Purity Lost: The Paradoxical Face of the New Transnational Legal Body

Abstract

Modern international law seems to be in disarray. The classic doctrines of international law, with their focus on sovereignty, state consent, custom and treaty, do not provide a satisfactory explanation for many of the practices and institutional structures that fill the global legal universe. The contemporary legal terrain is characterized by overlapping jurisdictions, inconsistent doctrinal interpretations and competing worldviews. But what are the social implications of the deepening fragmentation and increasing complexity of the global legal system? Some observers see these phenomena as a new global risk, which requires urgent collective response. Global constitutionalisation is put forward in this context as a possible and appropriate response. Using the notions of purity and paradox the article develops an analytic framework in which the increasing complexity of the international legal system can be elucidated. The complexification of the global legal system is described in terms of a move from purity to impurity and from singular to multiple paradoxicality. The article uses examples from diverse fields of law - ranging from the WTO, the International Criminal Court, to the ICC International Court of Arbitration and the World Wide Web Consortium Platform for Privacy Preferences Project to develop this argument. Drawing on this framework the article considers the consequences of the complexification of the global legal system in terms of its stability and legitimacy. Rather than seeing the messy nature of modern international law as a risk the article postulates it as an evolutionary achievement which extends the horizon of possibilities through which the international legal system can react to social pressures. Drawing on ideas from systems theory and ecology the article argues that the attempts to purify the international legal system through appeal to grand theories - constitutional, moral or other - could have negative social consequences. The article explores in this context an alternative institutional model - non-hierarchical reflexivity - which embraces, rather than oppose, the innate paradoxicality of modern international law.