Institutional Fragmentation and the Ontological 'Ethos' of International Law as a Legal System in a World Society

Abstract

In the “institutional fragmentation of international IP law” debate, the analogy between international law and national legal systems, as the theoretical premise of the “institutional fragmentation” language, fails for the lack of “relevant similarity”. And secondly, the ontological “ethos” of international law, which are the inherent virtues of international law-making and implementation, regime evolution and interaction in this world society, could rectify the chaos of this rhetoric of “institutional fragmentation” and illuminate the understated benefits as well as rationalities of institutional fragmentation. The “post-ontological era” is not coming yet for this “institutional fragmentation” debate, and the “institutional fragmentation” is the “new normal”. Thirdly, The fundamental contradiction contained in this “institutional fragmentation of international law” debate is between the specialization of international law (the “functional approach” of modern international law’s development, as the endogenous factors) and top-down systematic theoretical conception of international law (international law as a legal system, as the exogenous factors). The junction of those forces is the “concerns on the legitimacy of international law” against national legal systems in a world society. Fourthly, from analogical reasoning to ontological “ethos”, there is a “paradigm shift” from the traditional “top-down” global governance paradigm (which is associated with analogical reasoning and hierarchical solutions to “regime complex”) to a “bottom-up” approach with more ontological and inside-out-looking (which could better grasp and understand the dynamics and pulse of regime interaction and evolution). This fundamental change enables those arguments thereafter on the regime interactions and evolutions have totally different theoretical departures, journeys and destinations. Namely, it is more appropriate to ask “what is the status quo, and how to understand it in a historical, relational, structural and holographic way; through analyses of underlying reasons and rules, how will the landscape develop in the future and what could or should be done if there are certain preferences” with a realistic “bottom-up approach” in consideration of the “law of universal gravitation” and the structure of “tensional integrity” in this “regime interaction” perspective, rather * Anlei ZUO. PhD Candidate. University of Hong Kong, Faculty of Law. LLM (NUS). Guest Researcher (Max Planck Institute for Innovation and Competition; Max Planck Institute Luxembourg). The author wishes to thank Associate Professor Yahong Li, Associate Professor James D. Fry, Assistant Professor Shahla Ali and Assistant Professor Jianlin Chen in The University of Hong Kong, Professor Helen Siu from Yale University, and Professor Mark Feldman in Peking University, for their helpful guidance, comments, suggestions and discussions on related research design, research methods and earlier drafts. But all the errors should be attributed to the author alone. Some parts of this paper have been submitted, circulated, presented and discussed in the “SLSA 2015 Conference: Socio-legal in Culture: the Culture of Socio-legal” (March 2015, University of Warwick) and the “Inaugural Hong Kong Research Postgraduate Symposium” (April 2015, The Chinese University of Hong Kong). The author appreciates the questions, discussions and suggestions in those conferences. This thesis is basically the chapter 2 of Anlei ZUO’s PhD dissertation “The Institutional Fragmentation of International Intellectual Property Law: Ontological Ethos and Regime Interaction in A World Society”, and the research is funded by HKU Postgraduate Studentship (2013-2017).