This chapter addresses the book’s first question by focusing on what classical Pragmatism can tell us about constructivist-inspired norm theory. Pragmatism can contribute to a new wave of norm research, which focuses on how normativity (or appropriateness) is established and not just how norms change. Pragmatism finds normativity in experimental processes that test a norm’s ability to ameliorate the lived experience in social and political contexts (rather than in abstract theorizing). This requires a commitment to epistemic fallibilism, deliberation and inquiry. Drawing on the writings of Peirce and Dewey in particular, the chapter argues that this process can only resolve normative doubt and establish epistemic authority if the knowledge of those affected by a practice is included in the community of inquiry that establishes normativity. What Dewey called a ‘stock of learning’ emerges from this process, which can be used as a starting point for acting in uncertain situations and judging the relative strength of the alternatives offered in processes of norm contestation. The chapter relates this argument to important contributions to norm theory, including the Habermasian-inspired ‘logic of arguing’ and Antje Wiener’s ‘theory of contestation’. It illustrates the Pragmatist contribution with reference to the debate on the anti-torture norm.

This chapter introduces the concepts of convergence and fragmentation in international human rights law (IHRL) by providing and discussing their definitions and meanings. Building on the conclusion of the 2006 ILC Report on Fragmentation in international law and drawing on existing literature on the matter, the chapter assesses the extent of normative fragmentation and proposes a new definition of judicial fragmentation in IHRL. Moreover, this chapter also engages in a discussion of how convergence and fragmentation relate to the concepts of universality and relativism, key for any comparative discussion on human rights.

In this chapter, we consider the ways in which these normative framings structure both policy interventions but also ways of thinking about the multicultural nature of contemporary Britain. The work of the Blair Government’s Commission on Integration and Cohesion is considered where one of the authors served as a commissioner between 2006 and 2008. The notions of integration and cohesion are considered for the ways in which they, at times, fail to provide a particularly helpful frame for understanding the dynamics of social change, the diachronic rather than synchronic evolution of racialised politics in the United Kingdom, the highly localised restructuring of economy and society that structure the crucibles out of which new diversities emerge.

To understand why a narrative conception of identity offers a robust basis for understanding the nature and ethical significance of the role of personal bioinformation in self-characterisation, it is necessary first to establish what such a conception involves. This chapter reaches beyond metaphors of storytelling to review the key features of several prominent philosophical theories of narrative identity – exemplified by the approach by Marya Schechtman. According to these theories, our practical identities are constituted by our first-person accounts of who we are. Our self-narratives comprise multifaceted, diachronic characterisations of who we are as whole individuals, agents, and moral beings. We do not simply ‘have’ our identity narratives. We construct and interpret them, and they play a key role in supporting valuable experiential, evaluative aspects of a practically engaged and flourishing life. Our self-narratives are only capable of fulfilling these practical roles to the extent that they provide relatively intelligible and integrated accounts of our characteristics and experiences – in our own eyes and also in the eyes of those around us. This is, therefore, a crucially normative conception of identity, according to which the attainment of a coherent, inhabitable practical identity is an achievement, albeit a provisional and ever-evolving one.

Despite the tremendous renaissance of comparative constitutional law, the comparative aspect of the enterprise, as a method and a project, remains under-theorized and imprecise. Methodological self-awareness has not been one of the field’s strengths. In comparative constitutional law (and Constitutionalism in Context more generally) the term “comparative” is often used indiscriminately to describe what, in fact, are several different types of scholarship, each with its own meanings, aims and purposes. What is more, various vocational, jurisprudential, academic, and scientific stakeholders involved in practicing the art of constitutional comparison. This chapter will explore the various types, aims and methodologies deployed in exploring constitutional phenomena comparatively across time and space. In so doing, it will identify some gaps in the field’s contemporary methodological matrix and suggest ways in which these deficiencies may be addressed and overcome.

This chapter begins with a real-life example that sets the scene for the core question engaged in this book: what is the substantive content of the obligations corporations have in relation to fundamental rights? The goal of the book is to develop a general legal analytical framework to answer this question at an intermediate level of determinacy that can guide decision-making in concrete cases. It also considers the institutional changes required to give effect to the framework and render it meaningful. In so doing, it highlights the union of substance, process and institutional design. The chapter outlines the methodological approach I adopt: it combines international and constitutional law; straddles the boundary between public and private law; engages insights from disciplines such as philosophy, economics and political science; and combines the normative and descriptive. The chapter also provides an outline of the structure of the argument in this book and brief description of what is accomplished in each chapter.

