World Society

""Hybridization has become a defining feature of regulatory frameworks. The combined forces of globalization and privatization together with increased reliance on self-regulation have resulted in the emergence of a multitude of regulatory arrangements which combine elements from several legal orders. This book offers a conceptual framework as well as numerous empirical explorations capable of increasing our understanding of regulatory hybridization. A number of central dichotomies are deconstructed: national vs. transnational law; international vs. transnational law; convergence vs. divergence; soft law vs. hard law; territorial vs. non-territorial, ‘top-down’ vs. ‘bottom-up’ globalization and national vs. global just as the implications of regulatory hybridization for the question of choice of court and conflict of laws are analyzed.


List of Content:

Poul F. Kjaer: Introduction.

Ino Augsberg: Observing (the) Law: The “Epistemological Turn” in Public Law and the Evolution of Global Administrative Law.

Jan Klabbers: Of Round Pegs and Square Holes: International Law and the Private Sector.

Peer Zumbansen: Law and Legal Pluralism: Hybridity in Transnational Governance.

Paulius Jurčys: Regulatory Hybridization in International Intellectual Property Law.

Faye Fangfei Wang: Regulation of Internet Jurisdiction for B2B Commercial Transactions: EU and US Compared.

Hideaki Shiroyama: Dynamics of International Harmonization and Divergence of Safety Standards: The Regulatory Hybridization of Automobile and Food Safety.

Nina Boeger and Joseph Corkin: Are Expert Networks Driving the Trend towards Soft Transnational Coordination?

Mark Fenwick: Transnational Regulatory Networks.

Harm Schepel: Rules of Recognition: A Legal Constructivist Approach to Transnational Private Regulation.

Andreas Maurer: The Concept of Participation in the Making of Transnational Law: Legitimization and Normativity in the Transnational Sphere.

Adeline Chong: State Immunity and Breaches of Fundamental Human Rights.

Ren Yatsunami: The Impact of Transnational Customs on Private International Law.

Maebh Harding: Does Transnational Family Law Exist? Should Adult Relationships be Freed from National Protective Norms?

Poul F. Kjaer: Between Integration and Compatibility: The Reconfiguration of Cognitive and Normative Structures in Transnational Hybrid Law
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The 'conflicts law approach' reconstructs the potential of primarily, but not exclusively, European law to address the threat to democracy that is posed by the concern that citizens would increasingly be subject to the effects of laws which they themselves had not authored. This structural democratic deficit calls for consideration of 'foreign' demands. It also calls for cooperation and mutual respect between political constituencies. The normative basis for understanding conflicts law as a constitutional form with democratically grounded validity claims stems from the proposition that states must acknowledge or establish a law that provides a forum for foreign demands and manifests deference through transnational rules. The approach sets out to examine three types of conflict constellations—horizontal, vertical and diagonal legal conflicts—and three types of law-mediated responses, layered as the scheme of a 'three-dimensional conflicts law'.

In recent decades constitutional conceptuality has provided the central epistemological framework through which the issue of legitimacy of transnational orders has been addressed. Departing from a reconstruction of four central characteristics of transnational orders related to the concepts of organisational hierarchy, norm production, regimes and authority, the ongoing debate on transnational constitutionalism, and how the question of legitimacy beyond the state is addressed within this debate, is pinned out. Finally dimensions of a context adequate concept of the political is developed in order to provide a basis for evaluating the quest for legitimacy in the transnational realm.

"States remain a central form of ordering but only one among several. In the transnational space, a wide range of autonomous public- and private-norm producing organizations and regimes operates, which is not, or only partly controlled, by states. The consequence is that the contemporary world is characterized by a multiplicity of overlapping normative orders that rely on different organizational principles: for example, some are territorially bound and some are functionally delineated. Governance structures have emerged as the form through which the multiplicity of orders is linked together. They are inter-contextual forms which simultaneously serve as buffer zones and transmission belts between these orders. As such, governance structures can be understood as institutional mechanisms that fulfill the function of ensuring the societal embeddedness of autonomous normative orders in the wider world through increased reflexivity.

