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Transnational Legal Theory最新文献

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Private entities shaping community interests: (re)imagining the ‘publicness’ of public international law as an epistemic tool 塑造社区利益的私人实体:(重新)将国际公法的“公共性”想象为一种认知工具
Transnational Legal Theory Pub Date : 2023-07-11 DOI: 10.1080/20414005.2023.2232599
Letizia Lo Giacco
{"title":"Private entities shaping community interests: (re)imagining the ‘publicness’ of public international law as an epistemic tool","authors":"Letizia Lo Giacco","doi":"10.1080/20414005.2023.2232599","DOIUrl":"https://doi.org/10.1080/20414005.2023.2232599","url":null,"abstract":"ABSTRACT While the very existence of community interests has arguably motivated states to engage in multilateral treaty-making, create international organisations and criminalise conduct internationally, among other things, the foundational ‘publicness’ of public international law appears largely under-explored among public international lawyers. A turn to publicness is rendered all the more necessary by the blurring divide between public/private, in the face of globalisation processes that have been affecting the way in which public interests, goods and functions traditionally thought to be within the exclusive remit of state sovereignty are defined, negotiated and acted upon by private entities. Looking at ‘publicness’ as an epistemic tool, this contribution critically revisits how private actors engaging with areas of common interest have actually shaped the contours of ‘public’ in a public international law context. It suggests to (re)imagine the ‘publicness’ in order to be able to guide practices instead of being forged by them.","PeriodicalId":37728,"journal":{"name":"Transnational Legal Theory","volume":"1 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-07-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41524460","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 0
What does finance democracy look like?: thinking beyond fintech and regtech 金融民主是什么样子的超越金融科技和regtech的思考
Transnational Legal Theory Pub Date : 2023-06-07 DOI: 10.1080/20414005.2023.2204777
Eric White
{"title":"What does finance democracy look like?: thinking beyond fintech and regtech","authors":"Eric White","doi":"10.1080/20414005.2023.2204777","DOIUrl":"https://doi.org/10.1080/20414005.2023.2204777","url":null,"abstract":"ABSTRACT\u0000 The paper addresses the purported ‘democratisation’ of finance as it has been heralded among many proponents of decentralized finance (‘DeFi’). It places the emergence of decentralised platform financing in the context of a continuing neo-liberalization of public services to interrogate the democratisation claim. Following a brief presentation of the guiding principles for both Canadian and U.S. securities regulation law, the paper explains the fast evolution of DeFi and argues that its driving impetus is the inclusion of individuals into a financial system that features little centralisation and even less regulatory oversight. While access to online investment forms is broadened, it remains questionable to which degree such a system can be an instrument in the pursuit of long-term oriented public goods goals.","PeriodicalId":37728,"journal":{"name":"Transnational Legal Theory","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-06-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42365364","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 0
Dworkin’s interpretivism, legal monism, and the threat of ‘authoritarian’ international law 德沃金的解释主义、法律一元论与“威权主义”国际法的威胁
Transnational Legal Theory Pub Date : 2023-04-03 DOI: 10.1080/20414005.2023.2232598
Thomas Bustamante
{"title":"Dworkin’s interpretivism, legal monism, and the threat of ‘authoritarian’ international law","authors":"Thomas Bustamante","doi":"10.1080/20414005.2023.2232598","DOIUrl":"https://doi.org/10.1080/20414005.2023.2232598","url":null,"abstract":"ABSTRACT Dworkin’s philosophy of international law is distinct from other theories because it rejects five separations: a separability between international law and national legal orders, a separability between law and morality, a separability in the sources of political legitimacy of a state’s government and of international law, a separability between the concepts of law and the rule of law, and a separability between theory and practice. This paper argues that the rejection of these assumptions makes Dworkin’s legal monism well equipped to respond to a recent threat to the authority of international law, namely the practice described by Ginsburg as an ‘authoritarian use’ of international law. ‘Authoritarian’ international law disavowals some inferentially articulated commitments that are an important aspect of the rationality of law. Dworkin’s monism enhances the intellectual attitude required by these commitments and resists some fragmentations that provide occasions and opportunities for authoritarian international law.","PeriodicalId":37728,"journal":{"name":"Transnational Legal Theory","volume":"14 1","pages":"117 - 156"},"PeriodicalIF":0.0,"publicationDate":"2023-04-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42083690","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 0
A political theory of state equality 国家平等的政治理论
Transnational Legal Theory Pub Date : 2023-04-03 DOI: 10.1080/20414005.2023.2232597
A. Green
