G. Teubner
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引用次数: 78

摘要

有许多不成熟的国际法形式,没有一个是由国家创造的。关于它们,我想提出三个论点:只有法律多元主义理论才能充分解释全球法律,这种理论从殖民社会的法律转向现代民族国家中不同种族、文化和宗教社区的法律。它需要做出另一个转变——从群体转向话语。它应把注意力集中在独立于民族国家法律的各种全球化进程在公民社会的多个部门中产生的新的法律体系上。正在出现的全球(不是国际!)法律本身就是一种法律秩序,不应以国家法律制度的标准来衡量。它并不象通常所理解的那样是一个不发达的法律体系,与国内法相比有某些结构上的缺陷。相反,它作为成熟法律的独特特征将其与民族国家的传统法律区分开来。这些特征可以用世界社会内部的差异来解释。虽然全球法律缺乏全球一级的政治和体制支持,但它与全球化的社会经济进程密切相关。它与国际政治的相对距离并不能保护国际法不被再政治化。相反,将社会和经济交易作为一个全球法律进程进行重建本身就破坏了其非政治性质,并成为其再政治化的基础。然而,这将以新的和意想不到的方式发生。我们可以期待,全球法律不是通过传统的政治机构,而是在法律与高度专业化的话语进行“结构耦合”的各种过程中变得政治化。
本文章由计算机程序翻译,如有差异,请以英文原文为准。
Global Bukowina
There are a number of inchoate forms of global law, none of which are the creations of states. In relation to them I wish to develop three arguments:1. Global law can only be adequately explained by a theory of legal pluralism which turned from the law of colonial societies to the laws of diverse ethnic, cultural and religious communities in modern nation-states. It needs to make another turn - from groups to discourses. It should focus its attention on a new body of law that emerges from various globalization processes in multiple sectors of civil society independently of the laws of the nation states.2. The emerging global (not inter-national!) law is a legal order in its own right which should not be measured against the standards of national legal systems. It is not - as is usually understood - an underdeveloped body of law which has certain structural deficiencies in comparison to national law. Rather, its peculiar characteristics as fully fledged law distinguishes it from the traditional law of the nation states. These characteristics can be explained by differentiation within world society itself. While global law lacks political and institutional support on the global level, it is closely coupled with globalized socio-economic processes.3. Its relative distance from international politics will not protect global law from its re-politicization. On the contrary, the very reconstruction of social and economic (transactions as a global legal process undermines its non-political character and is the basis of its repoliticization. Yet this will occur in new and unexpected ways. We can expect global law to become politicized not via traditional political institutions but within the various processes under which law engages in 'structural coupling' with highly specialized discourses.
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