A new issue of Transnational Legal Theory (Volume 5, Issue 2) by Hart Publishing
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Legality as Relative Institutionalisation: MacCormick’s Diffusionism and Transnational Legal Theory
Maksymilian Del Mar
Abstract: This paper offers a reconstruction of the late Neil MacCormick’s institutional theory of law in light of his commitment to the diffusion of power. The paper argues that insofar as we are considering MacCormick’s legacy for transnational legal theory, it is best to marginalise what some have termed his ‘transition’ from radical pluralism to pluralism under international law. From the perspective of his commitment to the diffusion of power, the papers in which MacCormick discusses those issues are seen to have more in common, ie they both attempt to create and sustain a theoretical space in which the relationship between Member State and European institutions is a horizontal one (and thus one in which neither side can be said to be supreme so as to make the other subordinate). MacCormick’s commitment to the diffusion of power is here linked with the nourishment he drew from the thinkers of the Scottish Enlightenment, and especially David Hume. Finally, his institutional theory of law is reconstructed as an account of ‘legality as relative institutionalisation’, this being an account that, inter alia: (1) treats legality as an emergent phenomenon (and is thus able to capture the inchoate and emerging forms of legality that arguably characterise the transnational); and (2) keeps track of the experience of ordinary persons, which not only respects the difficulty in distinguishing between ordinary persons and officials in the realm of the transnational, but also enables scrutiny of the gap between decision-making and those it most affects.
Towards a Natural Law Foundationalist Theory of Universal Human Rights
Anthony Robert Sangiuliano
Abstract: The contemporary literature on the philosophy of human rights features a clash between two opposing theoretical paradigms. The first paradigm, called Functionalism, grounds the nature of human rights in their practical or political significance. The second paradigm, called Foundationalism, grounds the nature of human rights in a pre-political substratum of moral thought to which positive legal-political institutions ought to conform. What tends to make the first paradigm more appealing is that it avoids the problem of grounding human rights in moral considerations that may be ethnocentric and thus not acceptable to all peoples everywhere. This paper makes a case for a version of Foundationalism called Natural Law Foundationalism, which has often been overlooked in the contemporary literature. It argues that Natural Law Foundationalism is a promising view because it is capable of confronting the ethnocentricity problem more effectively than other versions of Foundationalism. It also argues that the view can deliver on its promise because its main tenets have sufficient philosophical defensibility.
What We Talk About When We Talk About International Constitutional Law
Abstract: Everyone is talking about international constitutional law: but several different conversations seem to be going on. A first conversation concerns how international law is developing its own constitution, and a second how domestic constitutional law is internationalising under supranational and transnational pressures. The article adds a third conversation concerning how international law regulates the framing of new or revised polities and their constitutional orders, which has largely been an outlier due to its lack of clear disciplinary frame as either international law or constitutional law. The article explores whether these different conversations, often assumed to be part of a common field of study, in fact talk to each other. Are they one or many? In conclusion it is suggested that the ‘lonely third’ conversation makes explicit a converging consensus across all three conversations, revolving around the idea that constitutional orders in either the domestic or international domain are shaped and made normative by the dialectical interaction between them. This converging consensus not only links all three conversations, but stands to re-work our conception of constitutional foundations in more traditional settled domestic contexts.
Judicial Comparativism and Legal Positivism
Abstract: The article explores the relationship between the use of foreign law in courts and legal positivism. The point of departure is Jeremy Waldron’s notion that foreign consensus is our law; such law exists outside of a legal system, depends on its moral merits and hence brings some of the central positivist commitments into question. The article maintains that even if foreign consensus were our law, this would not undermine legal positivism, and—moreover—that foreign consensus is actually not our law. In so doing, it advances an account of foreign law as a facultative theoretical authority that is best explained by the positivist idea of judicial law making.
Re-Evaluating Shareholder Primacy in the Post-Crisis Context: A View from Comparative Political Economy—Review Essay on Richard Mitchell, Anthony O’Donnell, Shelley Marshall, Ian Ramsay and Meredith Jones, Law, Corporate Governance and Partnerships at Work