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This chapter develops the book’s conceptual and terminological basis. It proposes to re-discover supranationality as a relative and general concept which can serve as a valuable descriptive-analytical tool for the study of international regimes and law beyond the state. Supranationality is defined by adopting a functional perspective: The chapter argues that elements usually denoted supranational seek a form of legal integration, either horizontally, through international institutions bypassing states in their ability to determine the legal position of individuals, or vertically, in that law beyond the state is entrenched in the domestic legal order in a way that allows individuals to rely on it directly. As a thin conceptual theory renouncing any broader normative vision, the proposed framework may complement and inform more fully-fledged theories such as legal pluralism, global constitutionalism or federalism. The chapter also explores the nexus between the notions of supranationality and community. Drawing on constructivist insights, it demonstrates that the constitution of a (legal) community in the sense of an intersubjective sense of belonging can be regarded both the (social) precondition and product of legal integration.
Chapter 1 introduces the study with a vignette of a critical case from Yungay, Santiago. There, a group of residents with no prior background in activism, in a city with unsympathetic political institutions and leadership, organized and achieved remarkable and sustained policy impact and stopped planned redevelopment in their neighborhood. The chapter then presents the key questions: How have citizens adapted resistance against urban redevelopment to profound political, social, and technological changes? And under what conditions do they reach their goals? The chapter justifies the focus on struggles against urban redevelopment: Urban redevelopment plays a critical role in contemporary capitalism and has important social and political implications. Investigating the struggles against redevelopment, in turn, can lead to broader insights about contentious politics. Finally, the chapter presents an overview of argument and a plan for the rest of the book.
I use a puzzling episode of judicial interpretation from South Africa to motivate the theoretical question about why judges sometimes alter their commitments to some legal interpretations but not others. I examine existing scholarship, which tends to portray judges as behaving in four distinct ways when engaged in legal interpretation: as guardians; as principled interpreters; as regime partners; or as strategic interpretors or deliberators. I argue that each of these portrayals falls short in explaining judges' shifting commitments to legal interpretation. Instead, I argue that judges are best understood as behaving as deliberative partners by combining key theoretical aspects of existing work into a novel theoretical position. I then outline the unique observable implications of each position and propose a fair test that examines judicial behavior in response to political parties' shifting stances on equality rights during key moments in Indian, South African, and American history.
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