Normative Creativity and Global Legal Pluralism: Reflections on the Democratic Critique of Transnational Law

Abstract

The globalization process has changed the nature of the “social.” Social interactions have become much more varied and flexible—transgressing traditional political and cultural boundaries (and expectations). The emergence of new forms of global law, which evolve and operate across these traditional lines, is a major aspect of globalization. This expanding network of transnational “legalities” is not based on a coherent set of normative or institutional hierarchies. Rather, it represents a highly pluralistic mixture of legal regimes, with variable organizational and thematic structures: from state-oriented systems—such as the dispute settlement system of the WTO, or the adjudicative system of the Law of the Sea Convention—to hybrid or private regimes. The latter category includes, for example, the expanding field of technical standardization, the new governance structure of the Internet, and the field of transnational arbitration.