This article examines two modalities of law, depicted spatially as the vertical and the horizontal. The intellectual background for seeing law in vertical and horizontal dimensions is to be found in much socio-legal scholarship. These approaches have challenged the modernist, legal positivist and essentially vertical view of law as a system of imperatives emanating from a hierarchically superior source such as a sovereign. In keeping with the socio-legal critical tradition, but approaching it from the perspective of legal philosophy, my aim (...) is to address three matters. First, why is vertical law problematic for feminists? Second, what are the theoretical characteristics of law in its horizontal register? Third, how is an appreciation of this ‘flat’ law useful for feminist legal theory and practice? In particular, I consider the ways in which feminist legal theory operating in the horizontal dimension can transgress, without transcending, the vertically determined perimeters of the nation state. (shrink)

This article addresses the modern concept of sovereignty as a multivocal and conflictual semantic field, arguing for the necessity to trace its genealogy based on the structural tensions that haunt its logical framework – as well as its representations – rather than on a linear historiographic reconstruction. In particular, the scrutiny I propose aims to examine a series of exchanges that have been characterizing this concept since the beginning: the global and the European, the maritime and the territorial, the colony (...) and the state, the imperial and the proprietary. The problematic balance between ‘imperium’ and ‘dominium’ is indeed assumed here as the turning point of the rise of a sovereign power that appears to be originally rooted in the very production and governance of the global space, thus giving up all possible Eurocentric narratives of modernity. To illustrate my argument, I focus on the frontispieces to three of Thomas Hobbes’s most important books, that is, his translation of Thucydides’ Peloponnesian Wars, De Cive and Leviathan. A thorough analysis of these images enables us to understand how these lines of force traverse the very heart of modern European political concepts, along with the mirroring effects that constantly bounce their normative construction of subjectivity back and forth from the periphery to the centre and, ultimately, from the market to the state. (shrink)

This article addresses the modern concept of sovereignty as a multivocal and conflictual semantic field, arguing for the necessity to trace its genealogy based on the structural tensions that haunt its logical framework – as well as its representations – rather than on a linear historiographic reconstruction. In particular, the scrutiny I propose aims to examine a series of exchanges that have been characterizing this concept since the beginning: the global and the European, the maritime and the territorial, the colony (...) and the state, the imperial and the proprietary. The problematic balance between ‘imperium’ and ‘dominium’ is indeed assumed here as the turning point of the rise of a sovereign power that appears to be originally rooted in the very production and governance of the global space, thus giving up all possible Eurocentric narratives of modernity. To illustrate my argument, I focus on the frontispieces to three of Thomas Hobbes’s most important books, that is, his translation of Thucydides’ Peloponnesian Wars, De Cive and Leviathan. A thorough analysis of these images enables us to understand how these lines of force traverse the very heart of modern European political concepts, along with the mirroring effects that constantly bounce their normative construction of subjectivity back and forth from the periphery to the centre and, ultimately, from the market to the state. (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)

The social licence to operate concept is little developed in the academic literature so far. Deployment of the term was made by the United National Guiding Principles on Business and Human Rights and the UN ‘Protect, Respect and Remedy’ Framework, which apply SLO as an argument for responsible business conduct, connecting to social expectations and bridging to public regulation. This UN guidance has had a significant bearing on how public regulators seek to influence business conduct beyond Human Rights to broader (...) Corporate Social Responsibility concerns. Drawing on examples of such public regulatory governance, this article explores and explains developments towards a juridification of CSR entailing efforts by public regulators to reach beyond jurisdictional and territorial limitations of conventional public law to address adverse effects of transnational economic activity. Through analysis of an expansion of law into the normative framing of what constitutes responsible business conduct, we demonstrate a process of juridification entailing a legal framing of social expectations of companies, a proliferation of law into the field of business ethics, and an increased regulation by law of social actors or processes. (shrink)

The paper reconstructs Luhmann’s conception of legal argumentation and justice especially focussing on the aspects of contingency and self-referring operative closure. The aim of his conception is to describe/explain in a disenchanted way—from an external, of “second order” point of view—the work on adjudication, which, rather idealistically, lawyers and judges present as being a matter of reason. As a consequence of some surface similarities with Derrida’s deconstructive philosophy of justice, Teubner proposes integrating the supposed reductive image of formal justice described (...) by Luhmann with the ideal conception of justice presented by Derrida. Here this kind of attempt is rejected as epistemologically wrong. In addition, Luhmann’s theory is argued to have other shortcomings, namely: the failure to understand the pragmatic function of principles, and the incapacity to describe the current legal questions linked with cultures and legal pluralism, which characterise our society. (shrink)

