I am delighted to announce the publication of Entangled Legalities Beyond the State (Nico Krisch (ed.); Cambridge University Press 2021) (ISBN 9781108914642). Nico Krisch (Graduate Institute of International and Development Studies, Geneva) did a marvelous job of bringing together an extraordinary group of people around a subject that was only vaguely visible on the horizon when we started but which is now a critical element in the way in which jurisprudence is now changing to recognize and rationalize the great transformations occurring around what had once been its settled notions built around the state and politics and expressed through memorialized commands and discretionary decision making of the state's political, administrative, and judicial organs. Professor Krisch put it nicely at the beginning of the volume:
Law is usually understood as an orderly, coherent system, but this volume shows that it is often better understood as an entangled web. Bringing together eminent contributors from law, political science, sociology, anthropology, history and political theory, it also suggests that entanglement has been characteristic of law for much of its history. The book shifts the focus to the ways in which actors create connections and distance between different legalities in domestic, transnational and international law. It examines a wide range of issue areas, from the relationship of state and indigenous orders to the regulation of global financial markets, from corporate social responsibility to struggles over human rights. The book uses these empirical insights to inform new theoretical approaches to law, and by placing the entanglements between norms from different origins at the centre of the study of law, it opens up new avenues for future legal research. This title is also available as Open Access.
Contributors include Tobias Berger, Kristen Anker, Larry Catá Backer, Tomer Broude, Machiko Kanetake, Francesco Corradini, Lucy Lu Reimers, Grégoire Mallard, Aurel Niederberger, Antoine Duval, Tomáš Morochovič, Caroline Humfress, Keith Culver, Michael Guidice, Julia Eckert, Ralf Michaels, and Brian Tamanaha.
The book and its contributions are open access. The book contents along with links and chapter summaries are provided below.
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Select 1 - Framing Entangled Legalities beyond the State
o Summary: Framing the volume, this chapter introduces the notion of legal entanglements and lays out implications for our understanding of law and its dynamics. Entanglements – relations between norms from different origins that are neither integrated nor fully separated – are a core feature of the contemporary law beyond the state, and have been characteristic of law for much of its history, but they have long been neglected by legal scholars and theorists conceiving of the law through the prism of legal systems. This chapter traces the origins of the concept, manifestations and forms of entanglement, the dynamics behind them, as well as the consequences for the stability of political and social order. It also uses these engagements to introduce the different contributions to the volume and highlight the different ways in which they reconstruct and assess entanglement and its challenges.
Select Part I - Entangling State Law
Select 2 - Denial, Deferral and Translation
o Summary: This chapter focuses on legal entanglements between international, state and non-state law in postcolonial societies. While undoubtedly a very heterogeneous category that unavoidably escapes reductionist attempts at homogenisation, it argues that those places where colonial powers institutionalized plural legal orders as explicit strategies for the consolidation of their rule constitute a privileged site for the investigation of entangled legalities. This chapter analyses such entanglements by focusing on the dialectic dynamics of approximation and distancing, which unfold between different sets of norms. It identifies three ways in which these dynamics can play out: denial, deferral and translation. The empirical backdrop of this chapter are three vignettes, which illustrate different dynamics of entanglement between international, state and non-state law in contemporary Bangladesh: (1) the Supreme Court’s attempt to ban Islamic fatwas in 2001 (denial); (2) the violent protests this has triggered and the subsequent decision of the Appellate Division of the Supreme Court to stay the verdict for over a decade (deferral); and (3) the work of local activists who, regardless of constitutional developments, seek to carve out emancipatory spaces for marginalized people by simultaneously drawing on multiple normative registers, including Islamic and international human rights norms (translation).
Select 3 - To Be Is to Be Entangled
- By Kirsten Anker PDF HTML
- Summary: This chapter engages with the contributions of Indigenous peoples in North America to a jurisprudence of entanglement, as expressed through historic treaties between colonists and Indigenous peoples. A prevalent contemporary view understands treaties as a form of negotiated co-existence in which, contract-like, different parties agree to exchange – or share – land, resources and jurisdiction. Treaties could thus be seen to provide interface norms for two legal orders, otherwise strangers to each other, which might now become entangled. However, a body of Indigenous scholarship on the resurgent treaty tradition shows up the liberal philosophical premises embedded in this understanding of legal pluralism and the entanglement of norms. Instead, from this perspective, treaties are a recognition that we are always and already in relationship. Further, the key tenets of that principle are that relationships themselves emerge from the more primal way our lifeworld is made up of symbiotic ecosystems. Entanglement in the context of treaties is thus a phenomenon of a different order than conventional legal pluralism: it is simply characteristic of an ontology of which law is a part. The larger implications of this for an ecologically grounded law are explored in conversation with occidental philosophies of entanglement.