Trish Salah contextualizes the broad post-2010 emergence of transgender fiction in a longer history of earlier trans and queer fiction and theory while arguing that “trans genre writing” has found recent prominence as a new minor literature. Particular challenges have led trans writers to innovate at the levels of language and aesthetics, perspective (collective, but not homogeneous), and genre, among others. Moreover, these works thematize and challenge norms and imperatives of empire, race, history, visibility, and geography.

This chapter offers reflections on the results presented in the previous chapters. One section argues that while it is difficult to prove that teachings contribute to the development of international law, it seems probable that they do, including by influencing the ICJ when it contributes to the development of international law. The next section suggests how the Court's practice may be adjusted in potentially beneficial ways. The arguments are presented, in favour of increased transparency about the application of teachings, increased diversity in what teachings are applied, and increased regulation in how teachings are applied. These arguments must be balanced against significant counterarguments, and this must be done by the individual judge. A third section shows how the Court's practice compares with that of other international courts and tribunals. The Court's majority opinions are most similar to those of the International Tribunal for the Law of the Sea, while its individual opinions sit roughly in the middle of a spectrum between various institutions. The final section has ideas for future research.

Section 5 of Hume’s An Enquiry Concerning the Principles of Morals, “Why Utility Pleases,” is a remarkable text for a variety of reasons. First, there is no directly analogous section in the Treatise, so it raises questions about whether Hume engaged in substantial revision of his previous thought. Second, it offers evidence of a normative moral theory. Third, because Hume discusses the role of utility so favorably, it may suggest a nascent form of utilitarianism. Finally, “Why Utility Pleases” advances some of the few positions that draw criticism from Adam Smith. This chapter addresses each of these features. In response to the first, I argue that there are important differences between the Treatise and Section 5, but none that involve a rejection of the claims of the earlier work. In response to the second, I argue that “Why Utility Pleases” is best interpreted as falling squarely within Hume’s descriptive moral psychology. In response to the third, I argue that the notion of Hume as a utilitarian is dubious. Finally, in response to the fourth, I suggest that the disagreement between Smith and Hume, though nuanced and interesting, is not deep.

At this moment, the literature and discourse on command responsibility is incredibly convoluted and controverted. I will show how these knots were produced by an underlying inadvertent contradiction with the culpability principle. The contradiction was created by surface-level doctrinal reasoning that did not adequately consider the deontic dimension. The subsequent twists and turns to deny, obscure, evade, or resolve this contradiction have led to increasingly complex and obscure claims about command responsibility.

The inquiry demonstrates the problems of inadequate attention to deontic limits. It also shows how deontic analysis can help us better understand the trajectory of the command responsibility debate. We can see old controversies in a new light and generate new prescriptions. I argue that command responsibility can be restored to its simple and elegant origins if it is recognized as a mode of accessory liability. As a result, the causal contribution requirement should be respected. This solution is not perfect, but I will show that this is the best reconciliation of the text, precedents, and the culpability principle. By resolving the core contradiction, the myriad complications and mystical evasions about command responsibility become unnecessary.

In this chapter, I address important preliminary challenges to any discussion of deontic principles in ICL. Thoughtful scholars have raised concerns that familiar liberal principles may be entirely out of place in ICL. I will argue: (1) For any system that chooses to punish individuals, deontic principles do matter, and thus they should constrain ICL. (2) This does not necessarily mean replicating formulations of fundamental principles familiar from national systems; instead we can return to our underlying deontic commitments and see what they entail in these new contexts. (3) We can learn from common critiques of liberal accounts, to build a sensitive, humanistic account of deontic principles.

In response to various criticisms of criminal justice and liberal principles, I emphasize the ‘humanity’ of criminal justice. Criminal justice and its restraining principles are sometimes portrayed as abstract, metaphysical, retributive, vengeful, Western, or ideologically unmoored from experience. But criminal law serves pro-social aims. Its constraints are rooted in compassion, empathy, and regard for humanity. An intelligent liberal account considers all facets of human experience, including social context, social roles, and collective endeavours. Principles reflect broadly shared human concerns, and can be refined through human conversation.

In this chapter, I examine a different controversy in command responsibility: the mental element. Scholars and jurists have raised powerful, principled objections to the modified fault standards in command responsibility, such as the ‘should have known’ standard in the ICC Statute. They are absolutely right to raise such questions, because a negligence standard in a mode of accessory liability seems to chafe against our normal analytical and normative constructs. However, I advance, in three steps, a culpability-based justification for command responsibility. I argue that the intuition of justice underlying the doctrine is sound.

