Fault Lines of Globalization: Legal Order and the Politics of A-Legality

299 Pages·2013·1.246 MB·English

by  Hans Lindahl

OXFORD CONSTITUTIONAL THEORY
Series Editors:
Martin Loughlin, John P. McCormick, and Neil Walker
Fault Lines of Globalization
OXFORD CONSTITUTIONAL THEORY
Series Editors:
Martin Loughlin, John P. McCormick, and Neil Walker
One consequence of the increase in interest in constitutions and constitutional
law in recent years is a growing innovative literature in constitutional theory. The
aim of O xford Constitutional Theory is to provide a showcase for the best of these
theoretical refl ections and a forum for further innovation in the fi eld.
The new series will seek to establish itself as the primary point of reference for scholarly
work in the subject by commissioning diff erent types of study. The majority of the
works published in the series will be monographs that advance new understandings of
the subject. Well-conceived edited collections that bring a variety of perspectives and
disciplinary approaches to bear on specifi c themes in constitutional thought will also
be included. Further, in recognition of the fact that there is a great deal of pioneering
literature originally written in languages other than English and with regard to non-
anglophone constitutional traditions, the series will also seek to publish English
translations of leading monographs in constitutional theory.
ALSO AVAILABLE IN THE SERIES
Beyond Constitutionalism
The Pluralist Structure of Postnational Law
Nico Krisch
The Constitutional State
N. W. Barber
Sovereignty’s Promise
The State as Fiduciary
Evan Fox-Decent
Constitutional Fragments
Societal Constitutionalism and Globalization
Gunther Teubner
Constitutional Referendums
The Theory and Practice of Republican Deliberation
Stephen Tierney
Constituting Economic and Social Rights
Katharine G. Young
The Global Model of Constitutional Rights
Kai Möller
The Three Branches
A Comparative Model of Separation of Powers
Christoph Möllers
The Cosmopolitan State
H. Patrick Glenn
Fault Lines of Globalization
Legal Order and the Politics of A-Legality
Hans Lindahl
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Voor Annemarie
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Acknowledgments

