11 November 2011, 4.30pm

Panel III: The Politics of Legal Pluralism and the Role of Experts

Introduction:

Gunther Hellmann

Theories of modern legal pluralism are variants of two discourses which have begun decades ago. The first is legal pluralism within a state. It dates back to the origins of sociology of law which lie in Eugen Ehrlich’s observations on the normative universe of the Bukowina and in anthropological enquiries of the law of colonized peoples. The second paradigm of pluralism is global began after the Second World war with models of transnational trade law. Later, concepts of that kind were projected to other ages and areas, mostly taking the 19th century as a starting point. The two lectures will deal with domestic and global pluralism separately. In both, specialized knowledge of particular normative environments plays a decisive role.

Gunther Hellmann is Professor of Political Science at Goethe-University, Frankfurt am Main and Adjunct Professor at the Bologna Center of the School of Advanced International Studies, Johns Hopkins University. He is a Principal Investigator and Member of the Board of Directors of the Frankfurt Cluster of Excellence “Formation of Normative Orders“. His research interests are in the fields of international relations theory, international security, and the theory of foreign policy in general and German foreign policy in particular. His recent publications include „International Relations as a Field of Studies“, in: Bertrand Badie, Dirk Berg-Schlosser and Leonardo Morlino (Eds.): International Encyclopedia of Political Science, London: Sage Publication 2011; Ed. „The Forum: Pragmatism
and International Relations“, International Studies Review 11:3 (2009), 638-662; Ed. „Special Section“ on „IR Theory and (German) Foreign Policy“, Journal of International Relations and Development 12:3 (2009); „Inevitable Decline versus Predestined Stability: Disciplinary Explanations of the Evolving Transatlantic Order“, in: Anderson, Jeffrey/Ikenberry G. John/Risse, Thomas (Eds.), The End of the West? Crisis and Chance in the Atlantic Order, Ithaca: Cornell University Press 2008, 28-52; Ed., De-Europeanization by Default. Germany´s EU-Policy in Defence and Asylum, Houndmills, Basingstoke: Palgrave MacMillan 2006.

Lecture I:

“The Politics and Risks of the New Legal Pluralism”

Jean Cohen

The discourse of legal pluralism is becoming ubiquitous. Not only has it been revived with respect to new quasi- federal regional political formations like the European Union, it is also being invoked to account for transformed relations among legal orders created by the morphing of international organizations into global governance institutions. Much ink has been spilled over whether a constitutionalist or pluralist discourse best suits these transformations and whether the black box of state sovereignty has been so penetrated by external, supranational jurisdictions or international regimes, (humanitarian and human rights law), that the very concept of sovereignty has become an anachronism. Even more striking, the discourse of legal pluralism has begun to emerge ‘from below” in the context of new forms of religious pluralism and public religion in ways that pose a challenge from within to internal “domestic” state sovereignty. Indeed it has now arisen in the context of long consolidated western, constitutional-democratic states. Here too the relation between constitutionalism and democracy, political equality and socio-cultural plurality, unified legal sovereignty and group “difference” is being put into question by demands for what is called “multicultural jurisdiction”. This paper will focus on the form of legal pluralism that delegates or shares state jurisdictional power with religious authorities particularly in the domain of personal law. I will discuss new uses of this discourse focusing on the US case, although status group legal pluralism has become a contentious issue around the globe. I will address the question of what is the potential impact of status based legal pluralism on citizenship, political equality and sovereignty. It is important to distinguish among types of legal pluralism and I will do so in this paper. I will also examine, whether and in what respects personal status based legal pluralism poses a threat to threat to the achievements of modern democratic constitutionalism, individual human rights and republican political principles.

Jean Cohen (Ph.D., The New School for Social Research, 1979) is the Nell and Herbert M. Singer Professor of Political Thought. She specializes in contemporary political and legal theory, continental political thought, contemporary civilization, critical theory, and international political theory. She works on civil society, sovereignty, human rights, gender, and the law. She is the author of numerous books and articles including Class and Civil Society: The Limits of Marxian Critical Theory (University of Massachusetts Press: 1982); Civil Society and Political Theory (co-authored with Andrew Arato) (MIT Press 1992); Regulating Intimacy: a New Legal Paradigm (Princeton University Press: 2002); and Rethinking Legitimacy and Legality in the Epoch of Globalization (Cambridge University Press, forthcoming 2011). She has published over 50 articles in journals such as Constellations, Ethics and International Affairs, Philosophy and Social Criticism, Social Research, Political Theory, Telos, Thesis 11, and in numerous law reviews in addition to chapters in edited books. Her work is translated into many languages including Chinese, French, German, Italian, Russian, Serbo-Croatian, Spanish, and Swedish. Professor Cohen has been awarded numerous fellowships and honors including the Fulbright Hays Research Fellowship, the Alfred Schutz Memorial Award, NEH summer fellowships, ACLS Travel Grants. She was a Fellow at The Max Planck Institute in Germany and at the Russell Sage Foundation in New York. She has held distinguished Professor posts in Canada (University of Toronto School of Law), France (College de France, Ecole des Hautes Etudes, Sciences Po), Germany (Johann Wolfgang Goethe University), and Sweden (Lund University). She was co-Director for 17 years of the Seminar on Philosophy and the Social Sciences, held yearly at the Inter-University Center of Dubrovnik, Yugoslavia, and since 1993 in Prague, The Czech Republic. Professor Cohen is Associate Editor of Constellations, and Global Constitutionalism. She has served on the board of many journals including Ethics and International Affairs, the Journal of Civil Society, Critical Horizons, The European Journal of Politics, Political Theory, Philosophy and Social Criticism, Thesis 11, Dissent, and Telos.

 

Lecture II:

„Law, Expertise, and the Legitimacy of International Governance“

Jens Steffek

Legal scholars often suggest public and administrative law as a key remedy for the legitimacy problems of international governance. This idea has a long pedigree. Since the late 19th century, academics and activists alike promoted legalization as a way of rationalizing the conduct of states and of taking the malicious ‘politics’ out of international relations. In a modernist fashion, functional international governance was envisaged as a ‘rule of law and expertise’, meant to replace the pushing and shoving of power politics. Such functional governance rests chiefly on what Scharpf has called ‘output legitimacy’ and thus sits uncomfortably with the recent calls for increased democratic input into, and control over, international governance. In this lecture I discuss whether law can be as instrumental in democratizing global governance as it was in de-politicizing it.

Jens Steffek is Professor of Transnational Governance at Technische Universität Darmstadt and Principal Investigator in the Cluster of Excellence “The Formation of Normative Orders”, hosted by the University of Frankfurt/Main. Before coming to Darmstadt he held appointments at the University of Bremen, Jacobs University Bremen and the Robert-Schuman-Centre for Advanced Studies in Florence/Italy. He has published widely on transnational governance, international organizations and the theory of international relations. Jens Steffek is the author of “Embedded Liberalism and Its Critics: Justifying Global Governance in the American Century”, and co-editor of “Civil Society Participation in European and Global Governance: a Cure for the Democratic Deficit?” and “Evaluating Transnational NGOs: Legitimacy, Accountability, Representation”, all published by Palgrave Macmillan.


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