{"title":"A political theory of state equality","authors":"A. Green","doi":"10.1080/20414005.2023.2232597","DOIUrl":"https://doi.org/10.1080/20414005.2023.2232597","url":null,"abstract":"ABSTRACT This paper advances a novel argument for why states are juridically equal. It embraces a fundamentally political understanding of legal statehood, whereby states provide essential ‘focuses’ and ‘forums’ through which politics can take place. On this basis, it contends that state equality cannot be properly grasped until it is acknowledged that states constitute ‘political communities’ and merit a certain degree of respect as such. It is this respect that grounds juridical equality. Political communities, in the relevant sense, need not be either democratically legitimate or particularly just. Ethically valuable politics typically operates as a response to injustice and illegitimacy. However, the normative core of state equality lies in the structural support that states provide for this distinct form of human activity.","PeriodicalId":37728,"journal":{"name":"Transnational Legal Theory","volume":"14 1","pages":"178 - 210"},"PeriodicalIF":0.0,"publicationDate":"2023-04-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46004263","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 0
Exhausting domestic remedies or exhausting the rule of law? Revisiting the normative basis of procedural subsidiarity in the European Human Rights System 耗尽国内救济还是耗尽法治?重新审视欧洲人权体系中程序辅助性的规范基础
Transnational Legal Theory Pub Date : 2023-04-03 DOI: 10.1080/20414005.2023.2232601
A. Zysset, B. Çalı
{"title":"Exhausting domestic remedies or exhausting the rule of law? Revisiting the normative basis of procedural subsidiarity in the European Human Rights System","authors":"A. Zysset, B. Çalı","doi":"10.1080/20414005.2023.2232601","DOIUrl":"https://doi.org/10.1080/20414005.2023.2232601","url":null,"abstract":"ABSTRACT In recent years, the case law of the European Court of Human Rights has seen a new normative turn in grounding subsidiarity when interpreting the substantive rights in the European Convention on Human Rights. The Court has placed emphasis on subsidiarity considerations when the respondent state can demonstrate the democratic and rule of law pedigree of its rights-interfering actions. The Court’s interpretation of the procedural rule of the exhaustion of domestic remedies has not caught up with this new normative turn. This article argues for the ‘normative realignment’ thesis. Grounds for substantive subsidiarity are normatively defensible on democracy and rule of law considerations, and grounds for procedural subsidiarity can and should be more closely aligned with the same considerations.","PeriodicalId":37728,"journal":{"name":"Transnational Legal Theory","volume":"14 1","pages":"157 - 177"},"PeriodicalIF":0.0,"publicationDate":"2023-04-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49145984","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 0
What might a human-rights-harmonious international regime on the use of force look like? 在使用武力方面，一个人权和谐的国际制度会是什么样子?
Transnational Legal Theory Pub Date : 2023-04-03 DOI: 10.1080/20414005.2023.2232600
Frédéric Mégret
{"title":"What might a human-rights-harmonious international regime on the use of force look like?","authors":"Frédéric Mégret","doi":"10.1080/20414005.2023.2232600","DOIUrl":"https://doi.org/10.1080/20414005.2023.2232600","url":null,"abstract":"ABSTRACT The international law on the use of force has emerged as a distinct yet central pillar of international law. Although it may be intuitively understood to be connected to the promotion of human rights, it cannot be said to have emerged exclusively or even primarily as a result of human rights concerns. The rise of international human rights law has tended, coming late to that debate as it were, to neglect questions of war, deferring to specialised regimes on a largely functionalist basis. This article asks instead how one might reimagine the international law of the use of force if one takes the axiological primacy of human rights in international law seriously. This will involve a critique of the emphasis on the mere humanitarian regulation of war and a human-rights rereading of both the jus ad bellum and the jus in bello traditions.","PeriodicalId":37728,"journal":{"name":"Transnational Legal Theory","volume":"14 1","pages":"211 - 241"},"PeriodicalIF":0.0,"publicationDate":"2023-04-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44123490","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 0
Public and private power in social media governance: multistakeholderism, the rule of law and democratic accountability 社交媒体治理中的公共和私人权力：多方利益相关者主义、法治和民主问责制
Transnational Legal Theory Pub Date : 2023-01-02 DOI: 10.1080/20414005.2023.2203538
Rachel Griffin
{"title":"Public and private power in social media governance: multistakeholderism, the rule of law and democratic accountability","authors":"Rachel Griffin","doi":"10.1080/20414005.2023.2203538","DOIUrl":"https://doi.org/10.1080/20414005.2023.2203538","url":null,"abstract":"ABSTRACT Due to their political power, the largest social media platforms are often compared to governments. Consequently, their unaccountability to the public has prompted widespread concern. This article examines two prominent responses in academic and policy debates, here characterised as the multistakeholderist and rule of law responses. The former aims to increase civil society influence in platform governance. The latter argues platforms should follow similar rule of law principles to public institutions. Neither response offers meaningful democratic accountability. Their ‘tech exceptionalist’ view of platforms as state-like entities focuses on regulating existing concentrations of power instead of structural reforms, and they largely overlook the role of state regulation in constituting corporate power. Neither considers substantially reforming today’s privatised, highly-concentrated social media market. Consequently, they at best offer partial and unequal accountability. Instead, the article advocates reforms guided by an ideal of economic democracy, aiming to redistribute ownership and control of digital infrastructure.","PeriodicalId":37728,"journal":{"name":"Transnational Legal Theory","volume":"14 1","pages":"46 - 89"},"PeriodicalIF":0.0,"publicationDate":"2023-01-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48282770","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 2
