Book contents
- Frontmatter
- Dedication
- Epigraph
- Contents
- Preface
- Introduction: images of law
- Meditation 1 Inter-disciplinarity, the epistemological ideal of incontrovertible foundations, and the problem of praxis
- Meditation 2 On the concept of law
- Meditation 3 On constitutions and fragmented orders
- Meditation 4 Of experts, helpers, and enthusiasts
- Meditation 5 The power of metaphors and narratives: systems, teleology, evolution, and the issue of the “global community”
- Meditation 6 Cosmopolitanism, publicity, and the emergence of a “global administrative law”
- Meditation 7 The politics of rights
- Meditation 8 The limits and burdens of rights
- Meditation 9 The bounds of (non)sense
- Index
- References
Meditation 5 - The power of metaphors and narratives: systems, teleology, evolution, and the issue of the “global community”
Published online by Cambridge University Press: 05 June 2014
Book contents
- Frontmatter
- Dedication
- Epigraph
- Contents
- Preface
- Introduction: images of law
- Meditation 1 Inter-disciplinarity, the epistemological ideal of incontrovertible foundations, and the problem of praxis
- Meditation 2 On the concept of law
- Meditation 3 On constitutions and fragmented orders
- Meditation 4 Of experts, helpers, and enthusiasts
- Meditation 5 The power of metaphors and narratives: systems, teleology, evolution, and the issue of the “global community”
- Meditation 6 Cosmopolitanism, publicity, and the emergence of a “global administrative law”
- Meditation 7 The politics of rights
- Meditation 8 The limits and burdens of rights
- Meditation 9 The bounds of (non)sense
- Index
- References
Summary
Introduction
The previous Meditation dealt with the problem of “soft” law and with the role of expertise. It also mentioned in passing a counter-trend in international law, namely the emergence of a new type of norms that “trump” all others, since no derogation is possible from jus cogens, and erga omnes obligations are owed to the international community as a whole. In terms of the soft/hard continuum, jus cogens norms are definitely on the “hard” side since they can be limited or changed only by a norm of the same character. This somewhat sibylline and formal definition of jus cogens by the Vienna Convention on the Law of Treaties has given rise to extensive discussions concerning which substantive norms would qualify for that status. In this context the general injunction against the use of force (with the exception of self-defence in cases of armed attack or under Security Council authorization), perhaps some of the requirements establishing an ordre public in international relations, or even a very “thick” notion of human rights have been mentioned.
Different from the functionalist logic of “soft” law, here the proprium of law is defended, not by experts or technocrats, but by scholars and judges, preferably those at various courts “above” the state. Functioning like a squadron of Herculi they are entrusted with bringing this new legal order into existence by pen and gavel. Similarly, “values” rather than technical necessity or function are supposed to serve as the gluons for the new cosmopolitan “community.” Of course, if one does not want to be an outright prophet, one has to note the slow pace and the resistance to embracing this new utopia. Usually, however, such disconfirming evidence does not undermine the faith in the goal and in the conviction that we are all on the right bus, even if there are many fits and new starts and the journey is far from being a smooth joyride. This was at least the storyline from Oppenheim to Kelsen, Lauterpacht, and Friedmann, and, in more recent times and with a different accent on “community values,” to Tomuschat and Simma.
- Type
- Chapter
- Information
- The Status of Law in World SocietyMeditations on the Role and Rule of Law, pp. 135 - 167Publisher: Cambridge University PressPrint publication year: 2014
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