Legal Positivism in a Global and Transnational Age (Law and Philosophy Library, 131)

A theme of growing importance in both the law and philosophy and socio-legal literature is how regulatory dynamics can be identified (that is, conceptualised and operationalised) and normative expectations met in an age when transnational actors operate on a global plane and in increasingly fragmented and transformative contexts. A reconsideration of established theories and axiomatic findings on regulatory phenomena is an essential part of this discourse. There is indeed an urgent need for discontinuity regarding what we (think we) know about, among other things, law, legality, sovereignty and political legitimacy, power relations, institutional design and development, and pluralist dynamics of ordering under processes of globalisation and transnationalism. Making an important contribution to the scholarly debate on the subject, this volume features original and much-needed essays of theoretical and applied legal philosophy as well as socio-legal accounts that reflecton whether legal positivism has anything to offer to this intellectual enterprise. This is done by discussing whether global and transnational cultural, socio-political, economic, and juridical challenges as well as processes of diversification, fragmentation, and transformation (significantly, de-formalisation) reinforce or weaken legal positivists’ assumptions, claims, and methods. The themes covered include, but are not limited to, absolute and limited state sovereignty; the ‘new international legal positivism’; Hartian legal positivism and the ‘normative positivist’ account; the relationship between modern secularisation, social conventionalism, and meta-ontological issues of temporality in postnational jurisprudence; the social positivisation of human rights; the formation and content of jus cogens norms; feminist critique; the global and transnational migration of principles of justice and morality; the Vienna Convention on the Law of Treaties rule of interpretation; and the responsibility of transnational corporations. Legal Positivism in a Globaland Transnational Age Acknowledgements Contents Contributors Legal Positivism in a Global and Transnational Age: Introduction 1 Rationale and Scope 2 Outline of the Volume References Part I: Legal Positivism, the State, and International Legal Theory About the Impossibility of Absolute State Sovereignty. The Modern Era and the Early Legal Positivist Claim 1 Introduction 2 Self-ownership, Sovereignty and Different Types of Constraints 3 Modern Times: Between Legal Positivism and Sovereignty 3.1 In Continental Europe, Bodin 3.2 In England, Hobbes 3.3 Not Only Bodin and Hobbes 4 Conclusion References Taking Legal Positivism Beyond the State: Finding Secondary Rules? 1 Introduction 2 International Law as a Primitive Legal Order? Taking Hart to Task 3 International Law as a Legal System: Finding Secondary Rules? 4 Thinking Functionally About Law? Methodological Challenges to Hartian Legal Positivism 5 Conclusion References New International Legal Positivism: Formalism by Another Name? 1 Introduction 2 Kammerhofer and Kelsen 2.1 ``[A] Mere Scheme of Analysis ́ ́ 2.2 ``[N]ormative Alternatives, ́ ́ Austrian Constitutions, and Dichotomy/Dialectic 3 d ́Aspremont, Hart, and ``Belief ́ ́ 3.1 The ``Source Thesis ́ ́, the ``Social Thesis ́ ́, and the ``Culture of Formalism ́ ́ 3.2 ``International Law as a Belief System ́ ́ 4 Conclusion: The Form, the Ideal, and the Real References Part II: Legal Positivism and Social Practices Legal Positivism as Tekhnē: Postnational Normative Ontology and the Positivist Effectual Temporality 1 Introduction 2 Ontology and Temporality: The Thought of the Early Heidegger 3 Legal Positivism as Tekhnē 4 The Effectual Temporality of Modern Secularisation and Social Conventionalism 5 Conclusion References Barking Up the Wrong Tree? Systems Theory and the `Social Positivisation ́ of Human Rights 1 Introduction 2 The Social Positivisation of Human Rights 3 Some Problems with the Social Positivisation of Human Rights 4 A Series of `Turns ́ Away from the Functional Perspective 5 Conclusion References Before and After Legal Positivity: Peremptory Norms from Global and Transnational Social Practice 1 Introduction 2 Legal Positivism and Peremptory Norms 3 Legal Practice and the Minimum Content of Natural Law 4 Legal Practice, Reasons and Peremptory Rules 5 Integration and Fragmentation of Legal Orders 6 Conclusion References Part III: Beyond Legal Positivism? Positivism and the Peace/Power Dialectic: Feminist Reflections in a Transnational Age 1 Introduction 2 What Is Law? The Hegemony of Positivism 3 Myth and Attachment 4 Positivism: A Methodology for Peace and the Peace/Power Dialectic 5 The Paradox of Rights: Making Positivism Respectable 6 Beyond a de minimis Standard: Feminism et al 7 Conclusion References Beyond Legal Positivism in Transnational Law 1 Introduction 2 The Emergence of Transnational