Select 4 - And an Algorithm to Entangle Them All?
Summary: This chapter considers the emergence of data-driven analytics and its algorithmic techniques of imposing consequences as defining not just new modalities of governance but also as redefining governance forms, and consequently the ways that legalities entangle. The first step is to understand how data-driven governance differs from conventional forms of governance. One can then examine the points of entanglement and their character, whether within, between or beyond the conventional public law containers of legal space. At the centre is an examination of entanglement of law-norm systems and data-driven or social credit systems. That entanglement requires rationalizing a disjunction in how law/regulation systems understand data-driven metrics-based governance and vice versa, with the disjunction complicating entanglement. The first section briefly sketches the emerging legalities that neither embrace the form nor the language of law. The two sections that follow examine the nature of intersystemic entanglements when data-driven governance legal orders are thrown into the already plural mix. The first is the Chinese ‘social credit’ initiative. The second is US and Western private initiatives around emerging markets for data. Each exhibit distinct characteristics and therefore different forms and qualities of entanglement that suggest a more complex fracture and interacting among ever more different systems of legalities emerging around global trade regimes.
Select 5 - Belt, Road and (Legal) Suspenders
- By Tomer Broude PDF HTML
- Summary. The Belt and Road Initiative (BRI) is a central part of China’s 13th five-year plan, an ambitious program of infrastructure project finance in sixty-five countries, to the tune of US$1 trillion over twenty years. Geopolitically, this might be the most important global governance initiative since the end of the first cold war. But what does it mean for law? Surely it exemplifies entangled legalities. It means different things to the investment protection lawyer at MOFCOM in Beijing, the public procurement regulator in Greece, the law firm partner in Kazakhstan, insurgents in Balochistan and judges in constitutional courts and the European Court of Human Rights. Focusing on actors as nodes of entanglement, this chapter argues that structures of practice as well as cognitive limitations and sociological factors keep law’s engagement with complexity enmeshed but separate, along the lines of (most obviously) national law, but more so along the lines of policy issues and the object-oriented nature of distinct legal fields. The chapter narrates – hypothetically – different views of actors engaging with the BRI to demonstrate the parallel phenomena of separateness and entangledness, and the inevitable interdependence of entangled legal strands, examining the Belgrade–Budapest rail project as a case study. In addition, it emphasizes the close connection between legal entanglement and non-hierarchical, imperial designs.
Select Part II - International Law and Its Interfaces
Select 6 - Giving Due Consideration
Summary: This chapter analyses normative pathways that guide the deliberative space involving UN human rights treaty-monitoring bodies and domestic courts. Judges vary in terms of their degree of engagement with treaty body findings. This chapter highlights that international law itself provides a set of justifications that sustain varied modes of judicial engagement. One such justification pertains to an obligation to consider the specific findings of treaty-monitoring bodies. Before domestic courts, explicit reference to such an obligation is rare. Yet normative variations of the obligation to consider have guided domestic courts’ engagement to treaty body findings. The duty to consider and its variations may not create robust normative paths. Nevertheless, they arguably pave the way for a sustainable and forward-looking deliberative space by creating the opportunities for learning and self-reflection for both the monitoring bodies and domestic courts.
Select 7 - The Social Life of Entanglements
Summary: This chapter seeks to illustrate the construction of ‘entangled legalities’ by investigating the interface of foreign investment norms and human rights. It focuses on social actors’ efforts at shaping the encounter between these norms in sites where their interactions have generated political salience in recent years. Investigating the ‘social life’ of these encounters, the chapter aims to contribute to our understanding of how ‘entangled legalities’ emerge – how and where have they been made and by whom? Drawing upon the framing ideas of this edited volume, the analysis focuses on a plurality of social actors situated in a variety of contexts where bodies of norms and institutions have been brought into contact through practices and discursive statements. Investor–state dispute settlement (ISDS) has remained an important setting where litigants, investment adjudicators and non-governmental organizations have supplied different understandings of the relation between bodies of norms at play shaped by various constraints. However, in contexts beyond ISDS, namely in law-making sites and reform settings, other relevant actors have promoted competing visions of the form of relation between bodies of norms.
Select 8 - International Trade Law
Summary: International trade law is particularly prone to tensions with other areas of global governance given how trade rules interact with public policies addressing environmental and social problems linked to expanding economic activities. This chapter explores how the relations between international trade law and international environmental norms are construed as a matter of law, for example through in-text references to external norms in World Trade Organization (WTO) treaties, and as a matter of social practice, for example when parties make claims about norm relations in the context of WTO litigation, which can catalyse further norm contestation in other ‘fora’. Tracing these legal developments reveals how the international legal landscape can shift due to frictions between bodies of norms. More often than not, such shifts result in subtle adjustments of the relationships between bodies of norms in tension, leaving the substance of overlapping norms unchanged. In some instances, new norms emerge to regulate these interfaces, giving substance to actors’ expectations of how international trade rules should relate to other norms. In this authority game, advantageously negotiating interfaces between bodies of norms becomes increasingly important. The WTO has played this game rather successfully – to the frustration of environmentalists – by establishing strategic linkages on its own terms.