Since 9/11, the possibilities for pluralism and tolerance have been severely tested by a discourse of terrorism and security. The development of an intelligent and cosmopolitan understanding between religious communities in Europe and America has been compromised by a range of legal and political responses to terrorism. While the debate about the berqa has clearly indicated the problems relating to Muslim cultural differences, we argue that legal pluralism and in particular the question of Shari’a tribunals may prove to be a (...) more decisive test of Western multiculturalism. This article examines the many criticisms raised against religious arbitration in domestic affairs and considers the presence of the Shari’a at various levels of society, claiming that the evolution of Sharia-mindedness is compatible both with a faith-based life and with liberal ideals. However, the problem with religious courts lies elsewhere, namely with the fragmentation of social life and the erosion of citizenship. The article concludes by examining the prospects and problems of Turkish entry into the European Union with special reference to the domestic policies of the Justice and Development Party. (shrink)

Globalization can undermine as well as enable public discourse at the national, international, and supranational levels. A challenge for political theory is to imagine how a global public realm might be constituted. Because the public realm has flourished in states whose citizens are related under the rule of law, one might ask whether this model of civil association can be extended to a broader and potentially universal context. Given the contingent obstacles to a global state, realizing civil association globally implies (...) a universal confederation of rule‐of‐law states. If the public realm means free deliberation on the laws of a civil association, the ‘global public realm’ would include deliberation at all three levels. (shrink)

The transformation in the structure of the world mining industry over the last decade has opened up enormous new regions for mineral exploration and development by transnational mining companies in countries in the South. This new access has inevitably brought mining companies into conflict with local communities. With the involvement of transnational advocacy networks and new global publics, these conflicts have prompted a growing transnational debate on the principles that ought to govern mining and community relationships. One effort to provide (...) guidance on this question comes from the World Bank's Operational Directive 4.30 on Involuntary Resettlement. This paper examines the regulatory impact of this policy upon relationships between mining companies and communities, as well as its "legitimation effect" in providing standards which, once met, can serve to certify a degree of responsible behaviour on the part of the company. The analysis of the effects of the directive is taken up in the form a case study involving a transnational mining company operating in the Andes of Peru and the local communities impacted by its land acquisition project. (shrink)

This article aims to contribute to the academic debate on the general crisis faced by law schools and the legal professions by discussing why juristic practice is a matter of experience rather than knowledge. Through a critical contextualisation of Vilhelm Lundstedt’s thought under processes of globalisation and transnationalism, it is argued that the demise of the jurist’s function is related to law’s scientification as brought about by the metaphysical construction of reality. The suggested roadmap will in turn reveal that the (...) current voiding of juristic practice and its teaching is part of the crisis regarding what makes us human. (shrink)

The article examines recent theories of legal and constitutional pluralism, especially their adoption of sociological perspectives and criticisms of the concept of sovereignty. The author argues that John Griffiths's original dichotomy of “weak” and “strong” pluralism has to be reassessed because “weak” jurisprudential theories contain useful sociological analyses of the internal differentiation and operations of specific legal orders, their overlapping, parallel validity and collisions in global society. Using the sociological methodology of legal pluralism theories and critically elaborating on Teubner's societal (...) constitutionalism, the author subsequently reformulates the question of sovereignty as a sociological problem of complex power operations communicated through the constitutional state's organization and reconfigured within the global legal and political framework. (shrink)

This article focuses on theoretical reflections on sovereignty and constitutionalism in the context of the globalization and Europeanisation of the nation states, their politics, and legal systems. Starting from a critical assessment of the Kelsen-Schmitt polemic, the author claims that sovereignty needs to be analysed by the sociological method in order to disclose its current structural differentiation. The constitution of society may be imagined as the multitude of self-constituted and functionally differentiated social subsystems. The constitutional pluralism argument subsequently reconceptualizes sovereignty (...) as socially differentiated and divided between specific subsystems. The EU's differentiated constitutional domain and the paradox of divided sovereignty are used as examples of profound structural and semantic changes in contemporary national and transnational societies. While the sovereign nation-state institutions have become marginalized in political structures of European societies, the self-constitutionalization of the functionally differentiated EU legal system proceeds by internalizing the concept of divided sovereignty and using it semantically as its mode of self-reference. (shrink)

Radical uncertainty plays a major role in the transformation of the social production of knowledge by questioning the centrality of scientific-technical expertise. Important changes are occurring in the discursive and social divisions characterizing the production and management of knowledge, but the ability of these innovations to cope with the challenge of radical uncertainty is doubtful. This seems to call for a reassessment of the forms of knowledge-related social cooperation, but the late modern public sphere does not provide favourable conditions for (...) this endeavour. Is there a way out of this impasse? The answer is difficult and conditional on many factors. However, Dewey's theory of inquiry and of the public sphere may offer a useful standpoint for further investigation. (shrink)

