Exploring the Landscape of Climate Law and Scholarship: Two Emerging Trends
Exploring the landscape of climate law, this chapter identifies two emerging trends increasingly visible in climate law scholarship. The first relates to the multi-layered nature of climate law. Here, the chapter argues that our understanding of the complex web of legal norms that address climate change necessitates research that also takes into consideration interactions between various sources of legal authority in regulating climate change, including their hierarchies, synergies and tensions. In addition to benefitting those implementing climate law on the ground, such an approach makes it possible to analyse the global implications of climate law, including its effectiveness and the mutual supportiveness of its various layers. The second relates to deformalization of climate law; the expanding role of non-state actors, soft law instruments and informal collaboration in global efforts to address climate change. While climate law scholarship is increasingly paying attention to this phenomenon, this chapter argues that accounting for the role of non-state actors and voluntary regulatory initiatives involves some important doctrinal challenges, including how to avoid becoming overtly descriptive and retain a normative focus.
Global Legal Pluralism
Some challenges of legal globalization closely resemble those formulated earlier for legal pluralism: the irreducible plurality of legal orders, the coexistence of domestic state law with other legal orders, the absence of a hierarchically superior position transcending the differences. This review discusses how legal pluralism engages with legal globalization and how legal globalization utilizes legal pluralism. It demonstrates how several international legal disciplines - comparative law, conflict of laws, public international law, and European Union law - have slowly begun to adopt some ideas of legal pluralism. It shows how traditional themes and questions of legal pluralism - the definition of law, the role of the state, of community, and of space - are altered under conditions of globalization. It addresses interrelations between different legal orders and various ways, both theoretical and practical, to deal with them. And it provides an outlook on the future of global legal pluralism as theory and practice of global law.
Normative Creativity and Global Legal Pluralism: Reflections on the Democratic Critique of Transnational Law
One of the key achievements of anti-globalization movement was to trigger a wide-ranging debate about the legitimacy of the governance structures that control the international arena. The anti-globalizers accuse international organizations such as the WTO or the IMF as being undemocratic, and call for a radical reform of these organizations, with the goal of producing more democratic regimes. While it is hard to doubt the genuineness of the anti-globalization critique, and the deep aspiration for a voice that underlies it, its theoretical and pragmatic implications remain unclear. Two questions seem to lie at the heart of this difficulty. First, what does the notion of legitimacy mean in the transnational context? Second, in what sense does the call for democratization solve the problem of legitimacy? These questions point out the deep problematic of the linkage between legitimacy and democracy at the transnational level. This article considers this problematic by taking a closer look into this coupling. In its first part (sections I to III) the article reviews some of the more prominent responses to the challenge of transnational legitimacy: from the Westphalian-inspired concept of indirect democratic supervision, to the more universalistic ideas of NGOs-led democratization and directly deliberative democracy. It is argued that none of these narratives provides a convincing response to the democracy/legitimacy puzzle. The fragility of the legitimacy/democracy connection points to the need for an alternative understanding of legitimacy, for another standpoint from which to observe the current calls for the democratization of transnational law. The article concludes (sections IV and V) by proposing an alternative interpretation to the concept of legitimacy (vis-a-vis democracy) drawing on the ideas of creative norm-making, creative institution and social pluralism.