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Theorizing Transnational Law – Observations on a Birthday
Abstract
There are many ways to theorize transnational law. As always, there is a mainstream, and there are “sidestreams.” However, it may be more interesting to consider from which direction such theories develop. Here, in appreciation of what the German Law Journal did to transnational legal conversations, I suggest to consider three directions in transnational legal studies: (1) theorizing from above; (2) theorizing from below; and (3) theorizing from inside. As you will see, much of the theories are in the German Law Journal (GLJ).
... Transnational law in the contemporary age is widely known to have been first proposed by the US international lawyer, Philip Jessup, to include all law regulating cross-border actions or events (Vagts et al. 2014). The main directions in theorizing transnational law have been summarized as follows: the mainstream direction comprises a network of treaty bodies, governments, and international lobbying; the second direction adopts a sociolegal and critical approach that understands law as a phenomenon in transnational settings; the third direction benefits from comparative legal studies (Baer 2011). ...
Despite the increasingly diversified discourses in international commercial arbitration, this device of socio-legal regulation remains a relatively under-theorized subject. In particular, far too little attention has been paid to analyzing international commercial arbitration through critical approaches such as Third World Approaches to International Law (TWAIL). TWAIL is broadly understood as a methodological reorientation in international law by highlighting the historical links between the foundations of this field of law and the history of capitalism and imperialism as well as the colonial and Eurocentric legacies in the structure and operation of the current international legal regime. With this in mind, two fronts in international commercial arbitration invite a reexamination through a TWAIL perspective and by drawing on the concept of hegemony. One front is the transnational account of arbitration, and the other one is the epistemic community of arbitration. By examining these two notions through a narrative of hegemony of Western legal traditions, we posit that any effective attempt at redefining or reforming arbitral governance structure towards sustaining diversity requires a deeper understanding of historical and current world power structures and creating a vision for the prospect of dehegemonization.
Cosmopolitan constitutionalism contends that supranational governance can achieve a democratic character. It assumes that an essential core of the concept of democracy can be disembedded from the notion and institutions of the constitutional nation state and re-planted within transnational governance systems, in the EU and beyond, even while these fail to provide for representation and accountability along traditional lines. It further asserts that social ordering deriving from transnational governance that is democratic will be legitimate.
For some time, there has been something paradoxical about Martti Koskenniemi's From Apology to Utopia (hereinafter FATU). FATU might very well have been the single most influential book of the last 15 years in the field of international legal theory. Virtually all of my colleagues have, at one point or another, engaged with it and used it to sustain their arguments in diverse areas of the law (including, amusingly enough, even in commercial arbitration). Yet, as is well known to most law library users, FATU has long been out of print, making it extremely difficult to find a copy, even more so when, as is periodically the case at my home university, the available copy goes missing. FATU, in other words, seemed to be everywhere, but nowhere to be found. The prophet had believers. His tables of the Law, however, seemed to have disappeared. The splendid republication of FATU comes as great news to all of us who have struggled to access, let alone to possess, this seminal book.
Law, the State, and Evolutionary Theory: Introduction - Volume 9 Issue 4 - Gralf-Peter Calliess, Peer Zumbansen
On 23 rd June 2007, after three years of uncertainty, European Union leaders agreed on relaunching the old idea of a Magna Charta for Europe (now called “the Reform Treaty”), a normative structure based on the old ideas of deference to national identities, sovereignty and equality. To many authors, the first time that juridical equality between states was solemnly stated was in the aftermath of the Thirty Years’ War (1618-1648), in the Westphalia Peace Treaties, representing the beginning of modern international society established in a system of states, and at the same time, “the plain affirmation of the statement of absolute independence of the different state orders.” In fact, under an Eurocentric conception of political ideas (which envisages England as an isolated island and Iberia as Maghreb, north of Africa), the modern state emerges with the Westphalia Peace Treaties. However, under a broader conception, the modern nation-state (under the form of absolute monarchy) emerged long before the Westphalia Peace Treaties, in Iberia and England. Nevertheless, it is in these documents which lies the “birth certificate” of the modern sovereignty nation-state, base of the present democratic state, and “founding moment” of the international political system. Far beyond this merely formal aspect, the importance of the Westphalia Peace Treaties is so great to the understanding of the notion of state that Roland Mousnier, in describing the 16th and 17th centuries in the General History of the Civilizations , organized by Maurice Crouzet, asserts that those treaties symbolized a real “constitution of the new Europe,” a multifarious Europe, plural and very distant from the religious unit of Christianity, from the political unit of the Holy Roman Empire, and from the economical unit of the feudal system. Constitutions are especially important because they establish the rules for the political authority, they determine who governs and how they govern: “[I]n codifying and legitimating the principle of sovereign statehood, the Westphalian constitution gave birth to the modern states-system.”
