Three recent examples of the application of transnational legal authority in Africa are examined. They show that what purports to be fixed and authoritative law is frequently quite contingent. Two of the examples are formal court cases, the third is the relationship between donors and receivers in a programme of economic development. The theoretical frameworks employed to address these instances include: (1) treating situational occurrences as diagnostic events; (2) taking a general processual approach to society, treating it as a continuously ongoing entity experiencing dynamic shifts and continuities; and (3) giving weight to the relevant semi-autonomous social fields, i.e. to the common non-governmental social fields which generate and enforce their own rules. These are enforceable norms that are not official laws. In all of these examples events are publicly presented as the application of laws and rules, yet it is obvious that unacknowledged political issues play a major role in the outcome.
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This chapter argues that the range of authority claims now being made to support transnational regulation, and the kinds of legitimacy that these claims attract, cannot be adequately analysed in the terms that jurists usually assume in considering Western state law. A temporary distancing from orthodox juristic concepts is needed: to survey the range of authority claims now made and widely accepted, to consider how these can be compared and assessed, and to avoid rigid preconceptions about their potential legal significance. The chapter claims that Max Weber’s typology of legitimate domination can usefully guide a socio-legal approach that treats authority as a matter of practice and experience. Weber’s concept of charisma offers a partial template for studying kinds of authority that, at present, escape sufficient juristic attention. Juristic engagement with the diversity of forms of transnational authority now recognised in practice must base itself on socio-legal study of these forms and their conditions of existence. Only with the aid of such study can jurists gain perspective on the formidable challenges of negotiating a viable, shifting normative ordering of transnational regulation.
Horatia Muir Watt
The traditional paradigm which frames (international) law’s apprehension of transnational authority leads it to deny legal status to norms that are not state- endorsed or enforced. It explains why the allocatory function of the conflict of laws is not being fulfilled in respect of transnational private authority. Moreover, by disqualifying alternative forms of legitimacy, the methods of this discipline, have worked paradoxically to dis-embed authority in the global economy. This serves as a strong warning signal for the private ‘branch’ of international law, whose recent record of disconnection from the rise of non-state power has left it impotent in both war and crisis. It is argued in this respect that the fundamental difficulty from a global governance perspective is to ensure the re-allocation of responsibility to the sites of non-state authority that still fall outside international law’s empire.
Because the political and economic system has undergone very important transformations, particularly as an effect of globalisation, some authors speak of a crisis of the state and a crisis of the concepts which have been traditionally used by scholars, lawyers or lawmakers, from the origins in the 16th and 17th century to the 20th century to describe, justify or operate the apparatus of the state. In this chapter I focus on the concept of authority. Relying on Weber’s famous definition of the state as a claim for the monopoly of violence and Kelsen’s theory of the identity between law and state, I will try to show that the concept of authority of the state, which is synonymous with sovereignty, is and remains central. This is because the hierarchy of norms provides a specific form of discourse necessary for the exercise and justification of authority in the state and of the state, a discourse that is still relevant for the contemporary state and also for those phenomena that are known as transnational law.
This chapter concentrates on an old legal phenomenon that has recently re-emerged through transnational developments: the overlap between jurisdictions of law-applying bodies established by different legal systems. It analyses it through the prism of a theory on the authority of legal systems: the ‘theory of de facto authority’. After briefly discussing the impact of transnational developments on law and legal theory, this chapter focuses on the issue of overlapping jurisdictions and on key aspects of the ‘theory of de facto authority’ to establish that this theory can account satisfactorily for overlapping jurisdictions, in general, and, more particularly, for their occurrence at a transnational level.
The chapter considers the nature of authorities in the law, and, specifically, the often undervalued yet important role played by informal auctoritas, by contrast with formally binding enactments. It explores the terminological difficulties within modern discourse which make discussion and understanding of such informal authorities difficult. Exemplarily, the status of Roman sources in the ius commune is considered in detail, establishing the informal criteria which determine their authoritative quality – belief in the extraordinary quality of the texts and the jurists’ mutual expectations of applying them. The analysis then proceeds to modern German practice and the enormously significant role played by learned Commentaries in the work of practising lawyers and courts – a phenomenon difficult to explain without recourse to a concept of informal authority. Finally, this understanding is demonstrated in the context of transnational private law by reference to the modern phenomenon of non-legislative codifications, such as the American Restatements, the Principles of European Contract Law and the UNIDROIT Principles of International Commercial Contracts; all those codifications have gained a substantial informal authority as reference texts for international legal discourse.
Maksymilian Del Mar
This chapter offers a means of thinking historically about authority – namely, to examine the history of its images. By ‘images’ here are meant stocks of concrete, leading examples used by theorists when theorising some concept. In the case of authority, this has often included certain hierarchical relations, such as those between father and son, doctor and patient, teacher and student, and officer and soldier. This means of historicising authority is conceived of as part of a broader attempt to focus on the ‘archaeology of disagreement’, i.e. the idea that understanding any concept – including authority – will benefit from exploring how theorists have disagreed about it over time – beginning with disagreements in particular contexts of debate, and then comparing reasons for disagreement across contexts. Comparing different kinds of disagreements may also bring to light unnoticed assumptions made in particular contexts of debate by showing their absence in other contexts. The chapter suggests that the most intractable kinds of disagreements may be disagreements at the level of images. This is considered in the context of a relatively recent debate – namely, that between Martin Loughlin and Neil MacCormick as to the viability of the concept of ‘constitutional pluralism’.
This chapter takes up the methodological challenge of theorizing about authority in circumstances of plurality, and in particular, the relationship between normative and sociological accounts of authority. The chapter makes two core claims. First, that the normative and sociological accounts of authority are both integrated and mutually dependent; and second, that there remains value in a strictly normative conception of legal authority, despite the challenge from many theorists of transnational law who argue for the loosening or relaxation of conceptions of authority to accommodate phenomena such as ‘soft law’, ‘liquid authority,’ or ‘governance’.
This chapter starts from the observation that the growing density and complexity of transnational governance generates regulatory uncertainty which fosters the strategic use of expertise to develop an analytical framework for assessing the role of knowledge and expertise as a basis for authority. To understand the relationship between knowledge, expertise and authority in transnational governance two interrelated types of claim are distinguished. The first involves claims to epistemic authority by which individuals or groups attempt to convert their specific knowledge into expertise as a type of knowledge that stands out from other more commonly shared forms of the latter. The second type refers to actors’ claims to governance authority, in the sense of a privileged voice in transnational rule-making and implementation. Building on this conceptual framework, the chapter investigates how different groups of knowledgeable actors have sought to transform claims to policy-relevant expertise (epistemic authority) into claims for a privileged voice in transnational rule-making and implementation (governance authority) in the fields of transnational copyright and accounting governance.