I argue that the ‘should have known’ standard in the ICC Statute, rather than being shunned, should be embraced. I argue that the ‘should have known’ standard actually maps better onto personal culpability than the rival formulations developed by the Tribunals.

This chapter gives an example of the two-way conversation and illumination in the encounter between criminal law theory and ICL. This is an instance where ICL, by highlighting special contexts and problems, can lead us to reconsider some of our initial reactions and conclusions. Command responsibility delineates a set of circumstances where our normal reflexes about the lesser culpability of criminal negligence may be unsound.

Public administration in Norway and in many other countries has used computers for more than fifty-five years. It is normal and necessary. Of course, it is possible to imagine many more office buildings where thousands of men and women would do all the detailed processing of individual cases that are processed today by computers, but this alternative is not very realistic: Modern taxation systems, national social insurance schemes and management of many other welfare programs would not be feasible without the use of computers and the algorithmic law that is integrated in the software. Thus, the question is not if public administration should apply computer technology, but how this should be done. This chapter deals with important how-to questions.

Summarising the main arguments of the book, the conclusions also put into relief the importance of spatial-conceptual approach to the study of international law. If from the Hobbesian perspective international order is not really law, Leibnizian concept of normativity grounded in the cognitive dimension underpined by the relational space as a logical grounding pushes international scholars to think the regulation at the global level in more divrse ways. However, the cognitive dimension of normativity remains yet to be fully explored.

This chapter presents Sustainability Solution Spaces for Decision-Making (SSP) as an integrative method for assessing sustainability. The SSP represents the room to manoeuvre in the system at hand so that it can develop sustainably. The approach fulfils (1) systemic criteria; (2) normative criteria; and (3) procedural criteria. It provides a consistent set of targets and considers the systemic relations among the indicators representing the city-region. This gives the decision-makers concise guidelines for sustainable decisions and makes them aware of the associated trade-offs. SSP can be pursued following a participatory and an expert approach. Whereas the expert approach requires high quality of data, preferably either over time or over a large number of cities, the participatory approach is more flexible and can deal with qualitative data. That is, the expert approach is appropriate for comparing large sets of cities with each other, clustering and providing benchmarks for specific city types, and delivering general indications where policy development is required. The participatory approach might be particularly useful for assessing the impact of a specific project or analysing a specific sector, such as mobility or housing, in depth.

The Integrative Concept of Sustainable Development (ICoS) was developed through an intensive process in order to operationalise the guiding rules of sustainable development in an interdisciplinary team. Through its three general sustainability goals and 25 sustainability rules, ICoS establishes that indicators are part of a step-wise, systematic, and consistent construction that links theoretical abstraction to deliberative action: the political and societal practice of sustainable development (Barton & Kopfmüller, 2012, p. 84). The application of the concept is presented through two examples: a completed project in Santiago de Chile, and a project currently being developed, which will enable the calculation of regional sustainable energy balances.

This chapter presents a comparative analysis of four Participatory Multi-Criteria Approaches (PMCAs) usually applied in sustainability assessments (SMCE, MCM, 3-SPM, and INTEGRAAL). Such approaches are presented in detail and subsequently compared to each other according to three elementary yet crucial questions: who assesses?; what is assessed?; and how is it assessed? The results outline potential synergies and theoretical incompatibilities between the four approaches. The analysis also supports future PMCA applications when choosing one particular approach according to: key meta-principles (i.e., epistemological stance, methodological emphasis); logistical constraints (e.g., time, budget); local idiosyncrasies (e.g., pertinent geographical scales, power asymmetries); and organisational factors.

Taking up the definition of a model posited in Chapter 1, models can follow different purposes. This chapter introduces nine general purposes: theory development, generalisation, theory testing, understanding (of systems and their dynamics), explanation (of observed phenomena), prediction (of the system dynamics), decision support (for the derivation of ‘good’ policies and strategies), communication (of knowledge and information) and education (of students and young researchers); and two more technical purposes: integration of knowledge and mediation between scales. These eleven purposes are demonstrated using modelling studies from the literature in the disciplines of physics, ecology and economics. Further, a model may be general or specific, and it may be used for positive analysis (‘what is’) or normative analysis (‘what should be’), or a mixture of both.