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Global legal pluralism as fact and norm

Published online by Cambridge University Press:  28 June 2013

TURKULER ISIKSEL*
Affiliation:
Department of Political Science, Columbia University, International Affairs Building, 420 W. 118th St, New York, NY 10027, USA

Abstract

This article interrogates the intellectual foundations of global legal pluralism as a descriptive and normative position, and assesses its core claims with reference to the changing status of individuals in the postnational realm. In order to uncover the normative core of the pluralist position, the article turns to the rich tradition of value pluralism in political philosophy, particularly as articulated by Isaiah Berlin. It argues that as a normative position, pluralism – whether applied to the abstract sphere of values or the concrete realm of legal regimes – is normatively underdetermined, offering too little guidance as to how the conflicts endemic to a pluralistic world ought to be resolved. Unless it is supplemented by other, more substantive principles of political legitimacy such as democracy, freedom, equality, or justice, the principle of pluralism applied to the global legal realm is poised to reproduce, even exacerbate, existing inequalities of power and resources among those whom it affects.

Type
Research Article
Copyright
Copyright © Cambridge University Press 2013 

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References

1 In describing legal pluralism, Gunther Teubner also uses the metaphor of the Roman god Janus, although the duality emphasized by Teubner is not that between its normative and descriptive facets but legal pluralism’s reference to ‘social norms and legal rules, law and society, formal and informal, rule-oriented and spontaneous’. See Teubner, G, ‘The Two Faces of Janus: Rethinking Legal Pluralism’ (1992) 13 Cardozo Law Review 1443–62, 1443.

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6 Walker, ‘Beyond Boundary Disputes’ (n 2) 376.

7 This list draws on ibid 386.

8 Merry, ‘Legal Pluralism’ (n 5) 870.

9 Ibid, 875; Griffiths, ‘What is Legal Pluralism?’ (n 5) 5.

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17 This anxiety is palpable not only in Hobbes’s Leviathan, famously written against the backdrop of the English civil wars, but also in Bodin’s fastidious attempt to construct a hierarchy among ‘absolute sovereigns,’ ‘subjects of the Pope’, ‘subjects of the [Holy Roman] Emperor’, dukes, counts, ‘highest officers of state, lieutenant-generals of the king, governors, regents, dictators’, tributary princes, and assorted vassals, liege-vassals, and ‘natural subjects’. See Bodin, Six Books on the Commonwealth (n 12) 36–9, 42.

18 Austin, Lectures on Jurisprudence (n 13) section 190, 117.

19 Griffiths, ‘What is Legal Pluralism?’ (n 5) 4–5.

20 Ehrlich, E, ‘The Sociology of Law’ (1922) 36 Harvard Law Review 130–45. Ehrlich defines a ‘Legal Provision’ as ‘an instruction framed in words addressed to courts as to how to decide legal cases (Entscheidungsnorm) or a similar instruction addressed to administrative officials as to how to deal with particular cases (Verwaltungsnorm)’ 132.

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21 Ibid 144.

22 Ibid 136.

23 Ibid 133.

24 SF Moore (1986), cited in Tamanaha, ‘The Folly of the “Social Scientific” Concept of Pluralism’ (n 5) 193.

25 Merry, ‘Legal Pluralism’ (n 5) 870–1, references omitted.

26 Ibid, 870–1, references omitted.

27 Paul Schiff Berman argues that ‘the whole debate about law versus non-law is largely irrelevant in a pluralism context because the key questions involve the normative commitments of a community and the interactions among normative orders that give rise to such commitments, not their formal status’. See Schiff Berman, ‘Global Legal Pluralism’ (n 2) 1177.

28 Teubner, G (ed), Global Law without a State (Dartmouth, Aldershot, 1997) 14.

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29 A contemporary example is lex mercatoria, the transnational body of private commercial law that neither issues from states nor is curated by them.

