The Law of the Future and the Future of Law: Volume II - FICHL

528 Pages·2012·5.2 MB·English

by  Skre Alf Butenschøn

Law of the Future Series
The Law of the Future and
the Future of Law: Volume II
Sam Muller, Stavros Zouridis Morly Frishman and Laura Kistemaker (editors)

The Law of the Future and
the Future of Law:
Volume II
Sam Muller, Stavros Zouridis, Morly Frishman
and Laura Kistemaker (editors)
2012
Torkel Opsahl Academic EPublisher
The Hague
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31 October 2012.
© Torkel Opsahl Academic EPublisher, 2012
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ISBN 978-82-93081-80-7
PUBLICATION SERIES PREFACE
This Series is the result of a rather unique endeavour of HiiL: to research
the law of the future. Driven by research results that were coming from
HiiL and from the small but growing engagements of others (Anne Marie
Slaughter’s New World Order stands out as an early pioneering work), we
had a clear sense that the global legal environment was changing, and that
legal and justice actors were both shaping those changes and were con-
stantly working to adapt to them.
To understand law’s futures, we started a process in which we
asked 52 thought leaders in different legal areas to reflect on law in their
field two decades away. Their think pieces became The Law of the Future
and the Future of Law, volume one. One thing led to another, and with the
tremendous support of our hugely innovative publisher, the Law of the
Future Series was set up.
The Series is meant as a focal point for publications that reflect on
the challenges connected with law’s futures and what we can do to deal
with them. It is perhaps a forum for a new discipline, legal futurology,
although the Series is not meant for Jules Verne or George Lucas fantasies
(however much we admire and enjoy them). It is a place for serious and
thorough thinking about the future place in our lives of a commodity the
future badly needs: good rule systems that support stability, prosperity
and human dignity.
We welcome your ideas and submissions.
Sam Muller
Director, HiiL
Stavros Zouridis
Professor of Public Administration, Tilburg University
Larry Catá Backer
Professor of Law and International Affairs, Penn State University

i

LAW OF THE FUTURE AND THE FUTURE OF LAW
This is the second volume of The Law of the Future and the Future of
Law, and a reflection of our continuing efforts to map trends in the global
legal environment. In this volume, we focus on areas that received less at-
tention in the 2011 volume. There is, for example, less on criminal law,
and more on intellectual property and trade law. We start the volume with
an introduction in which we set the stage. The volume ends with some
concluding thoughts by Professor Jan Smits, who was amongst the earliest
of law of the future thinkers. He reflects on common threads in the think
pieces. We extend our appreciation to him for his willingness to take the
time to do this.
Once again, it has been a very inspiring endeavour to work with
outstanding thought leaders from very different fields. It was at times a
tight process, which asked a lot from the authors. We thank them for their
patience and commitment.
We would also like to thank our copy editing team, Wendy Bre-
mang, Kaitlyn Jones, Sarah-Louise Todd, Lisa-Felicia Akorli, Tsvetelina
Mihaylova, Lara Schaefer and Kate Elliot, led by the indefatigable and
ever meticulous Alexander Orona. We thank Alf Butenschøn Skre and
Morten Bergsmo from Torkel Opsahl Academic EPublisher, for their pa-
tience, and endurance with our inability to stick to deadlines. We are
humbled by your continuing belief in us and treasure our cooperation.
Lastly, a special word of thanks to Dessy Velikova, who managed the
whole process with both softness and determination.
Sam Muller, Stavros Zouridis,
Morly Frishman and Laura Kistemaker

iii

TABLE OF CONTENTS
Publication Series Preface .......................................................................... i
Law of the Future and the Future of Law ................................................. iii

Introduction:
The Law of the Future Continues ..................................................... 1
By Sam Muller, Stavros Zouridis, Morly Frishman
and Laura Kistemaker
1. Why and How .................................................................................. 1
2. Previous Findings ............................................................................. 4
3. Outline and Structure ....................................................................... 5
3.1. The Global Law Perspective: To What Extent are
We Moving towards a Global Legal System? ......................... 6
3.2. The Perspective of Connections:
What Connections with Global Issues are Emerging? ............. 8
3.3. The Perspective of Technology:
How is Technology Affecting Law? ...................................... 10
3.4. The Perspective of States:
What is Changing or Needs to Change? ................................ 13
3.5. The Perspective of Trade and Private Actors:
How Are Trade and Commerce Driving the Future? ............. 15
3.6. The Perspective of Law in its Context: Law as a Concept
in the Past, in the Present and in the Future ........................... 20
4. An Outlook ..................................................................................... 21
CHAPTER I
THE GLOBAL LAW PERSPECTIVE:
TO WHAT EXTENT ARE WE MOVING TOWARDS A GLOBAL LEGAL SYSTEM?
1.1. Globalisation and Law: Ten Theses ............................................... 27
By William Twining
1. Introduction .................................................................................... 27
2. Ten Theses ..................................................................................... 30
2.1. Thesis One: Global Generalisations about Law ..................... 30
2.2. Thesis Two: Non-State Law .................................................. 31
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2.3. Thesis Three: Sub-Global Patterns of Law ............................ 32
2.4. Thesis Four: Legal Pluralism ................................................. 32
2.5. Thesis Five: Legal Pluralism and the Rule of Law ................ 32
2.6. Thesis Six: Diffusion of Law ................................................. 33
2.7. Thesis Seven: Surface Law .................................................... 34
2.8. Thesis Eight: Belief Pluralism ............................................... 34
2.9. Thesis Nine: A Secular Age? ................................................. 35
2.10. Thesis Ten: Ethnocentrism................................................... 35
3. Conclusion ..................................................................................... 36
4. Sources and Further Reading ......................................................... 36
1.2. The Future of Law and the Enviroment:
the Emergence of Global Enviromental Law ................................. 39
By Elisa Morgera
1. Introduction .................................................................................... 39
2. Increasing Specialisation ................................................................ 40
3. Globalisation .................................................................................. 42
4. Return to Bilateralism .................................................................... 44
5. An Increasing Role for Private Actors and Instruments ................. 45
6. Conclusions:
Teaching and Researching Global Environmental Law ................. 47
7. Sources and Further Reading ......................................................... 47
1.3. Judicial Review and International Rule-Making ............................ 51
By Frank Vibert
1. Introduction .................................................................................... 51
2. Two Fundamental Problems .......................................................... 52
3. The Relevance of Judicial Review As a ‘Challenge System’ ........ 54
4. What Is Required and How to Achieve It ...................................... 56
4.1. Internal Virtual Review .......................................................... 57
4.2. Agreement on Principles by the OECD ................................. 58
4.3. Administrative Procedures Resolution by the UN ................. 58
4.4. Addendum to the UN Declaration of
Fundamental Human Rights .................................................. 58
5. The Global Constitutional Perspective ........................................... 59
6. Conclusion ..................................................................................... 59
7. Sources and Further Reading ......................................................... 60
1.4. A Meta-Regulatory Turn?
Control and Learning in Regulatory Governance ......................... 61
By Colin Scott
1. Introduction .................................................................................... 61
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