – such as work of Rebecca Buxton, David Owen, Serena Parekh, and Alex Sager – this work tends not to focus on the global coordination of such control, and is still largely concerned with issues of membership. (...) In this paper I aim to show the value of shifting normative attention to the fundamentally interdependent nature of state control of migration, and the management of all forms of movement – not just settlement. This global management is greatly facilitated by the rapid digitisation of border controls. As such, I outline three aspects of the way digital border controls work – profiling, biometric identification, and the data sharing practices upon which they rest – and highlight ethical challenges of accountability, consent and the reach of the state, and entrenching global inequalities in access to movement. Ultimately, I hope to show that the globally interconnected nature of migration management is a combination of practices that normative theorists of migration should turn their attention to. (shrink)

Abstract. It is commonplace that economic globalization poses new challenges to legal theory. But instead of responding to these challenges, legal scholars often get caught up in heated yet purely abstract discussions of positivist and legal pluralist conceptions of the law. Meanwhile, economics-based theories such as "Law and Social Norms" have much less difficulty in analysing the newly arising forms of private and hybrid "governance without government" from a functional perspective. While legal theory has much to learn from these (...) approaches, we argue that they fail in one crucial point: They cannot uphold the analytical distinction between law and non-law. The reasons for this shortcoming are theory-immanent in that the economic theories' focus on efficiency and their actor-based perspective are necessarily blind to "law's own rationality." We therefore propose to further develop those functional approaches to the study of global governance by complementing them with elements from Niklas Luhmann's systems theory of law. This will provide us with a conceptual framework for analyzing the workings of global governance regimes without ignoring their potential for "legalisation" and "constitutionalisation." As we will show in three concrete examples (Corporate Social Responsibility, lex mercatoria , and internet regulation) we can thus describe the evolution of new forms of legal regulation beyond the nation-state. This will also allow us to draw some preliminary conclusions on the role of law in the context of globalization and, at the same time, show the direction for further empirical research. (shrink)

It is commonplace that economic globalization poses new challenges to legal theory. But instead of responding to these challenges, legal scholars often get caught up in heated yet purely abstract discussions of positivist and legal pluralist conceptions of the law. Meanwhile, economics-based theories such as “Law and Social Norms” have much less difficulty in analysing the newly arising forms of private and hybrid “governance without government” from a functional perspective. While legal theory has much to learn from these approaches, (...) we argue that they fail in one crucial point: They cannot uphold the analytical distinction between law and non-law. The reasons for this shortcoming are theory-immanent in that the economic theories' focus on efficiency and their actor-based perspective are necessarily blind to “law's own rationality.” We therefore propose to further develop those functional approaches to the study of global governance by complementing them with elements from Niklas Luhmann's systems theory of law. This will provide us with a conceptual framework for analyzing the workings of global governance regimes without ignoring their potential for “legalisation” and “constitutionalisation.” As we will show in three concrete examples (Corporate Social Responsibility, lex mercatoria, and internet regulation) we can thus describe the evolution of new forms of legal regulation beyond the nation-state. This will also allow us to draw some preliminary conclusions on the role of law in the context of globalization and, at the same time, show the direction for further empirical research. (shrink)

The article reflects on the possibility of conceptualising the complex problem of the normativity of international legal rules, including in particular the phenomenon of “relative normativity.” The author utilises the critical potential of Ronald Dworkin's proposal for a new philosophy of international law to reflect on the classical accounts explaining normativity of international law. By building on Dworkin's argument, the author argues for a constitutional account of international law. The far-reaching constitutional proposals may provide a more complex and coherent set (...) of possible rationalisations of international legal rules. International law is in great need of a comprehensive theory that could better explain its normative character as well as its sources, and it is argued that international constitutionalism has the potential to serve this purpose. (shrink)

A legal system consists of a complex body of practices—primary and secondary—, particularly practices of reasoning and justification. The intellectual, theorized aspect of legal order is embodied in legal doctrine: the corpus of norm-sentences, norms and rules, principles, doctrines and concepts used as basis for legal reasoning and justification. It includes elaborate conceptual structures of principles and doctrines, explicit and sophisticated forms of reflection and criticism. It is only when we have understood the nature of legal doctrine that we (...) can comprehend the workings of courts, lawyers and even legislatures. Concerning the need for a new conception of legal theory one question arises, above all, especially when external and internal observation as well as the critical reflection of the premises and presuppositions of all dealings with the law permit a degree of distance, the question, namely, whether it is not an increasing application of scientific methods that is needed, in the sense that the development of a legal theory from the beginning involves the integration of a norm-descriptive point of view and intellectual stand-point with the norm-prescriptive theory of law, by way of complementing each other, as it were (multi-level-approach to law). This, at least, appears to be the only way of clarifying also the relationship between le­gal theory and philosophy and the theory and sociology of law. The inevitable consequences of the development of a theory of norms and action also have to be drawn from this. (shrink)