Transnationalisation and Legal Actors: Legitimacy in Question

Description

Transnational tendencies have led to a pluralistic legal environment in which emerging and established legal actors, regulatory levels and types of legal norms co-exist, compete and interact in complex ways. This challenges and changes not only how legal norms are created, applied and enforced but also when these actors, norms and processes are considered legitimate. The book investigates how states and non-state actors interact in transnational settings and pays attention to the understudied question of what effect transnational tendencies have on the legitimacy of legal actors, norms and processes. It seeks to confront three fundamental questions: Has legitimacy significantly changed? Who creates norms and with which consequences for legal procedures and norms? The book considers the question of legitimacy from a broad range of legal perspectives, including environmental law, human rights law and commercial law. It maps out the contours of legitimacy today with an emphasis on the reactions of central actors like states and courts to transnational tendencies. The book thereby provides a conceptually powerful structure within which to further debate the complexity of transnational tendencies in law and proposes innovative approaches to problem solving while designing pathways for further reflection on the development of law in a transnational context. Cover Half Title Series Page Title Page Copyright Page Contents Notes on contributors Preface Introduction: Transnational tendencies, law and legitimacy Transnational tendencies and their effect on law The focus of the book: Legitimacy in the transnational context Legitimacy in the transnational context Describing legitimacy Conceptual clarification Structure and content of the volume Part I Transnational tendencies in law Chapter 1 Five theses on the dialectic of unity and plurality in postnational law 1 thesis: reversal of the hierarchy of unity and plurality 2 thesis: the need for a conceptual framework 3 thesis: primacy of interlegality over simple diversity and radical pluralism 4 thesis: the need to rethink internal unity 5 thesis: from universal law to the plurality of discursive-cultural unities Chapter 2 The politics of transnational law Introduction Design choices in international law The backlash against international law The dark side of transnationalism: State strategies to cope with transnationalism Conclusions Chapter 3 Transnationalism in the Arctic Ocean: Legitimacy strategies of the Inuit Circumpolar Council, the European Union and China Introduction The ICC The European Union China Comparing legitimisations Conclusion Chapter 4 Transnational ecosystem-based norms covering the Danish/Greenlandic Arctic marine area Introduction Transnational cooperation on ecosystem-based marine protection norms Transnational norms as an integral part of the EU’s legal order The Danish responsibility for the marine area around Greenland The missing legal protection as well as the missing ecosystem-based approach Legitimacy of the transnational actors and their norms Chapter 5 Brexit: A note on the EU’s interlegality Introduction Maps, scales and the notion of interlegality Brexit A European identity British identity Concluding remarks Chapter 6 Beyond nations and continents?: Harmony and solidarity as common endeavours in a digital era of populism, propaganda and fiction? Introduction Transnationalism in a world of asymmetry and disparity Harmony and solidarity as common endeavours? Populism Propaganda Fiction in a digital era Conclusion Part II Developing regulatory legitimacy under transnationalisation Chapter 7 Development of transnational contract law? Introduction Introduction to EA clauses Comparative law Companies as legislators and legitimacy Conclusion Chapter 8 Towards the participation of a global public in transnational law-making? Everyday ICT platforms as legitimacy opportunities for bottom-up governance Introduction Methodology Inclusive transnational law-making and legitimacy: Habermasian perspectives The use of ICT in the evolution of the business and human rights regime ICT and bottom-up governance: Incremental developments at the local level Challenges and opportunities Conclusion Chapter 9 Pushing back international human rights law – Counter reaction to transnational law? Current challenges to human rights law International actors – Questioned legitimacy? Human rights scepticism: political rhetoric and popular frustration? Reforming or curtailing the human rights system? Concluding observations on the legal nature of controversies Chapter 10 Balancing legal obligations in Europe’s cooperation with Libya in the fight against migrant smuggling Introduction International cooperation based on respect for human rights The duty to cooperate under the Migrant Smuggling Protocol Rights at risk in cooperation: obligation and reality Europe’s legitimacy dilemma Conclusion Part III Application, enforcement and the challenges of legitimacy Chapter 11 Enforcing transnational labour law in local contexts Introduction The principle of equality Labour inspection in Italy Reinventing tools for labour law enforcement in Prato Conclusion Chapter 12 The principle of equality as a transnational principle Introduction The principle of equality in an EU/EC context Legitimacy of the transnational principle as a supranational principle Remarks on legitimacy Procedural and substantive legitimacy – A legal theory perspective Conclusion Chapter 13 How domestic courts may shape international commercial law norms Introduction The authority for domestic courts to shape transnational norms The current state of the judicial dialogue Assessing the persuasive value of foreign court decisions Conclusion Chapter 14 Transnational religious law – Exemplified by the United Methodist Church Introduction The Book of Discipline and the Book of Resolutions of the United Methodist Church: a transnational legal order of religious law The Danish law on religious communities versus the religious law of the Methodist Church Legitimacy behind a transnational religion law allowing discrimination on the basis of sexuality Conclusion Chapter 15 Is formality legitimacy?: Defining the obligations of non-state armed groups Introduction Applying the state-based international legal system to non-state armed groups Beyond states: direct contact with non-state armed groups Special agreements, unilateral declarations and codes of conduct Pedigree or effect? The future for international law and transnational regulation Legal actors on the transnational scene Emerging tendencies Perspectives Conclusion: Transnationalisation and legal actors: Legitimacy in question Legal actors on the transnational scene Emerging tendencies Perspectives Index