Jurisprudence in a Globalized World
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Jurisprudence in a Globalized World

Edited by Jorge L. Fabra-Zamora

Leading legal scholars and philosophers provide a breadth of perspectives and inspire stimulating debate around the transformations of jurisprudence in a globalized world. This innovative book considers modifications to jurisprudence’s methodological approaches driven by globalization, the concepts and theoretical tools required to account for putative new forms of legal phenomena, and normative issues relating to the legitimacy and democratic character of these legal orders.
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Chapter 12: Neither democratic nor constitutional but legitimate: fragmentation and the legitimation of international law

Kevin W. Gray

Abstract

In this chapter, I develop an alternative framework for a critical theory of international law. Critical theorists have previously attempted to develop a theory of international law which began from the concern that the development of international law has led to the fragmentation of the international legal order. Inspired by the Habermasian view that legitimate law emerged, as a historical phenomenon, alongside the rationalization of the state, critical theorists have been reluctant to theorize the conditions of legitimacy of a global order where constitutionalization and democracy do not obtain. They have instead argued for constitutionalization as a means of assuring international law’s legitimacy. I argue that a critical theory of international law should not depend on the existence of a constitutional order, but could instead begin from a fragmented legal order and involve means of legitimation separate from those normally invoked to explain the legitimacy of the nation-state.

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