30 Although the term ‘Westphalian’ serves as shorthand for the classical attributes of modern sovereignty, the historical accuracy of the standard narrative is deeply contested. See especially the essays in Kalmo, H and Skinner, Q (eds), Sovereignty in Fragments. The Past, Present and Future of a Contested Concept (Cambridge University Press, New York, 2010); Krasner, S, Sovereignty: Organized Hypocrisy (Princeton University Press, Princeton, NJ, 1999); Benton, L, A Search for Sovereignty: Law and Geography in European Empires, 1400–1900 (Cambridge University Press, New York, 2010); Anghie, A, ‘Finding the Peripheries: Sovereignty and Colonialism in Nineteenth-Century International Law’ (1999) 40 Harvard International Law Journal 181.

31 See Hans Kelsen’s critical attempt to articulate a sustainable notion of ‘sovereign equality’ in Kelsen, H, ‘The Principle of Sovereign Equality of States as a Basis for International Organization’ (1944) 53 Yale Law Journal 207–20. In this article, written at the heels of the Moscow Declaration of 1943 in which the US, UK, USSR, and China stated their intention to create a ‘general international organization, based on the principle of the sovereign equality of all peace-loving States … for the maintenance of international peace and security’, Kelsen presents a jurisprudential analysis of the idea of a world order founded on sovereign equality, along with his deep misgivings about the stability of such a system. Also see Kelsen, H, ‘Sovereignty and International Law’ (1960) 48 Georgetown Law Journal 627–40.

32 See Jean Cohen’s sophisticated conceptual account and normative defence of an understanding of pluralism ‘which gives both the political values that sovereignty articulates and human rights their due without being “state-centric”’, in ‘Sovereign Equality vs. Imperial Right: The Battle over the “New World Order”’ (2006) 13 Constellations 485–505, 486. Also see Cohen, Globalization and Sovereignty (n 2).

33 See, for instance, contributions in Teubner (ed), Global Law without a State (n 2).

34 For instance, Alter, KJ and Meunier, S, ‘Nested and Overlapping Regimes in the Transatlantic Banana Trade Dispute’ (2006) 13 Journal of European Public Policy 362–82.

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39 Ibid 14. Also see Calliess, G-P and Renner, M, ‘Between Law and Social Norms: The Evolution of Global Governance’ (2009) 22 Ratio Juris 260–80.

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40 As Cohen explains, the layering of the traditional pluralism of sovereign states with non-traditional legal regimes beyond the state complicates traditional schemes of monist and dualist jurisprudence. See Cohen, J, ‘Sovereignty in the Context of Globalization: A Constitutional Pluralist Perspective’ in Besson, S and Tasioulas, J (eds), The Philosophy of International Law (Oxford University Press, Oxford, 2010).

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42 Ibid 391.

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44 Ibid 530.

45 Ibid 530.

46 Krisch, Beyond Constitutionalism (n 2).

47 The literature that focuses on the liminal interactions (or ‘plate tectonics’, to borrow an apposite metaphor from Bjørn Kunoy and Anthony Dawes, ‘Plate Tectonics in Luxembourg: The ménage à trois between EC Law, International Law and the European Convention on Human Rights following the UN Sanctions Cases’ (2009) 46 Common Market Law Review 73–104) between global legal regimes often goes under the title ‘constitutional pluralism’, as distinct from mere legal pluralism. In this article, I consider the latter rather than the former, first because legal pluralism is more capacious than constitutional pluralism insofar as it allows for the study of orders which, while having a fair claim to be ‘law’, might nevertheless be of a qualitatively distinct nature from constitutional law. Second, the more general term allows us to leave open highly contentious questions about whether a given regime qualifies as ‘constitutional’ in any conceptually rigorous sense. Last, as Christina Eckes explains in her contribution to the present volume, instances of constitutional pluralism count as ‘extreme’ cases of legal pluralism, whereas the reverse relation does not obtain. Therefore, the more general term allows us to make finer distinctions as necessary within the context of substantive analysis. Key contributions to the debate on constitutional pluralism include Cohen, Globalization and Sovereignty (n 2); M Kumm, ‘The Cosmopolitan Turn in Constitutionalism: On the Relationship between Constitutionalism in and beyond the State’ in Dunoff and Trachtman, Ruling the World? (n 2); Kumm, M, ‘The Jurisprudence of Constitutional Conflict: Constitutional Supremacy in Europe before and after the Constitutional Treaty’ (2005) 11 European Law Journal 262307; Maduro, ‘Contrapunctual Law’ (n 2); Maduro, ‘Courts and Pluralism’ (n 2); Walker, ‘The Idea of Constitutional Pluralism’ (n 2); Avbelj, M and Komárek, J, ‘Four Visions of Constitutional Pluralism’ (2008) 2 European Journal of Legal Studies 325–70.

