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Published online by Cambridge University Press: 02 May 2012
When the editors of this journal asked me to write a comment on Jaye Ellis's paper, I was immediately fascinated by the prospect of engaging in a rigorous debate, perhaps one as controversial as that between Hans Kelsen and Eugen Ehrlich on legal scholarship and legal sociology about 100 years ago – although I am unable to reach the brilliance of those thinkers, and probably also their level of polemics.1 Now that I have read Jaye's paper, my expectations have somewhat changed. I realize that Jaye and I agree on many important points – points that would have brought large parts of the ‘invisible college’ up in arms a few decades ago. In particular, we agree that legal scholarship should find ways of dealing with the multiplicity of soft-law instruments that look like law because they consist of sometimes quite precise rules; that function like law because they effectively guide the behaviour of states, international organizations, and private entities; and that are therefore not adequately described as ethical, political, or moral rules. We also agree that the traditional concept of international law, which considers state consent as the one and only source of legitimacy, has come under stress since the advent of global governance, particularly because other actors like international bureaucracies or non-state entities play increasingly important, indispensable roles.
1 The debate between Kelsen and Ehrlich is documented in Paulson, S. (ed.), Hans Kelsen und die Rechtssoziologie (1992)Google Scholar.
2 Leibfried, S., ‘To Tame and to Frame’, in Bogdandy, A. v. et al. (eds), The Exercise of Public Authority by International Institutions (2010), 51, at 58CrossRefGoogle Scholar; J. Klabbers, ‘Goldmann Variations’, in Bogdandy et al., supra this note, 713, at 718.
3 In the paper, I argue that the creation, maintenance, and destruction of normative expectations are what distinguish legal from non-legal authoritative instruments (see text at note 7, infra).
4 Klabbers, J., ‘Reflections on Soft International Law in a Privatized World’, (2005) 16 Finnish Yearbook of International Law 313, at 322Google Scholar; J. d'Aspremont, Formalism and the Sources of International Law (2011), 29.
5 In Goldmann, M., ‘Inside Relative Normativity: From Sources to Standard Instruments for the Exercise of International Public Authority’, (2008) 9 German Law Journal 1865, at 1884Google Scholar; I provide a non-enumerative list of possible ex ante criteria.
6 L. Wittgenstein, Philosophische Untersuchungen (2004), 262, para. 43.
7 J. Habermas, Faktizität und Geltung (1992), especially at 45.
8 J. Raz, The Authority of Law (1979), 5, at 29.
9 Teubner, G., ‘Selbstsubversive Gerechtigkeit: Kontingenz- oder Transzendenzformel des Rechts?’, (2008) 29 Zeitschrift für Rechtssoziologie 9CrossRefGoogle Scholar.
10 Ibid., at 14.
11 Ibid., at 12.
12 Ibid., at 18.
13 Habermas, supra note 7, at 55–7.
14 J. Habermas, Zur Verfassung Europas (2011), 82.
15 A. Sen, The Idea of Justice (2009), 87.
16 Keohane, R. O. and Buchanan, A., ‘The Legitimacy of Global Governance Institutions’, in Wolfrum, R. and Röben, V. (eds), The Legitimacy of International Law (2008) 25, at 51Google Scholar.
17 Sen, supra note 15, at 321.