Every book is a collective endeavour. This one is no exception; it has profi ted
immeasurably from the comments, both generous and searching, of many col-
leagues and friends.
The fi rst draft of Chapters 1–3 was written during a fi ve month research fel-
lowship in 2010 at the Stellenbosch Institute for Advanced Study, in South Africa.
I am grateful to its director, Hendrik Geyer, for his gracious hospitality and inter-
est during those wonderfully stimulating months at STIAS. Intense discussions
with André van der Walt, Henk Botha, and Philippe van Houte, during my stay
in South Africa, were very helpful in mapping out the main lines of the book.
I cherish the memories of the times spent together with Paul Cilliers, who unex-
pectedly passed away after I returned to the Netherlands.
Several audiences have discussed parts of the manuscript with me in the course
of drafting and redrafting it, and I refer to them in chronological (and alphabeti-
cal) order: members of the research seminar series of the Centre of Criminology
at the University of Cape Town, with special thanks to Cliff ord Shearing; mem-
bers of the Law Department of the London School of Economics and Political
Science, with special thanks to Martin Loughlin, Emmanuel Melissaris, Grégoire
Webber, and Michael Wilkinson; members of the Department of Philosophy
and of the Law Faculty of the Universidad del Rosario, in Colombia, with special
thanks to Beira Aguilar, Adolfo Chaparro, Camila de Gamboa, Wilson Herrera,
and Iván Mahecha; the research group of legal theory of the VU University
Amsterdam, with special thanks to Luigi Corrias, Lyana Francot, Bart van Klink,
Nanda Oudejans, Irena Rosenthal, Wouter Veraart, and Wouter Werner; partici-
pants at the Transnational Societal Constitutionalism Conference in Turin, with
special thanks to Riccardo Prandini and Gunther Teubner; the research group of
international law at Lund University, with special thanks to Matilda Arvidsson,
Markus Gunnefl o, Gregor Noll, and Aleksandra Popovic; the research group of
legal theory at Glasgow University, with special thanks to Emilios Christodoulidis
and George Pavlakos; the Grundlegung research seminar of the Faculty of
Philosophy at the University of Groningen, with special thanks to Martin van
Hees, Frank Hindriks, and Pauline Kleingeld; the Centre for Law and Society
at the University of Edinburgh, with special thanks to Cormac Mac Amhlaigh,
Christine Bell, Euan MacDonald, Claudio Mechelon, Stephen Tierney, and Neil
Walker; the Centre for Political Philosophy at Leiden University, with special
thanks to Thomas Fossen and Herman Siemens; a Law and Theory Centre semi-
nar at the University of Westminster, with special thanks to Hendrik Anderson,
Victoria Brooks, Julia Chryssostalis, Peter Fitzpatrick, Stuart Motha, Chantal
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viii Acknowledgments
Mouff e, Andreas Philippopoulous-Mihalopoulos, and Patricia Tuitt; and a semi-
nar with the law and jurisprudence PhD candidates of Finland, with special
thanks to Julen Etxabe, Ida Koivisto, Panu Minkkinen, and Kimmo Nuotio.
I appreciate detailed comments to the second draft of the entire manuscript by
Bernhard Waldenfels, whose contribution to a phenomenology of strangeness
has been an important source of inspiration for this book, and by Jacco Verburgt,
whose remarks and suggestions have helped me considerably to tighten up the
argument I am making.
It has been a joy to work closely with the participants in the research seminars
of legal philosophy at Tilburg University; their encouragement and incisive ques-
tioning during the seminars dedicated to the manuscript have greatly improved
it. I am grateful to all of them: Daniel Augenstein, Michiel Besters, Morag
Goodwin, Sean Gould, Ivana Ivkovic, David Janssens, Quoc Loc Hong, Desire
Nizigiyimana, Philip Paiement, Chiara Raucea, Umberto Sconfi enza, and Alan
Thomas. I am particularly grateful to Bert van Roermund, the former professor
of legal philosophy at Tilburg, for his unstinting support during these years; this
book bears witness to how much I have learnt from his pioneering contributions
to legal philosophy.
This book is dedicated to Annemarie ter Veer, whose support, humour, and
patience during the process of writing it mean more to me than what I can put
into writing.
This book builds on earlier published material of mine, even though the fi nal
result has taken me in directions I could not have envisaged when I began to
write it in June 2010. It is appropriate to acknowledge these sources. I am grateful
to the copyright holders for the permissions to republish. In particular, Chapter 1
expands on and revises my article, ‘Boundaries and the concept of legal order’,
published in J urisprudence: An International Journal of Legal and Political Thought
2, no. 1 (2011), 73–97. Portions of chapters 2 and 3 draw on my article, ‘We and
Cyberlaw: Constitutionalism and the Inclusion/Exclusion Diff erence’, published
in the I ndiana Journal of Global Legal Studies 20, no. 2 (forthcoming). Portions of
chapters 2 and 7 draw on my article, ‘A-Legality: Postnationalism and the Question
of Legal Boundaries’, published in the M odern Law Review 73, no. 1 (2010), 30–56.
Part of a section of chapter 2 builds on my article, ‘Inside and Outside the EU’s
“Area of Freedom, Security and Justice”: Refl exive Identity and the Unity of
Legal Space’, published in Archiv für Rechts- und Sozialphilosophie 90, no. 4 (2004),
478–497. A section of chapter 3 fl eshes out ideas initially outlined in ‘Discretion
and Public Policy: Timing the Unity and Diversity of Legal Orders’, published in
Sacha Prechal and Bert van Roermund (eds.), The Coherence of EU Law: The Search
for Unity in Divergent Concepts (Oxford: Oxford University Press, 2008), 291–313 (by
permission of Oxford University Press). A section of chapter 4 builds on my arti-
cle, ‘Constituent Power and Refl exive Identity: Towards an Ontology of Collective
Selfhood’, published in Martin Loughlin and Neil Walker (eds.), T he Paradox
of Constituent Power: Constituent Power and Constitutional Form (Oxford: Oxford
University Press, 2007), 9–24 (by permission of Oxford University Press). Part of a
section of chapter 5 draws on my article, ‘Dialectic and Revolution: Confronting
Kelsen and Gadamer on Legal Interpretation’, published in C ardozo Law Review 24,
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Acknowledgments ix
no. 2 (2003), 769–798. A section of chapter 5 presents a strongly abridged version
of the argument developed in ‘Recognition as Domination: Constitutionalism,
Reciprocity and the Problem of Singularity’, published in Neil Walker,
Jo Shaw, and Stephen Tierney (eds.), E urope's Constitutional Mosaic (Oxford: Hart,
2011), 205–230. Portions of chapter 6 build on ideas initially presented in my arti-
cles, ‘Finding a Place for Freedom, Security and Justice: The European Union’s
Claim to Territorial Unity’, published in E uropean Law Review 29, no. 4 (2004),
461–484, and ‘Acquiring a Community:  The Acquis and the Institution of
European Legal Order’, published in European Law Journal 9, no. 4 (2003), 433–450.
The fi nal section of chapter 6 draws on ideas presented in ‘Breaking Promises to
Keep Them: Immigration and the Boundaries of Distributive Justice’, published
in Hans Lindahl (ed.), A Right to Inclusion and Exclusion? Normative Fault Lines of
the EU’s Area of Freedom, Security and Justice (Oxford: Hart, 2009), 137–159. Finally, a
section of chapter 7 draws on my article, ‘In Between: Immigration, Distributive
Justice, and Political Dialogue’, published (in truncated form) in Contemporary
Political Theory 8, no. 4 (2009), 415–434.
Tilburg, March 2013