Lars Viellechner

Responsive legal pluralism: The emergence of transnational conflicts law

The overlapping and intertwinement of both territorially confined and functionally oriented legal orders in world society is often referred to as “new legal pluralism”. Under these conditions, the coherence and legitimacy of the law may only be guaranteed through a horizontal coordination among the different legal orders, opening themselves for each other by internally reflecting their mutual impact. Indeed, a new kind of conflicts law required to this end is gradually evolving. In accordance with the spirit of some express provisions in treaties and constitutions, courts and tribunals dialectically develop rules of complementarity and subsidiarity without relinquishing their own identity. A “responsive legal pluralism” of this kind offers a promising fourth way to overcome both the outdated dualist doctrine of sovereigntism and the unattainable monist vision of universalism while at the same time avoiding radical legal pluralism. It may even amount to an adequate reconfiguration of constitutionalism in the current context.

The Limits of Law (and Democracy) in the Euro Crisis: An Approach from Systems Theory

The chapter attempts to explore the fate of law and democracy in the euro crisis from the sociological perspective of systems theory. It consecutively ascertains the performance, the relevance, and the function of the law with regard to the current practice of restructuring sovereign debt in the euro area. While novel forms of regulation such as the European Stability Mechanism attest a remarkable assertiveness of the law, they cannot effectively command economic recovery and must cede to economic imperatives for their part. Under such circumstances, the law can no longer adequately fulfill its function to counterfactually secure normative expectations. Nevertheless, the regulatory experiments in the euro crisis may not be regarded as undemocratic. Rather, the heterarchical processes of mutual observation, recognition, and contestation among the various constituencies involved, including representatives of governments, institutions of the European Union, central banks, national parliaments and peoples via referenda, as well as European and national courts, provide some substitute for the lack of elections and parliamentary decision-making at the European level.

Cosmopolitan Pluralism as an Approach to Law and Globalisation

As soon as a statist paradigm of ‘legal centralism’ came to prevail in legal scholarship, the perennial question of ‘What is law?’ lost its intricacy. Technically speaking, it could be answered by a glance at the official gazette. For the constitutional state, moreover, the issue of legitimacy turned into an aspect of legality. All law enacted pursuant to the provisions of the constitution was deemed legitimate. Justice allegedly followed not from its congruence with a preordained good but from the enduring possibility of its alteration through the democratic legislative process, which the constitution established and constrained only negatively, notably by protecting fundamental rights. Admittedly, the statist paradigm has always had difficulty conceptualising international law. The outworn theories of dualism and monism could account for it but insufficiently, either finding clear separation or hierarchical delegation. Under conditions of globalisation, this repugnancy eventually springs to the surface. Questions of

Berücksichtigungspflicht als Kollisionsregel

Die Frage nach dem Verhaltnis von Volkerrecht und innerstaatlichem Recht ist seit jeher umstritten (1.). In Anbetracht von Veranderungen des Volkerrechts unter Bedingungen von Europaisierung und Globalisierung gewinnt sie an Brisanz und verlangt nach neuen Antworten (2.).