Graduate studies at Western
Ratio Juris 22 (2):260-280 (2009)
|Abstract||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.|
|Keywords||No keywords specified (fix it)|
|Categories||categorize this paper)|
|Through your library||Configure|
Similar books and articles
Joseph Raz (1979). The Authority of Law: Essays on Law and Morality. Oxford University Press.
John Linarelli (2009). Analytical Jurisprudence and the Concept of Commercial Law. Penn State Law Review 114 (1):119-215.
Lawrence O. Gostin & Allyn L. Taylor (2008). Global Health Law: A Definition and Grand Challenges. Public Health Ethics 1 (1):53-63.
M. Baurmann (2000). Legal Authority as a Social Fact. Law and Philosophy 19 (2):247-262.
Jennifer Hendry & Daniel Augenstein, The 'Fertile Dilemma of Law': Legal Integration and Legal Cultures in the European Union.
A. Claire Cutler (2005). Gramsci, Law, and the Culture of Global Capitalism. Critical Review of International Social and Political Philosophy 8 (4):527-542.
William L. Twining (2009). General Jurisprudence: Understanding Law From a Global Perspective. Cambridge University Press.
Added to index2009-06-16
Total downloads35 ( #39,256 of 739,319 )
Recent downloads (6 months)2 ( #37,030 of 739,319 )
How can I increase my downloads?