Select Part III - Weaving Transnational Legalities
Select 9 - Targeting Bad Apples or the Whole Barrel?
Summary: When the United Nations Security Council (UNSC) adopted sanctions against Iran and North Korea, it opted for ‘targeted sanctions’, supposed to be more effective and coherent with international norms than the devastating ‘comprehensive sanctions’ applied against Iraq in the 1990s. For most sanctions scholars, the shifts in UNSC sanctions practices from the 1990s to the 2000s reconciled them with UN norms, lowering the possibility of conflict. In contrast, this chapter claims that with the creation of a global ‘sanctions regime complex’, made of UNSC sanctions and unilateral sanctions, the UNSC’s institutional practice has blurred the boundary between targeted and comprehensive sanctions logics, weakening the normative clarity of UN norms. It also claims that the UNSC has not done so voluntarily, with various informal practices being responsible for this outcome. In particular, it claims that the coherence of UNSC targeted sanctions with other UN norms has been weakened through circulation of documents and experts from unilateral to multilateral bodies in charge of sanctions programs and implementation. Through a variety of processes, the authority of the UNSC over sanctions policy has diffused, and the authority of the UN system has been taken over by states imposing the harshest sanctions, in particular the USA.
Select 10 - Seamstress of Transnational Law
Summary: This chapter aims to show that the work of the Court of Arbitration for Sport (CAS), which is often identified as the institutional centre of the lex sportiva, can be understood as that of a seamstress weaving a plurality of legal inputs into authoritative awards. In other words, the CAS panels are assembling legal material to produce (almost) final decisions that, alongside the administrative practices of sports’ governing bodies, govern international sports. It is argued that, instead of purity and autonomy, the CAS’s judicial practice is best characterised by assemblage and hybridity. This argument is supported by an empirical study of the use of different legal materials, in particular pertaining to Swiss law, EU law and the European Convention on Human Rights, within the case law of the CAS. The chapter is a first attempt at looking at the hermeneutic practice of the CAS from the perspective of a transnational legal pluralism that goes beyond the identification of a plurality of autonomous orders to turn its sights towards the enmeshment and entanglement characterizing contemporary legal practice.
Select 11 - The Struggle for International Financial Standards
Summary: This chapter analyses the construction of relations between ‘bodies of norms’ in contexts of global financial governance from the perspective of ‘entanglement’. It examines how entanglements were discursively construed from the 1990s until the period of post-global financial crisis reforms. In the aftermath of the Asian financial crisis, officials at the Bank for International Settlements, International Monetary Fund and United Nations disagreed on how to order relations between multiple norms and institutions deemed to be relevant for global financial stability. Different ordering projects struggled to manage institutional pluralism in global finance. The move to ‘international standards’ authorized actors to shape and order relations between a growing multiplicity of bodies of norms. The construction of the ‘Compendium of Standards’ sought to order relations between a growing number of international financial standards. Other proposals sought to create a more permanent institutional framework, including via legalization. As the challenge of governing multiplicity in contemporary global financial governance persists, none of the different ordering projects has imposed itself as a common frame of reference.
Select 12 - Hidden in the Shades
Summary: Transnational regulation of corporate behaviour is characterized by a multiplicity of reflexive norm-making processes in a variety of different forums, creating a web of corporate social responsibility (CSR) normativity in which relationing, cross-referencing but also contestation between bodies of norms become the rule rather than the exception. These interactions are particularly visible within a subset of CSR norms described as meta-regulatory, which often serve as focal points for entanglement. The chapter focuses on one such instrument – the Organisation for Economic Co-operation and Development (OECD) Guidelines for Multinational Enterprises. The structure of the guidelines facilitates coordinated entanglement by including strategic openings and references to external bodies of norms. Moreover, the existence of OECD National Contact Points (the guidelines’ implementation mechanism) also enables more fluid and contingent interactions between bodies of norms, described in the chapter as ad hoc entanglement. By analysing both coordinated and ad hoc entanglement in relation to the OECD guidelines, the chapter identifies some of the dynamics which characterise the interactions between bodies of CSR norms. The resulting picture is nuanced, with entanglement being present in varying shades ranging from distancing to proximity.
