Fault Lines of Globalization: Legal Order and the Politics of A-Legality (Oxford Constitutional Theory)

The question whether and how boundaries might be constitutive features of any imaginable legal order has yet to be addressed in a systematic and comprehensive manner by legal and political theory. This book seeks to address this important omission, providing an original contribution to the debate about law in a global setting. Against the widely endorsed assumption that we are now moving towards law without boundaries, it argues that every imaginable legal order, global or otherwise, is bounded in space, time, membership, and content. The book is built up around three main insights. Firstly, that legal orders can best be understood as a form of joint action in which authorities mediate and uphold who ought to do what, where, and when with a view to realizing the normative point of acting together. Secondly, that behavior can call into question the boundaries that determine who ought to do what, where and when: a-legality. Thirdly, that this a-legality reveals boundaries as marking a limit and, to a lesser or greater extent, a fault line of the respective legal order. Legal boundaries reveal ways of ordering the who, what, where, and when of behavior which have been excluded, yet which remain within the range of practical possibilities accessible to the collective: however legal boundaries also intimate an order which exceeds the range of possibilities accessible to that collective - the fault line of the respective legal order. Careful analysis of a wide range of legal orders, including nomadism, Roman law, classical international law, ius gentium, multinationals, cyberlaw, lex mercatoria, the EU, global regimes of human rights, and space law validates this thesis. What sense, then, can we make of the normativity of the law, if there can be no inclusion without exclusion? Arguing that legal and political theories misunderstand how legal boundaries do their work of including and excluding, the book develops a normative theory of legal order which is alternative to both communitarianism and cosmopolitanism. A distinctive contribution to the current debate about the nature of globalisation processes, this book examines the boundaries of legal and constitutional orders and the relationship of these boundary issues to the question of the political foundations and legitimacy of legal orders. The question whether and how boundaries might individuate and thereby be constitutive features of any imaginable legal order has yet to be addressed in a systematic and comprehensive manner by legal and political theory. This book seeks to address this important omission, providing an original contribution to the debate about law in a global setting. Against the widely endorsed assumption that we are now moving towards law without boundaries, it argues that every imaginable legalorder, global or otherwise, is bounded in space, time, membership, and content.The book is built up around three main insights. Firstly, that legal orders can best be understood as a form of joint action in which authorities mediate and uphold who ought to do what, where, and when with a view to realising the normative point of acting together. Secondly, that behaviour can call into question the boundaries that determine who ought to do what, where and when: a-legality. Thirdly, that this a-legality reveals boundaries as marking a limit and, to a lesser or greater extent,a fault line of the respective legal order. Legal boundaries reveal ways of ordering the who, what, where, and when of behaviour which have been excluded, yet which remain within the range of practical possibilities accessible to the collective: limits. However legal boundaries also intimate anorder which exceeds the range of possibilities accessible to that collective - the fault line of the respective legal order.Careful analysis of a wide range of legal orders, including nomadism, Roman law, classical international law, ius gentium, multinationals, cyberlaw, lex mercatoria, the EU, global regimes of human rights, and space law validates this thesis. What sense, then, can we make of the normativity of the law, if there can be no inclusion without exclusion? Arguing that legal and political theories misunderstand how legal boundaries do their work of including and excluding, the book develops a normativetheory of legal order which is alternative to both communitarianism and cosmopolitanism 9780199601684 Cover 1 Contents 12 Introduction 14 PART I: LEGAL ORDER 24 1 Legality, Illegality, A-Legality: A Preliminary Analysis 26 1.1 Reorienting the Problem of the Unity of Legal Orders 26 1.2 Legality 31 1.3 Illegality 39 1.4 A-Legality 43 1.5 Boundaries and Limits 52 2 A Topology of Legal Orders in a Global Setting 57 2.1 The Nomos of Nomadism 57 2.2 The Frontiers of Roman Law 62 2.3 Multinationals 69 2.4 Lex Mercatoria 71 2.5 The Law of Cyberspace 78 2.6 Overlapping Legal Orders 82 2.7 The Topography of Legal Space Revisited 87 3 The Identity of Legal Collectives 90 3.1 Individuality and Identity 90 3.2 The Collective as a Self and as the Same 94 3.3 Collective Self and Alterity 103 3.4 Implications and Caveats 109 3.5 Exclusive Territoriality Affirmed 114 3.6 An Enlarged First-Person Plural Perspective 119 PART II: LEGAL ORDERING 128 4 A Genealogy of Legal Ordering 130 4.1 Intentionality and Legal Ordering 131 4.2 Disclosing Something as Something* 135 4.3 We [Ought to] Jointly Disclose Something as Something* in-Order-to-φ 138 4.4 We [Ought to] Jointly Disclose Something as Something* Anew in-Order-to-φ 142 4.5 Ordering and Rationality 146 4.6 Back to the ‘First’ Constitution 156 4.7 The Paradox of Representation 161 4.8 The A-Legal Origins of (Il)legality 165 5 A-Legality 169 5.1 Estrangement 169 5.2 The Normative Complexity of A-Legality 176 5.3 Fault Lines 187 5.4 Civil Disobedience 195 5.5 Chaos 197 6 Setting Legal Boundaries 200 6.1 The Identification of a Collective as a Thing 200 6.2 The Identification of a Collective as a Self 204 6.3 From Identification to Reidentification 210 6.4 Question and Response 214 6.5 The Hiatus between Question and Response 219 6.6 Collective Transformation 222 6.7 The Emergence of a Novel Legal Collective 228 6.8 Collective De-Identification 