48 In Schiff Berman’s words: ‘pluralism offers both a more accurate descriptive account of the world we live in and a potentially useful alternative approach to the design of procedural mechanisms and institutions’. Schiff Berman, ‘Global Legal Pluralism’ (n 2) 1165.

49 Shapiro, I, Democratic Justice (Yale University Press, New Haven, 2001) 23.

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50 It would be impossible to map all of the tributaries to this abundant and fast-moving current in contemporary political theory, but notable interventions include Crowder, G, Liberalism and Value Pluralism (Continuum, New York, 2002); Galston, WA, Liberal Pluralism (Cambridge University Press, New York, 2002); Galston, WA, The Practice of Liberal Pluralism (Cambridge University Press, New York, 2005); Gray, J, Two Faces of Liberalism (Polity Press, Cambridge, 2000) 3468; Kekes, J, The Morality of Pluralism (Princeton University Press, Princeton, NJ, 1993); Kekes, J, Against Liberalism (Cornell University Press, Ithaca, NY, 1997) 159–79; Larmore, C, ‘Pluralism and Reasonable Disagreement’ (1994) 11 Social Philosophy and Policy 6179; Lukes, S, ‘Making Sense of Moral Conflict’ in Moral Conflict and Politics (Oxford, Clarendon Press, 1991); Nagel, T, Mortal Questions (Cambridge University Press, Cambridge, 1979) 128–41; Raz, J, The Morality of Freedom (Clarendon Press, Oxford, 1986); Taylor, C, ‘The Diversity of Goods’ in Sen, A and Williams, B (eds), Utilitarianism and beyond (Cambridge University Press, Cambridge, 1982); Williams, B, Moral Luck (Cambridge University Press, Cambridge, 1981) 7182.

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54 Galston, Liberal Pluralism (n 50) 31.

55 Crowder, Liberalism and Value Pluralism (n 50) 6.

56 Ibid 7.

57 Ibid 3.

58 Ibid 2.

59 Ibid 49.

60 Ibid 2.

John Kekes gives a more expansive definition of incommensurability as ‘the denial of (1) a summum bonum, (2) the fungibility of values, and (3) a canonical principle for ranking values’. Kekes, The Morality of Pluralism (n 50) 56. For other accounts of incommensurability, see Williams, Moral Luck (n 50) 77; Raz, The Morality of Freedom (n 50) ch 13.

61 Crowder, Liberalism and Value Pluralism (n 50) 7.

62 Berlin, ‘The Pursuit of the Ideal’ (n 3) 13.

63 Galston, Liberal Pluralism (n 50) 30.

64 Kekes, The Morality of Pluralism (n 50) 160.

65 Newey, cited in Galston, Liberal Pluralism (n 50) 30.

66 I Berlin, ‘Does Political Theory Still Exist?’, in Berlin, The Proper Study of Mankind (n 3) 66. Berlin’s definition of ‘monism’ is not to be confused with the traditional legal theory sense of that term, which views ‘international and domestic law as together constituting a single legal system,’ as opposed to ‘dualism,’ which views ‘international law as a discrete legal system’ whose domestic effects are conditioned by domestic constitutional law or statute. See Henkin, L, ‘The Constitution and United States Sovereignty: A Century of Chinese Exclusion and Its Progeny’ (1987) 100 Harvard Law Review 853–86, 864.

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67 In Berlin’s words, monism, as ‘the central core of the intellectual tradition in the West has, since Plato (or it may be Pythagoras), rested upon three unquestioned dogmas: (a) that to all genuine questions there is one true answer and one only, all others being deviations from the truth and therefore false …; (b) that the true answers to such questions are in principle knowable; (c) that these true answers cannot clash with one another, for one true proposition cannot be incompatible with another; that together these answers must form a harmonious whole’. See Berlin, ‘The Apotheosis of the Romantic Will’ (n 3) 555. Also see Berlin, ‘The Decline of Utopian Ideas in the West’ in The Crooked Timber of Humanity (n 3) 24.

