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Peter J. Spiro

. States are even becoming constrained by international law in their membership practices, something that hardly computes in a Walzerian equation (Spiro 2011 ). “Access to citizenship” points to citizenship for habitual residents as a baseline from which to perfect other rights. It also looks to apply non-discrimination norms to citizenship practice, a radical departure from the historical discretion afforded sovereigns respecting membership. To

in Democratic inclusion
Irritating nation-state constitutionalism
Gunther Teubner

economic studies of an emerging global economic constitution 16 and international law studies on the growing significance of constitutional norms 17 have identified constitutional institutions of astonishing density in the transnational sphere. Today, only very few authors continue to deny that the European Union – despite the failure of the constitutional referendum – has developed a genuine

in Critical theory and legal autopoiesis
Terje Rasmussen

central part in coordinating human rights work in the member states of the European Council. The court began to operate in 1959 and has since become the human rights court with the greatest significance. It has however long been criticised by countries such as the UK, Denmark and Russia for intervening into national democratic decisions. The court principle of subsidiarity (the priority of national human rights interpretations) does not, it is argued, function in practice. The legitimacy of international human rights law and international law in general seems on shaky

in The sociology of sovereignty
Abstract only
Legal pluralism in the world society
Gunther Teubner

the sources of law should direct its attention to new, spontaneous processes of law creation that have emerged in multiple sectors of a global civil society, independently of state-based national and international law. The emerging global (not inter-national!) law is a legal order in its own right that should not be measured by the standards of national legal orders. It is not an

in Critical theory and legal autopoiesis
Rousseau’s and nationalism
Mads Qvortrup

might have envisaged that mechanisms for the protection of humanitarian rights could be enforced, he was unconvinced that public international law could prevent the outbreaks of wars: As for what is called international law [‘droit des gens’] it is certain that, for want of sanction, its laws are nothing but chimeras even weaker than the laws of nature. This latter at least speaks to the heart of individuals, whereas international law, having no other guarantee than their utility to the one who submits to it, are respected only as long as self-interest confirms it

in The political philosophy of Jean-Jacques Rousseau
How social subsystems externalise their foundational paradoxes in the process of constitutionalisation
Gunther Teubner

global rule-making processes taking place on a large scale outside the framework of international law reopen all the problems of the legal paradox which had been encountered in the nation state before they had been successfully transferred to politics. 19 The disorientation of legal doctrine which this entails is so severe that leading jurists describe a ‘ contrat sans loi ’, i.e. a contract without a

in Critical theory and legal autopoiesis
Terje Rasmussen

from liberal, scientific or reasonable points of view. Yet they bring with them a conception of the popular. Seen as an expression of the political, Brexit was a perfectly rational conclusion from the voting majority against changes for the worse that they faced in their lives and towns that the political wisdom in London preferred to ignore. The external side of the concept of sovereignty remains a constitutional problem in Europe today. Can international law based on the doctrine of national sovereignty still be regarded as the foundation for a

in The sociology of sovereignty
Abstract only
Gunther Teubner’s foundational paradox
Andreas Philippopoulos-Mihalopoulos

problematic, but fear not! we have a good theory in hand that may and should make a difference. Teubner's writing pulsates with socially responsible and responsive admonitions, constantly in the toil of building bridges between theories, social systems, layers of constitutions and aspects of international law. The fact that, often, these differences are shown by Teubner himself to be unbridgeable does not deter him from the effort

in Critical theory and legal autopoiesis
David McGrogan

chapter concerning international law and global constitutionalism in general, and human rights’ role in that context in particular. Clearly, the notion that international law is “for” human well-being is so widespread among those engaged in writing and thinking about the subject that the point hardly needs belabouring. And, just as clearly, human rights law as a subspecies of international law is at the heart of international law’s nature in that regard. If international law is “for” human well-being, then international human rights law is one of the, if not the

in Critical theory and human rights
Open Access (free)
Rainer Bauböck

democratically illegitimate about this system. In my essay I suggest that the current principles of international law allow states to broadly ignore the interests of outsiders who are negatively affected by their decisions. Under my interpretation of the all affected interests (AAI) principle, this provides not only cover for possible injustices , which states may or may not commit towards outsiders, but also tarnishes the legitimacy of decisions taken

in Democratic inclusion