Select Part IV - Situating Entanglements
Select 13 - Entangled Legalities beyond the (Byzantine) State
Summary: This chapter explores the concept of ‘entangled legalities’ in the context of pre-modern and (post-)modern localised legal orders: regional, imperial, national, international, transnational and postnational. The first section explores the juridification of the international legal sphere; it contrasts private international law approaches with postnational law approaches, exploring the ways in which the recent postnational shift from hierarchical to heterarchical governance structures in fact leads us back to fundamental questions first posed by (Classical) Roman law. The second section focuses on the striking predominance of ‘strong’ legal norms in current analyses of transnational and postnational legal entanglements. The third section, in contrast, argues for a shift in scholarly emphasis away from ‘strong’ legal norms towards a more explicit focus on the importance of strategic legal argumentation in the constructing localised legalities, via a case study of the multiple juris(dictional)-generative practices revealed in the record of a specific, sixth-century, Roman (Byzantine) dispute settlement: P. Petra IV.39.
Select 14 - Entanglement of State and Indigenous Legal Orders in Canada
Summary: One prominent way for multiple legal orders to be organized is for one order to claim and to an effective degree enjoy supremacy over the other(s). This is of course a familiar state-centric view of law. Such a view depends heavily on a particular concept of legal system, which has been both substantially developed in legal theory (e.g. in analytical legal philosophy) and observationally available in the practices of many states. However, this system-centred view of law faces some significant challenges in many contexts, in terms of both its descriptive-explanatory accuracy and its political acceptability. This chapter explores the way and extent to which the system-centred view of law is not necessary but contingent and so a matter of choice, and the political implications at stake in such a choice. Deploying a previously developed inter-institutional theory of law, it argues that forms of entangled legalities, rather than hierarchical and dominating legal systems, are often not only possible but politically desirable. To make the case it draws on observations about the dynamic and evolving relations between state and First Nations legal orders in Canada.
Select 15 - Entangled Hopes
Summary:One dynamic for the entanglement of law might be the mobilization of law from below. The myriad mobilizations of law by local social struggles around transnational relations refer to presumed precedents from other situations and other jurisdictions, and claim the applicability of norms from other legal orders. Rumours of rights entangle law. Such mobilizations from below rely on strategic comparisons, sometimes conjectural and tentative, and a belief in law’s coherence. From their position of relative weakness, they appeal to any norm that might provide legal arguments. They struggle to make these norms binding, and hence for their trans-systemic validity. This chapter argues that these entanglements strive for relational coherence – a coherence that is simultaneously trans-systemic and unsystematic. It is trans-systemic inasmuch as it refers to norms from various normative orders, and unsystematic to the extent that it does not move towards an intra-systemic logic. Yet such entanglement might lead to cases being treated increasingly as singular, that is, in relation to their unique characteristics. This is evident in out-of-court settlements in which transnational legal struggles frequently end. The paradox is thus that entanglements engendered by struggles seeking the trans-systemic validity of norms increase attention to the singular characteristics of a constellation.
Select 16 - Tertiary Rules
Summary: H. L. A. Hart famously suggested to understand legal systems as consisting not only of primary rules (rules that require or forbid certain conduct) but also of secondary rules (rules that determine how rules are created, changed and abolished). This is enough for law within one system, but it cannot account for relations between different legal systems. For this purpose, the chapter introduces the concept of tertiary rules that determine a legal system’s relation with another legal system. The most fundamental such tertiary rule is the rule of external recognition – the rule with which a legal system recognizes a foreign law as law. But this is not the only tertiary rule – choice-of-law rules and certain other rules also count as tertiary rules. The chapter demonstrates the empirical and theoretical importance of the concept of tertiary rules and discusses other examples.
Select 17 - A Reconstruction of Transnational Legal Pluralism and Law’s Foundations
Summary: This chapter addresses core theoretical issues surrounding global/transnational legal pluralism, taking up the work of leading theorists. First, is demonstrates that global legal pluralism is very different from earlier versions of legal pluralism (postcolonial and sociological). Next, is exposes the flaw of overinclusive conceptions of legal pluralism, which appears in the global legal pluralism of Paul Berman, and it explains why theoretical concepts of law cannot solve this flaw. It then addresses the profusion of private and hybrid regulatory forms on the domestic and transnational levels, and marks the line between theory and practice. Thereafter, it exposes problems with the relational concept of law formulated for global legal pluralism by Ralf Michaels, showing why it is unsuitable for many situations of legal pluralism. The approach to transnational legal pluralism the chapter articulates avoids these conceptual problems. It centres on conventionally identified forms of law that vary and change over time, which can be grouped in terms of three categories: community law, regime law and cross-polity law. Finally, it sets forth a handful of specific lessons for a reconstructed transnational legal pluralism.