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Private International Law and Global Governance$
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Horatia Muir Watt and Diego P. Fernández Arroyo

Print publication date: 2014

Print ISBN-13: 9780198727620

Published to Oxford Scholarship Online: March 2015

DOI: 10.1093/acprof:oso/9780198727620.001.0001

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Rules of Recognition

Rules of Recognition

A Legal Constructivist Approach to Transnational Private Regulation

10 Rules of Recognition
Private International Law and Global Governance

Harm Schepel

Oxford University Press

This chapter advances a legal constructivist approach to private transnational governance. Analytically, the argument is that the law/non-law distinction is itself a legal operation, which does not necessarily unfold according to the traditional constitutional hierarchical criteria of authority and validity. Normatively, the argument is that legitimate global governance is largely a function of the interaction of normative orders. If there is any merit to this approach, it comes from three main features: first, it recognizes that ‘lawmaking’ is not limited to the public institutions recognized as such by the historical frame of law and state. Second, it takes the concept of ‘law’ seriously and does not reduce it to mere fact devoid of all normative aspiration. Third, it should manage to overcome the painful divorce between ‘the question of law’ and ‘the question of legitimacy’.

Keywords:   legal pluralism, private governance, health and safety standards, societal constitutionalism, transnational regulation, embeddedness

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