Legal Positivism in a Global and Transnational Age by Luca Siliquini-Cinelli

Author:Luca Siliquini-Cinelli
Language: eng
Format: epub
ISBN: 9783030247058
Publisher: Springer International Publishing

2 The Social Positivisation of Human Rights

Before addressing the problems alluded to in the introduction, let me see if I can first adequately present Teubner’s rich and complex theory of the social positivisation of human rights. It is a theory that is rooted in the concept of “reflexive law” developed in the early 1980s in response to a crisis of the welfare state and the apparent limits of a centralised top-down forms of law and governance. Under these conditions, many legal scholars turned their attention to divining a more fluid and rarefied concept of law, a medium that was able to seep into and sensitively regulate the various corners of a highly fragmented globalised society. To this end, Teubner developed a concept of “reflexive law” that drew on Nonet and Selznick’s “responsive law” and Habermas’ “discursive rationality.”17 Such a concept of law was called “reflexive” because it was seen as being able to take up the many different rationalities of a functionally differentiated society, and to reflect them in a legal code.18

Later, this concept of reflexive law was developed at the global level. Reflexive law came to be seen as a potential solution to the problem of the tension between the increasing formulation of norms at the global level and the inadequacy of traditional politico-legal frameworks of the nation-state. Teubner pointed to the development of reflexive law in the “norm hungry” self-contained regimes that had established themselves at the global level.19 It was argued that, in much the same way that Hart imagined juridification through the establishment of “rules about rules,”20 self-contained regimes of globalised society could “juridify” themselves through reliance on their own “instruments of second order observation.”21 The primary example of this was the establishment of a lex mercatoria in relation to the global trade regime,22 but it has also been extended to include other regimes, such as a lex sportiva emerging from the reflexive decision-making procedures of an international sports federation, a lex digitalis in relation to the communications technology field,23 or a lex constructionis in relation to the global construction industry.24

In a further step, it was argued that the norms that were positivised within the various self-juridifying regimes of globalised society were increasingly coming to reflect the quality of traditional constitutional norms. This abstracted constitutionalisation out beyond its traditional basis in the institutional framework of the nation-state. For Teubner and others, a “societal constitutionalism” takes place on a more elementary social basis, when the norms adopted in the self-juridifying regime are of a sufficiently “constitutive” and “limitative” quality.25 Such norms will be “constitutive” when they help secure the autonomy of a given social sphere at the global level, which in turn promotes inclusion within the social sphere. They will be “limitative” when they prevent the expansionist tendencies of the differentiated areas of globalised society from “tipping into destructiveness.”26 (This will prove important to the social positivisation of human rights). According to Teubner, the trend towards societal constitutionalism at the global level has been triggered by increasing

Download

Copyright Disclaimer:
This site does not store any files on its server. We only index and link to content provided by other sites. Please contact the content providers to delete copyright contents if any and email us, we'll remove relevant links or contents immediately.