The notion of extant social contracts (ESC), which was the original contribution that Tom Dunfee provided to contractualist business ethics (CBE) and Integrated Social Contracts Theory (ISCT) more specifically, has commanded less research attention to date than one would expect based on its apparent empirical face validity and its disciplinary spanning potential. This article attempts to revive the ESC concept in both normative and positive research at the intersection of business, management, and ethics and law. After identifying three features that (...) positively distinguish ESC from ISCT, this article argues that the yet unrealized conceptual potential of ESC is most likely to be cashed out when it is applied to the field of private international business regulation and when it is conceptually connected to the legitimizing perspective of institutional theory. (shrink)

The article explores the unique character of international commercial arbitration as a globalized phenomenon, where universalizing and harmonizing effects have largely been achieved by private means and spontaneous expansion, outside the States’ direct intervention and control. The evolution of arbitration in recent decades from an alternative to the core mechanism of deciding cross-border commercial controversies is considered. Privatization of this area of dispute resolution is examined in the context of its growing autonomization, marked—as observed by Emmanuel Gaillard—by notable changes in (...) its theoretical representations and narratives. This specific conceptual, institutional, and procedural framework of commercial arbitration reflects the demands of decision-making exercised in a legally, linguistically, and culturally diversified environment. Interpretation and application of law in arbitral cases requires skillful navigation between the rules of domestic, international and transnational origin, performed not only on the level of substantive norms, but also on those involving conflict of laws and procedure. As a consequence, comparative analysis plays a critical and complex role in arbitral decision-making, reaching beyond the mere demands of rendition of relevant provisions, and has been defined sensu largo as a ‘comparative mindset’, characteristic to international commercial arbitration. The article examines this phenomenon and its mechanics, challenges for legal professions and the effect of transnationalization of relevant domestic rules. It also explains the role of comparative analysis as an important instrument, used strategically in the processes of autonomization of commercial arbitration. (shrink)

A new legal field is emerging around blockchain platforms and automated transactions. Understanding the relationships between law, legal enforcement, and these technological systems has become critical for scaling blockchain applications. Because ‘smart contracts’ do not themselves constitute agreements, the first necessary ‘legal’ development for transacting with these technologies involves linking computational transactions to natural language contracts. Various groups have accordingly begun building libraries of machine readable transaction modules that correspond to natural language contracting elements. In doing so, they are creating (...) the building blocks for ever more complex transactions that will ultimately define the entire envelope of computational legal conduct in these environments, and likely standardise the field. However, also critical to emerging blockchain ‘legalities’, is the capacity for dispute resolution and legal enforcement. Beyond the performance of parties, or the quality of goods and services transacted, new mechanisms are also needed to address the performance of the computational transaction systems themselves. Such mechanisms are necessary to address the reality that smart contracts cannot be forced to perform actions beyond the parameters of their coding, even by a judicial order. Legal tools, both technological and institutional, are thus being developed to ‘soften’ the effects of self-executing transactions. In this article we treat these developments as law-making practices that are constitutive of an emerging legal field. Legal engineering exercises of this kind are not novel, and by drawing on historic examples from the common law and international arbitration, we gain insights into the competitive dynamics likely to be shaping legal engagements on the blockchain. (shrink)

Democracy is in serious difficulties. Three features of the crisis stand out. First is the dominant culture of disillusionment in democracy, which transpires as the mistrust in constitutionalist institutions and values. Second, political authority, both at domestic and international levels, is largely substituted by the rule of non-transparent and unpredictable social powers. Third, democratic states are deprived of much of their capacity to govern, but they retain a non-negligible capacity to coerce.The article is structured as follows. Section I introduces Karl (...) Polanyi’s concept of embeddedness and juxtaposes it to the theoretical defense of market disembeddedness advanced by the classical political economy. It then points to the challenge that the complexity of the contemporary society poses to the idea of embeddedness and identifies the need for further analytical clarification of the idea. Section II tries to explain why the idea of embeddedness is intuitively suspect. One reason is found in the domi... (shrink)

El artículo critica, desde una perspectiva neoinstitucionalista y estratégico-relacional, la hipótesios de que la globalización implica la erosión o la desaparción del Estado. Se analiza en primer lugar las funciones, estructuras y evolución del Esatdo liberal alñl estado regulador. Y en segundo lugar, se revisa la naturaleza del sistema neoliberal de Estados en la era global. Se argumenmta que el proceso en juego es el de cración de nuveo estatismo neoliberal de raiz autoritaria.