68 Berlin, ‘Two Concepts of Liberty’ (n 3) 241.

69 See, among others, Berlin, ‘The Decline of Utopian Ideas in the West’ (n 3); ‘The Pursuit of the Ideal’ (n 3); ‘Alleged Relativism in Eighteenth-Century European Thought’ (n 3); ‘Herder and the Enlightenment’ (n 3).

70 Berlin, ‘Two Concepts of Liberty’ (n 3) 241.

71 Krisch, Beyond Constitutionalism (n 2) 79.

72 Wiener, A, ‘Contested Meanings of Norms: A Research Framework’ (2007) 5 Comparative European Politics 117, 12.

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73 Wiener writes that ‘If democratic processes require contestation as a necessary element in order to generate and maintain legitimacy of legal norms’, then ‘contestation needs to be integrated in supranational institutional settings as a common procedure’ ibid, 6.

74 Benhabib, S, Another Cosmopolitanism (Oxford University Press, New York, 2006).

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82 George Kateb argues that ‘Whatever he says, Berlin is a relativist.’ Kateb, G, ‘Can Cultures Be Judged? Two Defenses of Cultural Pluralism in Isaiah Berlin’s Work’ (1999) 66 Social Research 1009–38, 1029. Others are more sanguine about the possibility of steering Berlin’s pluralism away from the relativist precipice. See Gutmann, A, ‘Liberty and Pluralism in Pursuit of the Non-Ideal’ (1999) 66 Social Research 1039–62; Riley, J, ‘Interpreting Berlin’s Liberalism’ (2001) 95 American Political Science Review 283–95.

83 Berlin, ‘The Apotheosis of the Romantic Will’ (n 3) 578.

84 Crowder, Liberalism and Value Pluralism (n 50) 5.

85 Walker, ‘Beyond Boundary Disputes and Basic Grids’ (n 2).

86 Crowder, Liberalism and Value Pluralism (n 50) 2.

87 Ibid 4.

88 Galston, Liberal Pluralism (n 50) 5. According to Galston, pluralism, unlike relativism, admits of a ‘nonarbitrary distinction between good and bad or good and evil’ 30.

89 Hampshire, S, Morality and Conflict (Harvard University Press, Cambridge, MA, 1983) 155.

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91 Ibid.

92 The most well-known account of ‘reasonable pluralism’ is that given by John Rawls, who writes:

A modern democratic society is characterized not simply by a pluralism of comprehensive religious, philosophical, and moral doctrines but by a pluralism of incompatible yet reasonable comprehensive doctrines… Political liberalism assumes that, for political purposes, a plurality of reasonable yet incompatible comprehensive doctrines is the normal result of the exercise of human reason within the framework of the free institutions of a constitutional democratic regime.

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94 Crowder, Liberalism and Value Pluralism (n 50) 57.

95 Berlin, ‘Two Concepts of Liberty’ (n 3).

96 Ibid, 198–211; Macedo, S, Liberal Virtues: Citizenship, Virtue, and Community in Liberal Constitutionalism (Clarendon Press, Oxford, 1990) 234–8.

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99 For a critique of this ‘simple argument from indeterminacy’ see Crowder, Liberalism and Value Pluralism (n 50) 8.

100 Berlin’s fraught attempt to reconcile his defence of negative liberty with pluralism has been a topic of heated debate. See Galston, WA, ‘Value Pluralism and Liberal Political Theory’ (1999) 93 American Political Science Review 769–78; Gray, J, ‘Where Pluralists and Liberals Part Company’ (1998) 6 International Journal of Philosophical Studies 1736; Honneth, A, ‘Negative Freedom and Cultural Belonging: An Unhealthy Tension in the Political Philosophy of Isaiah Berlin’ (1999) 66 Social Research 1063–77; Lukes, S, ‘The Singular and the Plural: On the Distinctive Liberalism of Isaiah Berlin’ (1994) 61 Social Research 687717; Riley, ‘Interpreting Berlin’s Liberalism’ (n 82). See also, Crowder, ‘Pluralism and Liberalism’ (n 51).