From its first line, Günter Frankenberg's article Critical Comparisons , published twenty years ago, leaves no doubt as to its radical claim and aspiration. Nothing short of attempting to “re-think” comparative law, the article sets out to attack many of the dearly held beliefs in the scholarship and practice of comparative law. The beliefs, the history, the believers, their work and struggles – they are all there. Frankenberg plows through them in order to lay bare what he conceives of as being an incorrectly defended myth of scholarly objectivity among many of the field's pioneers and contemporary protagonists. Not being alone in his struggle of fiercely assailing the citadels of a nearly century-old comparativist scholarly venture, his crucial contribution to the field cannot now be denied. Whether we consider its open, frank, almost casual style, or its wide reaching theoretical reach, Critical Comparisons remains one of the most eminent articulations of the crisis of comparative law in its first century. At the time of the article's 20th birthday, it is time to recollect, reassess and reconsider its main arguments and to play them back to the author and his readers. After a brief reconstruction of the article's main contentions (Part B), this brief homage will contextualize the article within a larger attempt among comparativists and legal theorists to work towards a transnational legal science (Part C).
From the preceding essays, but also from the general discussion around From Apology , two themes emerge as a constant source of puzzlement, not least to myself. How does the argument in that book affect – if at all – the way we do international law? And what does the claim to be “critical” really mean? These are, I suppose, aspects of one larger set of problems that permeate the whole of that work. “Oh yes, it does describe the argumentative patterns pretty well. But it does not really change anything, does it?” One might approach this sort of query in different ways. It might be thought of as an expression of the classical theme about the relations of theory and practice in the social sciences. How do academic works influence the social world to which they are addressed? Or one might be more interested in the specific relationship between (academic) doctrines and legal practice – the “outside” and the “inside” of the legal profession.
The term principle is ubiquitous in the thematic studies and the cross-cutting studies of this research project on the exercise of public authority by international institutions. Apparently its legal analysis and normative framing is difficult to achieve without principles. This is no specificity of this undertaking: Legal research on the public authority of international institutions regularly deals with the issue of principles. General principles for all international institutions are of specific interest as they might tie the various institutions into one legal universe. Yet, precisely their variety, even heterogeneity raises the question if such principles can be anything but “stars which give little light because they are so high.” This quotation from Francis Bacon's “On the Advancement of Learning” precedes Edward Carr's classical study on the problems of a sweeping, principled and idealistic approach to international phenomena.
The issue of how democratic and constitutional nation states shall square international cooperation with their commitments to constitutionalism, democratic accountability and fundamental rights is a persistent problem that becomes ever more pressing with increasing international integration. The German Federal Constitutional Court (FCC) is well-known for having developed a detailed case law on the extent and forms of delegation of powers from the German state to inter-and supranational organizations.
In this exclusive interview with Federal Constitutional Court Justice, Professor Udo Di Fabio, GLJ looks forward to some of the challenges the Court will face in next fifty years, especially the meaning for the Court of domestic (privatization) and international (europeanization) changes to the role of the nation state. The interview begins with an exploration of the nature and role of the Federal Constitutional Court in light of radical changes in the law as well as the social sciences. Justice Di Fabio also addresses the Court's narrow role as an interpreter of legal texts, noting that the Court performs this function while also exercising broader, quasi-legislative authority within a pluralistic and post-traditional society. The interview then turns to questions related to the role of the state and the traditional public structuring of societal authority as set against the general turn to societal self-structuring, especially in the context of the debate over the nature of the European Union's authority.