The type of law which has emerged in order to structure the governance phenomenon reflects the societal function of governance structures. Transnational law is an “in between worlds” law in the sense that a central aspect of transnational law is the framing of learning processes capable of ensuring mutual adaptability between normative orders. As such transnational law fulfills a different function than nation-state law which in essence remains oriented towards the upholding of already established normative expectations. As governance structures are the no man’s land between normative orders, they possess an intrinsic political quality. They are the battlefields were the delineation of normative orders are established and continuously reaffirmed. Grasping the kind of political processes unfolding within governance structures is however conditioned by the development of a concept of the political which reflects the inter-contextual function of governance structures.
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"In the European setting, non-legal and non-political functional systems, such as economy and science, have increasingly substituted their structural couplings with the legal and political systems in the nation state form with couplings to the European Union (EU). A central reason for this is that the couplings to the EU are less tight than the national couplings, thereby granting a higher degree of autonomy to the non-legal and non-political systems. The reason for the reduced tightness of European couplings when compared with national couplings should be found in the internal structure of the EU. Although the EU possess a number of features which gives it a state like character, the EU should rather be understood as a conglomerate which bundles a whole range of rationality forms in a horizontal manner. The central societal contribution and function of the EU’s political system is thus to reduce asymmetric relations between a multiplicity of functional differentiated spheres of society rather than producing substantial unity. Consequently, and in contrast to the political system in the nation state form, the EU does not describe itself as a system which is superior to other functional systems.
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On the backdrop of the 2008 financial crisis this paper introduces an understanding of societal crises as a reduction in the meaning production of social entities, which can either be internally or externally provoked. The emergence of constitutions and, more generally, constitutional structures, can be understood as responses to both forms of crisis. This is the case because they are double-edged structures which are simultaneously oriented towards the maintenance of internal order and stability within a given social entity at the same time as they frame the transfer of the meaning components between the social entities and their environments. Thus, the 2008 financial crisis indicates a failure of constitutional bonding. When observed from an overall structural perspective, the reasons for this failure can be traced back to an increased discrepancy between the structural composition of world society and the constitutional structures in place. The crisis reflects a failure to respond to two simultaneous, inter-related and mutually reinforcing structural transformations. First, there is the increased globalisation, which has led to massive dislocations in the relative centrality of the different national configurations for the reproductive processes of functional systems. Second, there is a structural transformation of the transnational layer of world society through a reduced reliance on the centre/periphery differentiation and an increased reliance on functional differentiation. One of the many consequences of this development is the emergence of new forms of transnational law and politics. A new constitutional architecture which reflects these transformations is needed in order to ensure an adequate constitutional bonding of economic processes, as well as of other social processes.

An assessment is made of what remains of “Thainess” when observed from a world society perspective. In this context, the prime phenomenon of globalization is not an increasing inter-connectedness of people, but rather an increasing isomorphism of forms of social organization, including their directions of change. Modernity’s core characteristic of functional differentiation is briefly described and then used to shed some light on the “Thai” economy, medicine, law, politics, and science. Throughout, special attention is paid to global-country and central-local relations. They are not so much seen as the homogenization of subordinate social forms, but rather as a process of active local adaptation, or as self-organization resulting from “fluctuations” created at the respective higher-levels. From this perspective, it should be clear that an up-to-date political theory of Thailand must be placed into a theory of society that facilitates the comparative study of all other function systems and that can do this by including the phenomenon of world society or globalization.

Stanford School—World Society or World Polity approach—led by John W. Meyer has been largely overlooked despite its revolutionary insights (Robertson 2009). Nevertheless, renewed interest in neoinstitutionalisms and concepts as world society, culture, and legitimacy (Clark 2007) imply Stanford School’s relevance for contemporary social and political sciences. This essay discusses first, the underlying theoretical arguments of the School, second, its main findings and responses to criticisms, and third, Stanford School’s resonance with the Constructivist, Neoinstitutionalist, and Sociological turns in International Relations. Finally, it suggests that Stanford School opens new horizons for EU studies by establishing the ‘‘missing link’’ between globalization and European integration.

""The question whether constitutions exists or can exist at all beyond the state has been a central theme of academic dispute in the last decades. This contribution departs from the historical insight that extensive forms of ordering possessing constitutional qualities always have existed beneath, beside and above the state. In the last decades the debate on constitutionalism beyond the state has however unfolded in two separate discourses: One which focuses on public international organizations and another which focuses on private structures. The former is mainly driven by political scientists and public lawyers and is characterized by an attempt to rework nation state concepts of the political in order to make them compatible with transnational developments. The latter is, on the other hand, systematically downplaying the political dimension of transnational structures. In order to bridge this gap a number of key dimensions of a specific transnational concept of the political is being fleshed out.
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