Normative Pluralism and International Law: Exploring Global Governance (ASIL Studies in International Legal Theory)

This book addresses conflicts involving different normative orders: what happens when international law prohibits behavior, but the same behavior is nonetheless morally justified or warranted? Can the actor concerned ignore international law under appeal to morality? Can soldiers escape legal liability by pointing to honor? Can accountants do so under reference to professional standards? How, in other words, does law relate to other normative orders? The assumption behind this book is that law no longer automatically claims supremacy, but that actors can pick and choose which code to follow. The novelty resides not so much in identifying conflicts, but in exploring if, when and how different orders can be used intentionally. In doing so, the book covers conflicts between legal orders and conflicts involving law and honor, self-regulation, lex mercatoria, local social practices, bureaucracy, religion, professional standards and morality.-- Provided by Publisher Cover 1 Normative Pluralism and International Law 3 Series 4 Title 5 Copyright 6 Contents 7 Notes on Contributors 9 Introduction to the Volume 13 I. Introduction 13 II. The Focus of This Volume 14 III. The Setting of This Volume 17 IV. The Contributions 19 Part I Conceptual and Theoretical Overview 23 1 Normative Pluralism: An Exploration 25 I. Introduction 25 II. International Law and Its Surroundings 27 III. Normative Pluralism 29 IV. Global Governance 37 V. Legitimacy 41 VI. Concluding Remarks 45 2 Exploring the Methodology of Normative Pluralism in the Global Age 47 I. Introduction 47 II. Abstraction as a Method to Transcend Global Complexity to Normative Ordering 52 III. Embeddedness of Normative Pluralism in the Plurality of Pluralisms 54 IV. The Plurality of Legitimating Authorities 60 V. The Idea of Law as an Open System 63 VI. Adoption of Critical Methodology 67 VII. Conclusions: There Are Always Two Stories to Tell about Globalization – and a Third in the Making 71 Part II Normative Pluralism in Law 77 3 Peaceful Coexistence: Normative Pluralism in International Law 79 I. Introduction 79 II. Conceptual Issues 81 III. Treaty Conflicts (and How to Solve or Dissolve Them) 85 A. The Law (Such as It Is) 85 B. Diversion Techniques 88 C. Claiming or Granting Priority 91 IV. Treaties and Customary International Law 93 A. What Conflicts? 93 B. (Dis)solving Conflicts 94 V. Treaties versus Informal Instruments 102 VI. Concluding Remarks 104 4 Inside or Out: Two Types of International Legal Pluralism 106 I. Introduction 106 II. Dynamics of Pluralism 110 A. Conventional Pluralism 110 B. Modern Pluralism 116 III. Internal Pluralism 120 A. The Premise of Formal Supremacy 120 B. Accommodating Pluralism 121 C. Unresolved Challenges 127 IV. External Pluralism 133 A. The Resistance against Supremacy of International Law 133 B. Accommodation of International Rules 136 C. Unresolved Challenges 138 V. Confronting the In- and the Outside 142 VI. Conclusion 149 Part III Normative Pluralism and International Law 153 5 Law and Honor: Normative Pluralism in the Regulation of Military Conduct 155 I. Introduction 155 II. Honor and Law 156 III. Honor and Military Disciplinary Law 161 A. Prejudicial and Discrediting Conduct 161 B. Conduct Unbecoming an Officer and a Gentleman 164 IV. Honor and the Law of Armed Conflict 168 A. The Principle of Chivalry 169 B. Treachery and Perfidy 171 V. By Way of Conclusion 176 6 Law versus Codes of Conduct: Between Convergence and Conflict 178 I. Introduction 178 II. Transnational Corporations, Normative Pluralism, and Governance Gaps 180 III. Codes of Conduct – Corporate Tools for Self-Regulation 184 IV. Convergence Rather than Conflict between Legal Standards