The concept of citizenship gained the attention of several political thinkers during the 1990s. This is evident from the responses of various European law experts regarding situations where legal recognition was used to define European citizenship as administered by the Maastricht Treaty of the European Union. Article 8 of the Treaty states how people who are of the nationality of any of the EU's Member States should be deemed citizens of the Union. Also, it states that these citizens are entitled to the rights described by the Treaty, and they are also required to fulfill the duties that are imposed by the Treaty. Because this is a transnational phenomenon, European citizenship cannot be treated merely as having legal status of belonging to a particular state. As the European Charter of Fundamental Rights was proclaimed a few years after, focus was given to Europe's social dimension. This chapter explains the notion of citizen as discussed within the Charter, specifically on how gender is constructed and how gendered a particular person is. © the various contributors, except where indicated, 2004. All rights reserved.
This book argues that the colonial confrontation was central to the formation of international law and, in particular, its founding concept, sovereignty. Traditional histories of the discipline present colonialism and non-European peoples as peripheral concerns. By contrast, Anghie argues that international law has always been animated by the ‘civilizing mission’ - the project of governing non-European peoples, and that the economic exploitation and cultural subordination that resulted were constitutively significant for the discipline. In developing these arguments, the book examines different phases of the colonial encounter, ranging from the sixteenth century to the League of Nations period and the current ‘war on terror’. Anghie provides a new approach to the history of international law, illuminating the enduring imperial character of the discipline and its continuing importance for peoples of the Third World. This book will be of interest to students of international law and relations, history, post-colonial studies and development studies.
This paper develops a comprehensive framework for the legal analysis of global governance phenomena. Global governance is considered as an important analytical perspective which points out new trends in international relations. However, from a normative standpoint it is unsatisfactory, as it does not allow to single out those activities of international institutions which compromise individual self-determination. To this end, the paper proposes the concept of "international public authority", which allows identifying all hard and soft mechanisms that constitute unilateral exercises of power. For such unilateral, public power to be legitimate, it needs to correspond to yet to be defined standards of public law. After discussing current legal approaches like Global Administrative Law and constitutionalism, which all aim at the development of such standards, the paper proposes a comprehensive public law approach, which finds its basis in international institutional law. This approach would avoid the uncertainties surrounding the legal bases of principles of Global Administrative Law and the risk of constitutionalism to fail on its normative ambitions. The paper sets out the framework of a comprehensive research project on the exercise of international public authority by international institutions.
Few books have attained the influence and impact of Martti Koskenniemi's From Apology to Utopia (FATU); fewer still could have made anything like such an impact with a publication run and consequent distribution as small as FATU's. Thus, as has undoubtedly been said before, and will undoubtedly be repeated subsequently, Cambridge University Press must be congratulated on their decision to publish a new edition, with a far larger print run, and wider distribution.
… fulfilment of my first ambition – to describe international law in a way that would resonate with practitioner experience – necessitated that I resist the pull of either excessive “formalism” or excessive policy-oriented “realism”. In the course of writing, however, I began to realise that this way of stating the problem also contained the seeds of its resolution … I needed to think about my own experience as far from idiosyncratic and to examine the contrast between “formalism” and “realism” as an incident of the standard experience of any international lawyer in the normal contexts of academy or practice.
A number of recent voices in contemporary political and legal philosophy have suggested that something is wrong with international humanitarian relief and human rights advocacy. Such a critique no longer seems to be motivated by ideologies of Social Darwinism or by beliefs in the unconditional primacy of a raison d'État over the needs and rights of individuals. Rather, it derives from a perspective that sees humanitarian activism as an ill-conceived, often merely compensatory gesture.
Does Derrida's death justify a special issue of this Journal , preceded immediately by a special edition on human rights? Can death justify anything at all? And what does this mean for the authors of this volume; are their texts doomed to remain unjustified, if no authority steps in to legitimate our endeavour to gather texts by friends in the name of Derrida?
