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

Publication subTitle ：Exploring Global Governance

Publication series ：ASIL Studies in International Legal Theory

Author： Jan Klabbers;Touko Piiparinen;

Publisher： Cambridge University Press‎

Publication year： 2013

E-ISBN: 9781316908501

P-ISBN(Paperback): 9781107036222

P-ISBN(Hardback): 9781107036222

Subject： D99 international law

Keyword：法律

Language： ENG

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Description

This book addresses conflicts involving how law relates to normative orders. This book addresses conflicts involving how law relates to normative orders, and the assumption that law no longer automatically claims supremacy, but that actors can pick and choose which code to follow. It covers conflicts between legal orders and conflicts involving law and honor, self-regulation, lex mercatoria, local social practices, bureaucracy, religion, professional standards and morality. This book addresses conflicts involving how law relates to normative orders, and the assumption that law no longer automatically claims supremacy, but that actors can pick and choose which code to follow. It covers conflicts between legal orders and conflicts involving law and honor, self-regulation, lex mercatoria, local social practices, bureaucracy, religion, professional standards and morality. 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. Part I. Conceptual and Theoretical Overview: 1. Normative pluralism: an exploration Jan Klabbers and Touko Piiparinen; 2. Exploring the methodology of normative pluralism in the global age Touko Piiparinen; Part II. Normative Pluralism in Law: 3. Peaceful coexistence: normative pluralism in international law Jan Klabbers and Silke Trommer; 4. Inside or out: two types of international legal pluralism André Nollkaemper; Part III. Normative Pluralism and International Law: 5. Law v. honor: normative pluralism in the regulation of military conduct Rain Liivoja; 6. Law v. company rules: between convergence and conflict Katja Creutz; 7. Lex mercatoria in international arbitration Ulla Liukkunen; 8. Law v. Tradition: human rights and witchcraft in sub-Saharan Africa Timo Kallinen; 9. Law v. Bureaucratic culture: the case of the ICC and the transcendence of instrumental rationality Touko Piiparinen; 10. Law v. Religion: state law and religious norms Rubya Mehdi; 11. Global capital markets and financial reporting: international regulation but national application? Pontus Troberg; 12. Responsibility to rebuild and collective responsibility: legal and moral considerations Larry May.