and Codes of Conduct 189 V. The Problem of Enforcement as the Dividing Line between Law and Codes of Conduct 192 A. Self-Regulatory Codes of Conduct as Nonlaw 193 B. Codes of Conduct as Soft Law 198 C. Self-regulation as Law 202 Codes of Conduct in Litigation 203 Codes of Conduct Included in Contractual Agreements 207 VI. Concluding Observations 209 7 Lex Mercatoria in International Arbitration 213 I. Introduction 213 II. The New Lex Mercatoria – Starting Points 217 III. Private International Law, Public International Law, and Lex Mercatoria – Preliminary Observations 220 IV. Lex Mercatoria in Choice of Law 221 A. Lex Mercatoria as the Applicable Law 222 B. The Growing Role of Codifications 224 C. Supplementing Lex Mercatoria 225 D. Lex Mercatoria as a Supplement of the Applicable Law 226 e. Evaluation 227 V. The Impact of Mandatory Rules 229 A. Overriding Mandatory Rules 230 B. Public Policy 234 C. The Effect of Mandatory EU Law 236 D. Evaluation 237 VI. Conclusions 239 8 Law versus Tradition: Human Rights and Witchcraft in Sub-Saharan Africa 241 I. Introduction 241 II. Witchcraft Norms 243 III. Witchcraft and Holistic Ontology 248 IV. Legislating Witchcraft 250 V. Modernity of Witchcraft? 253 VI. Witches Have Human Rights Too! 254 VII. Conclusions: Law and Understanding 260 9 Law versus Bureaucratic Culture: The Case of the ICC and the Transcendence of Instrumental Rationality 263 I. Introduction 263 II. Promoting the Rule of Law: A Positive Story of the Nexus between Bureaucratic and Legal Norms 267 III. Pathologies of Bureaucratic Culture: Instrumental Rationality and Functional Differentiation 269 IV. The Rome Statute System as an Autopoietic System 275 V. Can Instrumental Rationality Be Tamed? The Prospects of Bureaucratic Metanorms 282 VI. Bureaucratic Metanorms as Collision Norms and Tools of Reflexive Jurisprudence 287 VII. Normative Preconditions for the Domestication of RtoP in the ICC’s Procedures 290 VIII. Conclusions 294 10 Law versus Religion: State Law and Religious Norms 296 I. Introduction 296 II. Muslim Marriages in Denmark in the Official and Unofficial Spheres 297 III. Models of Relationship between State Laws and Muslim Laws of Marriages and Divorces in Europe: Examples from Denmark 300 A. Assimilation 300 Danish Civil Marriage Only 301 Danish Civil Divorce Only 302 B. Continuing Conflict 303 Muslim Nikah Marriage Only 303 Muslim Talaq Only 304 C. Agglomeration 306 Danish Civil Marriage and Muslim Nikah Marriage 306 D. Danish Civil Divorce and Muslim Talaq 307 E. Noninstitutionalization 308 Nonmarried Cohabiting Families or Living Together without Marriage: Neither Danish Civil Marriage nor Muslim Nikah Marriage 308 F. Integration 309 IV. Process of Change 310 V. Recommendations 312 11 Global Capital Markets and Financial Reporting: International Regulation but National Application? 313 I. Introduction 313 II. Historical Background 314 III. Accounting Laws versus Accounting Standards 317 IV. Global Financial Reporting Infrastructure 319 a. International Accounting Standards 320 b. Audit Committees and International Auditing Standards 324 c. Regulatory Oversight 325 V. IFRS – International “Legislation” but National Application? 326 A. Culture 326 B. Culture and Accounting 329 VI. Unacceptable Application of IFRS – Who Decides? 332 VII. Conclusion 333 12 Responsibility to Rebuild and Collective Responsibility: Legal and Moral Considerations 335 I. Introduction 335 II. Historical and Philosophical Roots of the Responsibility to Protect 336 III. The Distributive and Nondistributive Collective Responsibility of States 338 IV. Responsibility to Build or Rebuild Capacity 342 V. Conflicting Norms of Sovereignty and Protection of Rights 345 VI. Four Problems 348 Conclusions 352 I. Findings 352 II. Future Directions 356 Index 361