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The archetypal statute, with its roots in the 19th century, remains the standard form of legislation, even though many parliamentary outputs today cannot be reconciled with its formal or functional constraints. The author argues that the plurality of audiences for legislation today makes the universalizing aspirations of the classical statute problematic. An entirely new form of statute is needed.
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... Contra centralism, I have found in my empirical work, neither states nor any of the other actors in global collective life stand in a hierarchical relation to each other: social order is possible, even if it is not a single unified social order. 15 Contra legal positivism, therefore, it is never easy to know what the law is a priori in a given context, but the fact of a written treaty is not determinative; contra monism, no international organization or state has a monopoly of law in its domain. It is not helpful, therefore, to define wto law in terms of its texts, and its evolution in terms of disputes, for that is to define the thing by breaches, not by adherence to its normative order. ...
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This paper relates interactional legal theory and legal pluralism to the study of the WTO
... That is the place where everyone posts the relevant textual evidence of our mutual commitments for all to see, from the school timetable to the municipal garbage schedule. Understanding the injunction of the fridge door differs from reliance on the statute book, yet the fridge door may be a better metaphor for how law actually shapes everyday life (Macdonald, 2001). Explicit WTO texts have a place, and their formality can be useful as an indication of what officials thought important, but other texts also compete for influence. ...
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Abstract When officials disagree about trade policy, some say ‘see you in Geneva!’ meaning ‘see you in court!’ In offering a pluralist alternative to this centralism of analysts and practitioners, I represent the World Trade Organization (WTO) not as a coercive court used for enforcement,but as a site for the elaboration of a system of ‘law’ that arises from and provides a framework for self-directed human,interaction. I contrast this legal representation with ‘legalization’ to show the contribution it makes to constructivist international theory. An empirical probe in the contentious domain,of the WTO Agreement on Sanitary and Phyto-sanitary Measures(SPS) asks about the relative importance of the few formal SPS disputes compared,with other ways that WTO law affects global food safety. A discussion of how the trading system responded to ‘mad cow disease’ provides empirical confirmation of pluralist insights. Far from being only in Geneva, trade law is everywhere. When officials from different countries disagree about appropriate trade policy, some say ‘see you in Geneva!’ in the tone of voice people use when ending an argument by saying ‘see you in court!’ The norm of laissez-faire, it seems, has been replaced by ‘laissez litiger’ (Ostry, 1999, 174). , This legalistic reduction of the World Trade Organization (WTO) to its dispute settlement system is if not absurd at least misguided. Economists who hold this view see the WTO want it to enforce free trade, jurists want it to enforce a court-based international rule of law, and civil society worries that the WTO will actually succeed in meeting both objectives, with no regard for local democracy. Even some political scientists see the apparent ‘legalization’ of the WTO as its most interesting characteristic. I argue that the theoretical models of internationalrelations
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Transnational legal communication seeks to identify transnational legal regimes and attempts to establish channels and technics for comprehensible communication of the legal information to specified groups of recipients. It also strives to conclude about possible inconsistencies in law. The approach is based on the cooperation of scientists within the area of law and applied linguistics and the coordination of their efforts, in order to conduct research from various perspectives, share conclusions and develop more complete approaches as well as achieve and mutually use more multilateral research results. It strives to reconcile legal research and linguistics research despite of their very different paradigms. The paper aims to explain the nature of legal communication and to establish its general research questions and objectives. The study is going to find an answer to the question what methods are to be used to communicate law comprehensively to its recipients and to draw conclusions on the consistency of legal regimes to be communicated. It accentuates that the solidarity necessary to achieve the objective of comprehensible and consistent law goes beyond the particular interests of individual sciences and is the foundation of the existence of the transnational legal communication community, non-depending on the place of living and the scope of practical knowledge.
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Contemporary shifts in legal pluralism theory (from weak, intra-state pluralism to strong, extra-state pluralism and from socio-scientific to critical legal pluralism) have raised important new questions about law as a normative phenomenon. This article argues for the significance of implicit and inferential legal norms. It begins by considering a movement of thought—evangelicalism—that subordinates the implicit and informal to the explicit and authorized. The essay then outlines the principal features of a non-chirographic legal pluralism and explores how regimes of written rules are consistently made over by those whose conduct they are presumptively meant to govern.
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The theme of this symposium, Law Making in a Global World, can be iterated in two ways, depending on how one understands the term "law making." We might imagine how "globalization" affects the manner in which domestic law is conceived, instantiated, brought into force, interpreted, and applied. Or we might imagine how "global law" as transnational law is itself conceived, instantiated, brought into force, interpreted, and applied. The very possibility of these two readings, which signals the internal and external dimensions of legal change, evokes the central ideas I seek to develop in the two main Parts of this article.
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