I have read in the newspapers that foreign citizens, when travelling to the United States on a Visa, will undergo a data registration and have their fingerprints taken. Not willing to submit myself to this treatment, I decided therefore to cancel my guest lectures at New York University for March 2004. At this time, I would like to provide reasons for my decision – a decision that I find necessary and unavoidable in spite of my sympathies for American students and professors with whom I have for many years felt connected both in friendship and professional life. This is a decision that I would hope to be adopted also by other European Intellectuals and Teachers.
Both internationalists and national constitutionalists are currently reflecting on changes in the basic structures of public law. From the national perspective, the process of globalization puts into question the hitherto generally accepted position of constitutional law as being at the top of the pyramid of norms. In international law, the development of subject-oriented régimes has led to a proliferation of international courts and other bodies entrusted with the resolution of disputes. This tendency entails a danger of fragmentation which contrasts with the current tendency to discover processes of constitutionalization in international law. Starting from the functions of the constitution in national law, the following paper develops in the first part elements of constitutionalization in international law in general (I.). In the second part, the identified problems are elaborated upon in more detail with respect to the law of the World Trade Organization (II.).
On a global level, we are witnessing a revitalisation of religion, which also includes a re-politisation of religion, particularly within contemporary Islam. Religion has become, once again, a political topos . The secularised western world is thus facing a new challenge, for which it appears to be inadequately prepared. The idea of freedom of religion, guaranteed as a fundamental right, obliges western democratic states to respect the religious activities of their citizens and to secure their free development. Therefore, the state is principally neither allowed to favour nor to discriminate against certain professions of faith. This concept of equidistance is known as the principle of state neutrality: it commits the state to generally withdraw from religious issues, especially the political act of defining what can legitimately be classified as religion and religious behaviour. The leeway given to the self-conception of religious groups by the German Federal Constitutional Court and its wide understanding of what kind of behaviour has a direct relationship to faith and therefore deserves protection by the freedom of religion, is to be understood against the context of this general principle. However, with regard to the new challenges mentioned above, the neutrality principle increasingly serves yet another purpose. The courts use it as an exit-option in order to avoid addressing problems which appear to be too complex for the law relegating religion to sociological study. In this context, state neutrality merely functions as a chiffre for indifference. But this strategy of avoidance, though understandable in the light of the complexity of religious pluralism, undermines the law's function of conflict resolution. Furthermore, it neither corresponds to the historical development nor to the functional aspects of the idea of religious freedom.
The basic principle for the Bundesverfassungsgericht (German Federal Constitutional Court) has been that the international delegation of limited and revocable powers generally has been accepted as long as the organizations to which powers are delegated also provide adequate protection of individual rights. The principle that delegation is to be functional was another way to create safeguards concerning the extent to which powers were delegated. That principle has been applied consistently with regard to delegations to the European Community (EC), although the definition of powers that are limited and revocable has been given an everwider interpretation over time. When considering how the Constitutional Court has exercised constitutional control over delegations to international organizations, it also is important to note that, in relation to the EC and the European Union (EU), it has controlled a process of constitutionalization at the level of European integration. This chapter compares that development with how the Constitutional Court has conceptualized the national constitutional control of developments in the second and third pillars of the EU and European integration more generally. In that context, it also provides a short background outlining how the Constitutional Court has treated problems of European integration. It argues that the development of supranational integration sheds new light on some of the central aspects of theories of judicial control of political decision-making.
available at ; Ulrich Raulff, Interview with Giorgio Agamben-Life, A Work of Art Without an Author: The State of Exception, the Administration of Disorder and Private Life
- Heins Volker
Reclaiming Baggage in Fast Travelling Theories
- Gudrun-Axeli Knapp
- Race
- Class
- Gender
Gudrun-Axeli Knapp, Race, Class, Gender. Reclaiming Baggage in Fast Travelling Theories, EUROPEAN JOURNAL OF
WOMEN'S STUDIES 249-265 (2005).
