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)

Contemporary ‘crisis studies’ seek to advance democracy by emphasizing the threats that technocracy and populism pose to a specific form of it, liberal-democracy. Crisis studies argue that, since the 1970s, technocratic policymaking has deepened economic inequality. This has fostered citizenly anger, which populists exploit. Four well-known iterations of this argument are evaluated using a political realist lens. Political realism emphasizes the historical context of politics, actors’ possible motives, and a normative orientation derived from the political order itself, rather than an (...) external ethico-moral ideal. The realist lens encourages comparison of crisis studies with historical political theory, which situates liberal-democracy within the long-term development of oligarchic systems of authority, and political history, which portrays technocracy as a product of the well-funded reaction to assertions of the democratic impulse that began in the 1970s. Populism is in this view not so much a perversion of liberal-democracy as it is a perhaps unintended consequence of anti-democratic reaction. The crisis studies make this error because based on a moral defence of the justice of the liberal-democratic order. Revealing the democratically unhelpful moralism at the core of crisis studies demonstrates the usefulness of political realism as a form of applied political theory, and not simply theory about theory. (shrink)

Are all norms cognized in the same way? I present experimental evidence suggesting that they are not. I propose a distinction between two main classes of violations—the victimful and the victimless—and show that while people tend to rate acts belonging to either category as impermissible, the justifications for their judgments refer to salient features of the act only in the former case. I further show that Feinberg's distinction between harmful and offensive acts is useful in discriminating between different types of (...) victimful violations. (shrink)