101 Gray goes on to argue that a consistent value pluralist must espouse a quite different, chastened sort of liberalism, namely that rooted in the search of a ‘modus vivendi’ rather than ‘a quest for some kind of super-value’. See Gray, J, Two Faces of Liberalism (Polity Press, Cambridge, 2000) 32, 25 respectively.

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103 Crowder, Liberalism and Value Pluralism (n 50) 201.

104 Ibid 199.

105 Ibid 207.

106 Ibid 209.

107 Kekes argues that value conflicts must be alleviated against the background norms and practices of a cohesive community and its traditions: given the pluralist’s rejection of any standard criteria by which to commensurate values, Kekes writes, ‘reasonable conflict-resolution is made possible by the traditions and conceptions of a good life to which people who face the conflicts adhere’. Kekes, Morality of Pluralism (n 50) 76.

108 Crowder, ‘Pluralism and Liberalism’ (n 51) 303. Crowder later retracted his strong claims that ‘value pluralism does not support liberalism’ and that ‘pluralism positively undermines any rational case for liberalism.’ However, he nevertheless remains unpersuaded by Berlin’s argument that pluralism generates support for liberalism, and seeks to bolster it with his virtue-based account of pluralism and liberalism. See Crowder, Liberalism and Value Pluralism (n 50) vii–viii, 185–213.

109 Rawls, Political Liberalism (n 92) 63–4.

110 In his essay ‘What is Enlightenment?’, Kant states this problem in dialectical form, characterizing it as ‘a strange and unexpected pattern in human affairs’ whereby

A high degree of civil freedom seems advantageous to a people’s intellectual freedom, yet it also sets up insuperable barriers to it. Conversely, a lesser degree of civil freedom gives intellectual freedom enough room to expand to its fullest extent. Thus once the germ on which nature has lavished most care—man’s inclination and vocation to think freely—has developed within this hard shell, it gradually reacts upon the mentality of the people, who thus gradually become increasingly able to act freely.

Kant, Political Writings (n 79) 59. Discounting Kant’s eighteenth-century reservations about a permissive regime of ‘intellectual freedom,’ we can nevertheless find the same concern in contemporary debates about limits of liberal toleration. Many commentators argue that liberal institutions require some form of self-defence against the corrosive effects of illiberal doctrines, whether in the form of hate speech legislation (Waldron), ‘gag rules’ (Holmes) or ‘constitutional patriotism’ (Habermas). To be sure, few liberals would advocate a ‘shell’ quite as ‘hard’ as the one Kant endorsed in the context of Frederick the Great’s Prussia!

111 Galston, Liberal Pluralism (n 50) 65.

112 M Koskenniemi, ‘Global Legal Pluralism: Multiple Regimes and Multiple Modes of Thought,’ Keynote Speech, delivered at Harvard University 5 March 2005, 15. On file with the author.

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114 That anarchical tendency is often associated with the English pluralists Harold Laski and GDH Cole. See the works compiled by Hirst, PQ, The Pluralist Theory of the State (Routledge, New York, 1989).

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115 Galston, Liberal Pluralism (n 50) 65.

116 The term is adapted from Melissa Schwartzberg, who develops the ‘logic of democratic autophagy’ as the idea that ‘unfettered democracy will ‘‘consume itself’’’. See Schwartzberg, M, Democracy and Legal Change (Cambridge University Press, Cambridge, 2007) 7.

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117 Galston, Liberal Pluralism (n 50) 66.

118 Ibid 66.

119 Helfer, LR, ‘Constitutional Analogies in the International Legal System’ (2003) 37 Loyola of Los Angeles Law Review 193238, 211.

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120 Ibid 211.