Chapter

Notes on Contributors

Introduction to the Volume

I. INTRODUCTION

II. THE FOCUS OF THIS VOLUME

III. THE SETTING OF THIS VOLUME

IV. THE CONTRIBUTIONS

PART I CONCEPTUAL AND THEORETICAL OVERVIEW

1 Normative Pluralism: An Exploration

I. INTRODUCTION

II. INTERNATIONAL LAW AND ITS SURROUNDINGS

III. NORMATIVE PLURALISM

IV. GLOBAL GOVERNANCE

V. LEGITIMACY

VI. CONCLUDING REMARKS

2 Exploring the Methodology of Normative Pluralism in the Global Age

I. INTRODUCTION

II. ABSTRACTION AS A METHOD TO TRANSCEND GLOBAL COMPLEXITY TO NORMATIVE ORDERING

III. EMBEDDEDNESS OF NORMATIVE PLURALISM IN THE PLURALITY OF PLURALISMS

IV. THE PLURALITY OF LEGITIMATING AUTHORITIES

V. THE IDEA OF LAW AS AN OPEN SYSTEM

VI. ADOPTION OF CRITICAL METHODOLOGY

VII. CONCLUSIONS: THERE ARE ALWAYS TWO STORIES TO TELL ABOUT GLOBALIZATION – AND A THIRD IN THE MAKING

PART II NORMATIVE PLURALISM IN LAW

3 Peaceful Coexistence: Normative Pluralism in International Law

I. INTRODUCTION

II. CONCEPTUAL ISSUES

III. TREATY CONFLICTS (AND HOW TO SOLVE OR DISSOLVE THEM)

IV. TREATIES AND CUSTOMARY INTERNATIONAL LAW

V. TREATIES VERSUS INFORMAL INSTRUMENTS

VI. CONCLUDING REMARKS

4 Inside or Out: Two Types of International Legal Pluralism

I. INTRODUCTION

II. DYNAMICS OF PLURALISM

III. INTERNAL PLURALISM

IV. EXTERNAL PLURALISM

V. CONFRONTING THE IN- AND THE OUTSIDE

VI. CONCLUSION

PART III NORMATIVE PLURALISM AND INTERNATIONAL LAW

5 Law and Honor: Normative Pluralism in the Regulation of Military Conduct

I. INTRODUCTION

II. HONOR AND LAW

III. HONOR AND MILITARY DISCIPLINARY LAW

IV. HONOR AND THE LAW OF ARMED CONFLICT

V. BY WAY OF CONCLUSION

6 Law versus Codes of Conduct: Between Convergence and Conflict

I. INTRODUCTION

II. TRANSNATIONAL CORPORATIONS, NORMATIVE PLURALISM, AND GOVERNANCE GAPS

III. CODES OF CONDUCT – CORPORATE TOOLS FOR SELF-REGULATION

IV. CONVERGENCE RATHER THAN CONFLICT BETWEEN LEGAL STANDARDS AND CODES OF CONDUCT

V. THE PROBLEM OF ENFORCEMENT AS THE DIVIDING LINE BETWEEN LAW AND CODES OF CONDUCT

VI. CONCLUDING OBSERVATIONS

7 Lex Mercatoria in International Arbitration

I. INTRODUCTION

II. THE NEW LEX MERCATORIA – STARTING POINTS

III. PRIVATE INTERNATIONAL LAW, PUBLIC INTERNATIONAL LAW, AND LEX MERCATORIA – PRELIMINARY OBSERVATIONS

IV. LEX MERCATORIA IN CHOICE OF LAW

V. THE IMPACT OF MANDATORY RULES

VI. CONCLUSIONS

8 Law versus Tradition: Human Rights and Witchcraft in Sub-Saharan Africa

I. INTRODUCTION

II. WITCHCRAFT NORMS

III. WITCHCRAFT AND HOLISTIC ONTOLOGY

IV. LEGISLATING WITCHCRAFT

V. MODERNITY OF WITCHCRAFT?

VI. WITCHES HAVE HUMAN RIGHTS TOO!

VII. CONCLUSIONS: LAW AND UNDERSTANDING

9 Law versus Bureaucratic Culture: The Case of the ICC and the Transcendence of Instrumental Rationality

I. INTRODUCTION

II. PROMOTING THE RULE OF LAW: A POSITIVE STORY OF THE NEXUS BETWEEN BUREAUCRATIC AND LEGAL NORMS

III. PATHOLOGIES OF BUREAUCRATIC CULTURE: INSTRUMENTAL RATIONALITY AND FUNCTIONAL DIFFERENTIATION

IV. THE ROME STATUTE SYSTEM AS AN AUTOPOIETIC SYSTEM

V. CAN INSTRUMENTAL RATIONALITY BE TAMED? THE PROSPECTS OF BUREAUCRATIC METANORMS

VI. BUREAUCRATIC METANORMS AS COLLISION NORMS AND TOOLS OF REFLEXIVE JURISPRUDENCE

VII. NORMATIVE PRECONDITIONS FOR THE DOMESTICATION OF RTOP IN THE ICC’S PROCEDURES

VIII. CONCLUSIONS

10 Law versus Religion: State Law and Religious Norms

I. INTRODUCTION

II. MUSLIM MARRIAGES IN DENMARK IN THE OFFICIAL AND UNOFFICIAL SPHERES

III. MODELS OF RELATIONSHIP BETWEEN STATE LAWS AND MUSLIM LAWS OF MARRIAGES AND DIVORCES IN EUROPE: EXAMPLES FROM DENMARK

IV. PROCESS OF CHANGE

V. RECOMMENDATIONS

11 Global Capital Markets and Financial Reporting: International Regulation but National Application?

I. INTRODUCTION

II. HISTORICAL BACKGROUND

III. ACCOUNTING LAWS VERSUS ACCOUNTING STANDARDS

IV. GLOBAL FINANCIAL REPORTING INFRASTRUCTURE

V. IFRS – INTERNATIONAL “LEGISLATION” BUT NATIONAL APPLICATION?

VI. UNACCEPTABLE APPLICATION OF IFRS – WHO DECIDES?

VII. CONCLUSION

12 Responsibility to Rebuild and Collective Responsibility: Legal and Moral Considerations

I. INTRODUCTION

II. HISTORICAL AND PHILOSOPHICAL ROOTS OF THE RESPONSIBILITY TO PROTECT

III. THE DISTRIBUTIVE AND NONDISTRIBUTIVE COLLECTIVE RESPONSIBILITY OF STATES

IV. RESPONSIBILITY TO BUILD OR REBUILD CAPACITY

V. CONFLICTING NORMS OF SOVEREIGNTY AND PROTECTION OF RIGHTS

VI. FOUR PROBLEMS

Conclusions

I. FINDINGS

II. FUTURE DIRECTIONS

Index

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