Abstract
AbstractThis Article illustrates the functional and conceptual variances of law in different contexts. Whereas legal actors on the international level might normatively aim for law to have a similar effect to that of domestic law, the way in which international and supranational law can fulfill these potential functions is different. Accordingly, this Article argues that an awareness of the particularities and challenges that the potential functions of law encounter in the international and supranational context is needed. Moreover, it suggests an analytical lens to conceptually frame and locate current developments, offering a broader perspective on—or even an element of explication for—the apparent crisis that law is currently facing on the international and supranational scale. After describing the potential functions of law on an abstract scale and grouping them into analytical categories, the Article uses these categories as a lens in order to assess in which way international law can fulfill these potential functions, where priorities regarding certain functions might differ, and where some aspects of these functions are challenged when law is made and applied in the international and supranational sphere.
Highlights
This Article illustrates the functional and conceptual variances of law in different contexts
Whereas legal actors on the international level might normatively aim for law to have a similar effect to that of domestic law, the way in which international and supranational law can fulfill these potential functions is different
This Article argues that an awareness of the particularities and challenges that the potential functions of law encounter in the international and supranational context is needed
Summary
If an emphasis is put on the relationship between law and the social reality it operates in, the first and most inherent function of law comes to mind: Law shapes social reality. It guarantees the continuity and persistence of the values that are integrated in its legal framework This potential value-related function of law translates on the specific social level into a “moral aim of law.”[24] Like other sets of norms, law provides a standard against which human conduct is evaluated; it provides “standards of criticism of such conduct.”[25] In doing so, law creates a yardstick comparable to strictly speaking moral principles, leading to a rapprochement of natural law approaches and positivism.[26] Some even go further to understand law as aiming not just at criticizing, and at correcting the moral problems and moral defects of other forms of social ordering.[27] Such a correctional approach comes with the inherent normative claim that law always induces moral improvement, or even that it always enacts the common interest of society as a whole.[28] A general orientation towards community interests in some legal orders, should not be equated with the moral standard that all legal norms always serve a morally good purpose.[29] —and in order to capture a broader variety of approaches—this Article uses the term of law shaping reality. The specific (social) expectations on a certain subject matter are linked to a general expectation in law as a concept
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