Globalization has produced transnational legal phenomena in need of theorizing. From this observation flow several questions about transnational legal phenomena such as private legal orders (e.g., ICANN, UDRP, Bernstein (1992) on diamonds), federal norms (e.g., EU law), international law that is not the product of treaties (e.g., lex mercatoria or the norms produced by the WTO appellate body), soft law and international arbitration (ADR). How should legal theorists make sense of these disparate yet related phenomena?
If we are to theorize these phenomena, what form should such theorizing take? This is the question taken up by Calliess and Renner. As they see it, the answer to the question of “global governance” is a mixture or blend of legal theory/jurisprudence and social science (here law and social norms). Each approach asks a different question. From the point of view of legal theory, the question is “analytical” (their word): how to differentiate legal from non-legal norms? Thus stated, the question is familiar to analytically minded legal theorists. The second dimension is advanced in the form of a challenge, which they state thus: “[T]he most pressing demand on contemporary jurisprudence is to make legal concepts compatible with those of the social sciences without at the same time losing sight of the very own purpose of legal thinking, i.e., the normative analysis of legal structures.” (p. 262)
There exists a distinct tension between social science approaches to law and more traditional jurisprudential (think Kelsen 1945 or Hart 1997) accounts of the nature of law. The law and social norms approaches (e.g., Macaulay 1963; Bernstein 1992; Williamson 2005) stress the “interrelatedness or even interchangeability of legal and social norms.” (p. 264) In a sense, the social science perspective sees the world as “norms all the way down,” with law enjoying no special place in the whirl of normativity. Calliess and Renner think the emphasis on social science, particularly the exclusion of an analytical framework for law, misses a central feature of legal norms, that of its rationality (Fried 1981).
How to integrate these two perspectives? The authors look to Systems Theory (Luhmann 2004 and Teubner 2004), embracing a functionalist account of legal norms that motivates their theory of law as an evolutionary normative system. The job of law is to stabilize expectations. The “governance” in “global governance” is accomplished in law through self-referential stabilization which results from two factors: (1) an impartial dispute resolution procedure, and (2) the publication of past decisions.
Calliess and Renner are right about the need to integrate traditional jurisprudential approaches to law with the tools of social science. Law arises beyond the nation state. We may be able to explain why transnational legal phenomena arise (the answer is globalization) but it remains unclear how best to theorize these new phenomena as “law.” This is the next big challenge in legal theory. This article is not perfect in its explication of an analytical account of the nature of law. But Calliess and Renner are asking the right questions. Their attempts to answer these questions are worth close consideration
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