Law as critical cartography: global value chains, borders, and the spatialisation of vulnerability 法律作为关键制图：全球价值链、边界和脆弱性的空间化
Transnational Legal Theory Pub Date : 2023-01-02 DOI: 10.1080/20414005.2023.2206760
Peer C. Zumbansen
{"title":"Law as critical cartography: global value chains, borders, and the spatialisation of vulnerability","authors":"Peer C. Zumbansen","doi":"10.1080/20414005.2023.2206760","DOIUrl":"https://doi.org/10.1080/20414005.2023.2206760","url":null,"abstract":"ABSTRACT How can law(yers) grasp spatialized regimes such as global value chains, surveillance infrastructures or platform-based information exchanges? How effective is ‘jurisdiction’ in capturing the border-crossing materiality which defines these expansive, socio-material regimes of power? This article suggests that accounts according to which the ‘transnationalization’ of legal orders is the most recent stage of ‘state transformation, are myopic, largely Western ones. Such narratives are inherently orientalizing and racializing as they invisibilize the dependency relationships between the Global North and the Global South. The dominant ‘globalization’ story that lawyers have been telling themselves paints the state as a victim – first of ‘privatization’ (and neoliberalism), then of financialization and globalization (and, of course ‘terrorism’). A more adequate map highlights the ‘upstairs-downstairs’ dynamic of subjugation and exploitation of the South by the North, a dynamic of which these regimes are a further manifestation.","PeriodicalId":37728,"journal":{"name":"Transnational Legal Theory","volume":"14 1","pages":"1 - 45"},"PeriodicalIF":0.0,"publicationDate":"2023-01-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44149194","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 1
Perimeters of possibility: legal imagination and structural indeterminacy in international legal thought 可能性的边界:国际法律思想中的法律想象与结构不确定性
Transnational Legal Theory Pub Date : 2023-01-02 DOI: 10.1080/20414005.2023.2203540
A. Leiter
{"title":"Perimeters of possibility: legal imagination and structural indeterminacy in international legal thought","authors":"A. Leiter","doi":"10.1080/20414005.2023.2203540","DOIUrl":"https://doi.org/10.1080/20414005.2023.2203540","url":null,"abstract":"ABSTRACT Ntina Tzouvala’s book Capitalism as Civilisation offers a critical analysis of the ‘standard of civilisation’ in international law. By combining historically situated Marxist analysis with structural linguistics the book makes a powerful contribution to the landscape of legal theory. This essay engages with Tzouvala’s methodological intervention and her proposition of a materialist theory of international law. While concurring with Tzouvala’s starting point that ‘critiquing law while avoiding its reification is one of the biggest challenges for materialist legal theory’, the essay questions Tzouvala’s insistence on linguistic structuralism as yet another form of reification through dialectic predetermination. It is this assumed predetermination, as a habit of thought of dialectical thinking, that makes it difficult to relate affirmatively to progressive practices in international law. To develop an alternative understanding of international legal practice that defies the perimeters of possibility of linguistic structuralism, this essay draws on scholarship loosely related to new materialism.","PeriodicalId":37728,"journal":{"name":"Transnational Legal Theory","volume":"14 1","pages":"100 - 112"},"PeriodicalIF":0.0,"publicationDate":"2023-01-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47625789","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 0
The standard of civilisation: between legal indeterminacy and political economy 文明的标准:介于法律的不确定性和政治经济之间
Transnational Legal Theory Pub Date : 2023-01-02 DOI: 10.1080/20414005.2023.2203539
Ioannis Kampourakis
{"title":"The standard of civilisation: between legal indeterminacy and political economy","authors":"Ioannis Kampourakis","doi":"10.1080/20414005.2023.2203539","DOIUrl":"https://doi.org/10.1080/20414005.2023.2203539","url":null,"abstract":"Capitalism as Civilisation: A History of International Law articulates the kind of international legal history that reflects the field’s co-constitutive relation to global capitalism. This is done through the lens of the standard of ‘civilisation’ – a concept that Ntina Tzouvala shows to be both flexible and plastic and yet consistent in mediating the needs of capitalist expansion. A key insight of Capitalism as Civilisation is that ‘civilisation’ has functioned as an argumentative pattern that has been decisive for the allocation of rights and duties among different communities. Tzouvala illustrates how the adaptability and non-static nature of ‘civilisation’, and more precisely its oscillation between a ‘logic of improvement’ and a ‘logic of biology’, have contributed to its longevity and its continuing relevance for contemporary modes of capitalist accumulation. In brief, the ‘logic of improvement’ has conveyed a promise of equal participation in international law, insofar as non-Western communities would be willing to adopt the institutions and structures of Western capitalist modernity. At the same time, the ‘logic of biology’ consistently denied that very promise on account of inherent – and thus insurmountable – difference. As I will attempt to show in this review, Tzouvala uses these findings to make a broader intervention on the relationship of international law to global political economy, drawing the contours of a materialist legal theory.","PeriodicalId":37728,"journal":{"name":"Transnational Legal Theory","volume":"14 1","pages":"90 - 99"},"PeriodicalIF":0.0,"publicationDate":"2023-01-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41539221","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 0
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