Law and Justice 3 Is Legal Positivism Appropriate as a Paradigm? The Limits of Legal Positivism 4 Legal Interpretation and Cosmopolitanism 5 Some Case Studies 6 Conclusion References How Post-Positivism Sheds Light on Treaty Interpretation: Celebrating the VCLT Rule of Interpretation 1 Street Lights, Successful Practice and International Legal Don Quixotism 2 Post-Positivism, Geology, Cubism 2.1 Beyond Ascertainment 2.2 Beyond Internationality 2.3 Beyond Disciplinarity 3 Lessons for and from the VCLT 3.1 From Ascertainment to Argument 3.2 Transnational Interpretation 3.3 Transdisciplinary Interpretation 4 A Cubistic Conclusion References Responsibility of Corporations in International Law: Positivism and Transnationalism Revisited 1 Introduction: Nature of the Challenge 2 Between Jessup and Hart: What International Law Is and Should Do 3 The Corporation in International Law 4 Big Elephant in the Room: Positivism 5 Conclusion References A theme of growing importance in both the law and philosophy and socio-legal literature is how regulatory dynamics can be identified (that is, conceptualised and operationalised) and normative expectations met in an age when transnational actors operate on a global plane and in increasingly fragmented and transformative contexts. A reconsideration of established theories and axiomatic findings on regulatory phenomena is an essential part of this discourse. There is indeed an urgent need for discontinuity regarding what we (think we) know about, among other things, law, legality, sovereignty and political legitimacy, power relations, institutional design and development, and pluralist dynamics of ordering under processes of globalisation and transnationalism. Making an important contribution to the scholarly debate on the subject, this volume features original and much-needed essays of theoretical and applied legal philosophy as well as socio-legal accounts that reflect on whether legal positivism has anything to offer to this intellectual enterprise. This is done by discussing whether global and transnational cultural, socio-political, economic, and juridical challenges as well as processes of diversification, fragmentation, and transformation (significantly, de-formalisation) reinforce or weaken legal positivists' assumptions, claims, and methods. The themes covered include, but are not limited to, absolute and limited state sovereignty; the 'new international legal positivism'; Hartian legal positivism and the 'normative positivist' account; the relationship between modern secularisation, social conventionalism, and meta-ontological issues of temporality in postnational jurisprudence; the social positivisation of human rights; the formation and content of jus cogens norms; feminist critique; the global and transnational migration of principles of justice and morality; the Vienna Convention on the Law of Treaties rule of interpretation; and the responsibility of transnational corporations "A theme of growing importance in both the law and philosophy and socio-legal literature is how regulatory dynamics can be identified (that is, conceptualised and operationalised) and normative expectations met in an age when transnational actors operate on a global plane and in increasingly fragmented and transformative contexts. A reconsideration of established theories and axiomatic findings on regulatory phenomena is an essential part of this discourse. There is indeed an urgent need for discontinuity regarding what we (think we) know about, among other things, law, legality, sovereignty and political legitimacy, power relations, institutional design and development, and pluralist dynamics of ordering under processes of globalisation and transnationalism. Making an important contribution to the scholarly debate on the subject, this volume features...essays of theoretical and applied legal philosophy as well as socio-legal accounts that reflect on whether legal positivism has anything to offer to this intellectual enterprise. This is done by discussing whether global and transnational cultural, socio-political, economic, and juridical challenges as well as processes of diversification, fragmentation, and transformation (significantly, de-formalisation) reinforce or weaken legal positivists' assumptions, claims, and methods. The themes covered include, but are not limited to, absolute and limited state sovereignty; the 'new international legal positivism'; Hartian legal positivism and the 'normative positivist' account; the relationship between modern secularisation, social conventionalism, and meta-ontological issues of temporality in postnational jurisprudence; the social positivisation of human rights; the formation and content of jus cogens norms; feminist critique; the global and transnational migration of principles of justice and morality; the Vienna Convention on the Law of Treaties rule of interpretation; and the responsibility of transnational corporations"-- Back cover