231 7 A Politics of A-Legality 235 7.1 Inclusion and Exclusion as a Normative Problem 235 7.2 Reciprocity and a Politics of Boundary-Setting 240 7.3 The Non-Reciprocal Origin of Reciprocity 247 7.4 Human Rights as the Rights of Strangers 252 7.5 Dia-Logos 261 Conclusion 274 Bibliography 282 Index 296 A 296 B 296 D 296 E 296 F 296 G 297 H 297 I 297 K 297 L 297 M 297 N 297 O 297 P 298 Q 298 R 298 S 298 T 299 U 299 V 299 W 299 Y 299 The question whether and how boundaries might individuate and thereby be constitutive features of any imaginable legal order has yet to be addressed in a systematic and comprehensive manner by legal and political theory. This book seeks to address this important omission, providing an original contribution to the debate about law in a global setting. Against the widely endorsed assumption that we are now moving towards law without boundaries, it argues that every imaginable legal order, global or otherwise, is bounded in space, time, membership, and content. The book is built up around three main insights. Firstly, that legal orders can best be understood as a form of joint action in which authorities mediate and uphold who ought to do what, where, and when with a view to realising the normative point of acting together. Secondly, that behaviour can call into question the boundaries that determine who ought to do what, where and when: a-legality. Thirdly, that this a-legality reveals boundaries as marking a limit and, to a lesser or greater extent, a fault line of the respective legal order. Legal boundaries reveal ways of ordering the who, what, where, and when of behaviour which have been excluded, yet which remain within the range of practical possibilities accessible to the collective: limits. However legal boundaries also intimate an order which exceeds the range of possibilities accessible to that collective - the fault line of the respective legal order. Careful analysis of a wide range of legal orders, including nomadism, Roman law, classical international law, ius gentium, multinationals, cyberlaw, lex mercatoria, the EU, global regimes of human rights, and space law validates this thesis. What sense, then, can we make of the normativity of the law, if there can be no inclusion without exclusion? Arguing that legal and political theories misunderstand how legal boundaries do their work of including and excluding, the book develops a normative theory of legal order which is alternative to both communitarianism and cosmopolitanism. ## Abstract The question whether and how boundaries might individuate legal orders and in this way be constitutive features thereof has yet to be addressed in a systematic and comprehensive manner by legal and political theory. The book seeks to address this important omission, providing an original contribution to the debate about law in a global setting. Against the widely endorsed assumption that we are now moving towards law without boundaries, it argues that every imaginable legal order, global or otherwise, is bounded in space, time, membership, and content. In effect, legal orders are a form of joint action in which authorities mediate and uphold who ought to do what, where, and when in order to realise the normative point of acting together. The book also argues that behaviour can call into question the boundaries of a legal order: a-legality. When questioned by a-legal behaviour, boundaries appear as limits that reveal excluded practical possibilities which remain within the range of possibilities accessible to the collective. Legal boundaries appear as fault lines when a-legal behaviour intimates an order which exceeds the range of possibilities accessible to that collective. Careful analysis of a wide range of legal orders, including nomadism, classical international law, multinationals, cyberlaw, lex mercatoria, and a global regime of human rights validates this thesis. Arguing that legal and political theories misunderstand how legal boundaries do their work of including and excluding, the book concludes by outlining a normative theory of legal order that is alternative to both communitarianism and cosmopolitanism. The question whether and how boundaries might individuate and thereby be constitutive features of any imaginable legal order has yet to be addressed in a systematic and comprehensive manner by legal and political theory. This book seeks to address this important omission, providing an original contribution to the debate about law in a global setting. Against the widely endorsed assumption that we are now moving towards law without boundaries, it argues that every imaginable legal order, global or otherwise, is bounded in space, time, membership, and content. The book is built up around three main insights. Firstly, that legal orders can best be understood as a form of joint action in which authorities mediate and uphold who ought to do what, where, and when with a view to realising the normative point of acting together. Secondly, that behaviour can call into question the boundaries that determine who ought to do what, where and when: a-legality. Thirdly, that this a-legality reveals boundaries as marking a limit and, to a lesser or greater extent, a fault line of the respective legal order. Legal boundaries reveal ways of ordering the who, what, where, and when of behaviour which have been excluded, yet which remain within the range of practical possibilities accessible to the collective: limits. However legal boundaries also intimate an order which exceeds the range of possibilities accessible to that collective - the fault line of the respective legal order -- Provided by Publisher A Distinctive Contribution To The Current Debate About The Nature Of Globalisation Processes, This Book Examines The Boundaries Of Legal And Constitutional Orders And The Relationship Of These Boundary Issues To The Question Of The Political Foundations And Legitimacy Of Legal Orders. Introduction -- Legality, Illegality, A-legality : A Preliminary Analysis -- A Topology Of Legal Orders In A Global Setting -- The Identity Of Legal Collectives -- A Genealogy Of Legal Ordering -- A-legality -- Setting Legal Boundaries -- A Politics Of A-legality -- Conclusion. Hans Lindahl. Includes Bibliographical References (pages 269-281) And Index.