See also David Kennedy, The Last Treatise: Project and Person (Reflections on Martti Koskenniemi's From Apology to Utopia)
Florian Hoffmann, An Epilogue on an Epilogue, 7 GERM. L. J. 1089 (2006), available at <
http://www.germanlawjournal.com/pdf/Vol07No12/PDF_Vol_07_No_12_1089-1094_SI_Rajagopal.pdf>. See also
David Kennedy, The Last Treatise: Project and Person (Reflections on Martti Koskenniemi's From Apology to
Utopia),
GERM. L. J. 1089 (2006) available at < http://www.germanlawjournal.com /pdf/Vol07No12/
PDF_Vol_07_No_12_981-992_SI_Kennedy.pdf>.
The German Proposal of an “Anti-Discrimination” Law: Anti-constitutional and Anti-common sense. A Response to Nicola Vennemann, 3 Germ
- Viktor Winkler
Developing the Publicness of Public International Law: Towards a Legal Framework for Global Governance Activities
- Philipp Armin Von Bogdandy
- Matthias Dann
- Goldmann
s From Apology to Utopia: A Reflection, 7 GERM
- Martti Balakrishnan Rajagopal
- Koskenniemi
Balakrishnan Rajagopal, Martti Koskenniemi's From Apology to Utopia: A Reflection, 7 GERM. L. J. 1089 (2006),
available
at
<
http://www.germanlawjournal.com/
pdf/
Vol07No12/PDF_Vol_07_No_12_1089-1094_SI_Rajagopal.pdf>;
- Claire O' Brien
- Reframing Deliberative Cosmopolitanism
Claire O'Brien, Reframing Deliberative Cosmopolitanism: Perspectives on Transnationalisation and Post-national
Democracy from Labor Law, Vol. 9 GERM. L. J. No. 8 (2008), available at <http://www.germanlawjournal.com/
pdf/Vol09No08 /PDF_ Vol_09_No_08_1007-1042_Articles_O'Brien.pdf>.
- Susanne Baer
Susanne Baer, Verfassungsvergleichung und reflexive Methode: Interkulturelle und intersubjektive Kompetenz,
ZAÖRV (2004), available at <http://www.hjil.de/64_2004/64_2004_3_a_735_758.pdf>,.
Philosopher of Law, 6 GERM
- Cornelia Schwendimann
- Derrida Vismann
Schwendimann.pdf>; Cornelia Vismann, Derrida, Philosopher of Law, 6 GERM. L. J. 5 (2005), available at
<http://www.germanlawjournal.com/pdf/Vol06No01/PDF_Vol_06_No_01_005-13_SI_Vismann.pdf>;
Interview with Giorgio Agamben -Life, A Work of Art Without an Author: The State of Exception, the Administration of Disorder and Private Life
- Ulrich Raulff
Ulrich
Raulff, Interview with Giorgio Agamben -Life, A Work of Art Without an Author: The State of Exception, the
Administration of Disorder and Private Life, 5, GERM. L. J. 605 (2004), available at
<http://www.germanlawjournal.com/pdf/Vol05No05/PDF_Vol_05_No_05_609-614_special_
issue_Raulff_Interview.pdf> ;
clear answer: Read, at least, 22 the German Law Journal, and submit contrib Curiosity and open-mindedness-the Journal publishes way beyond the mainstream, confronts you with critical approaches, with interdisciplinary thinking
- Giorgio Agamben
Giorgio Agamben, Bodies Without Words: Against the Bio-political Tatoo, 5, GERM.
L. J. 167 (2004), available at < http://www.germanlawjournal.com/pdf/Vol05No02/PDF_Vol_05_No_02_167-clear answer: Read, at least, 22 the German Law Journal, and submit
contrib
Curiosity and open-mindedness-the Journal publishes way beyond the mainstream,
confronts you with critical approaches, with interdisciplinary thinking, with deconstruction,
with (some, there could be more 23 ) feminist, as well as anti-feminist, 24 thinking, and with
some postcolonial ideas.