121 The term ‘multiple legalities’ is coined by Christopher Tomlins in the context of early Anglo-European colonial law. Tomlins defines ‘legalities’ as ‘the symbols, signs, and instantiations of formal law’s classificatory impulse, the outcomes of its specialized practices, the products of its institutions. They are the means of effecting law’s discourses, the mechanisms through which law names, blames, and claims.’ Legalities, moreover, ‘are social products, generated in the course of virtually any repetitive practice of wide acceptance within a specific locale’. Compared to the austere, self-validating term ‘law,’ the term ‘legalities’ exposes the contextuality, contingency, and indeterminacy of norms that claim the status of law. See Tomlins, C, ‘The Many Legalities of Colonization: A Manifesto of Destiny for Early American Legal History’ in Tomlins, C and Mann, BH (eds), The Many Legalities of Early America (University of North Carolina Press, Chapel Hill, NC, 2001) 23, 11.

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123 Niklas Luhmann writes that ‘positive law and ideology acquire the function of reducing the complexity of the system and its environment,’ and as such, address the ‘permanent problem’ of stability. See Luhmann, N, The Differentiation of Society, trans Holmes, S and Larmore, C (Columbia University Press, New York, 1982) 93, 96 respectively. Also, Calliess and Renner, ‘Between Law and Social Norms’ (n 39) 267.

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124 For one such response, see Cohen, Globalization and Sovereignty (n 2), Cohen argues in favour of a global system of constitutional pluralism based on the dual principles of sovereign equality and fundamental human rights. She recognizes that in the absence of such an ordering principle, a radically pluralistic world of sovereign states is vulnerable to abuse, not least the abuse of sovereign prerogative for imperialist ends or gross violations of human rights.

125 For a constitutional theory that takes pluralism seriously as a central constitutional value, see Tully, Strange Multiplicity (n 78).

126 The phrase is borrowed from J Resnik, ‘Law’s Migration’ (2006) 115 Yale Law Journal and cited in P Schiff Berman, ‘Global Legal Pluralism’ (n 2) 1210.

127 BDS Santos and Rodríguez-Garavito, CA, ‘Law, Politics, and the Subaltern in Counter-Hegemonic Globalization’ inSantos, and -Garavito, Rodríguez (eds), Law and Globalization from Below: Towards a Cosmopolitan Legality (Cambridge University Press, New York, 2005) 20.

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129 Maduro, We the Court (n 4) 9.

130 Hersch Lauterpacht is one of the earliest and most strident advocates of the idea that international law is coming to recognize ‘the individual as a subject of the law of nations’. See, especially, Lauterpacht, H, International Law and Human Rights (Archon Books, Hamden, CT, 1968 [1950]) 4; also, ch 2.

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134 For instance, multiple arbitral awards by the International Centre for the Settlement of Investment Disputes have elevated the rights of private investors over the policy decisions of the Argentine government in the face of a massive economic crisis and social unrest. See WW Burke-White, ‘The Argentine Financial Crisis: State Liability under BITs and the Legitimacy of the ICSID System’, Research Paper No 08-01 (University of Pennsylvania Institute for Law and Economics, 24 January 2008), available at <http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1088837> accessed 31 March 2013.

135 G Shaffer, ‘Developing Country Use of the WTO Dispute Settlement System: Why It Matters, the Barriers Posed’, Legal Studies Research Paper Series No 08-50 (University of Minnesota Law School, 2009) 171–5.

136 Paulus, AL, ‘From Territoriality to Functionality? Towards a Legal Methodology of Globalization’ in Dekker, IF and Werner, WG (eds), Governance and International Legal Theory (Martinus Nijhoff Publishers, Leiden/Boston, 2004) 75.

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137 Koskenniemi, ‘The Fate of Public International Law’ (n 113) 8.

138 Goldstein, Kahler, Keohane and Slaughter, ‘Introduction: Legalization and World Politics’ (n 131) 387.

139 A far more contentious question concerns assessing the significance of regime pluralism. Sceptics continue to insist that the formal regimes and more diffuse bodies of ‘law-like’ norms highlighted by pluralists hardly amount to a qualitative shift in the nature of the international order, which in their view remains firmly subject to the authority of states and the principle of sovereignty that defines their interactions.

140 Tamanaha, ‘The Folly of the ‘Social Scientific’ Concept of Legal Pluralism’ (n 5) 194.

141 Plato, Republic, trans GMA Grube (Hackett, Indianapolis, 1992) 338c.

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