Meditation 4 - Of experts, helpers, and enthusiasts

Summary

Introduction

The upshot of the previous discussions was that the weakness of the international legal order is due to the feeble institutionalization of the political processes rather than to the lack of laws, conventions, or “courts,” as it is often suggested. Indeed, as the discussion of free-standing regimes showed, there is an awful lot of law out there, and the proliferation of legal norms and dispute resolution is part of the problem, not of its solution. In the absence of an authoritative decision, in which priorities of policy can be determined, trade-offs can be agreed upon, and broad powers can be delegated, dispute settlement and judicial control – while certainly not irrelevant – can play only a limited role. This is why we frequently observe a struggle over which discourse shall become the hegemonic one: whether an issue should be phrased as a trade or an environmental issue, as a labour question, or as one involving human rights.

It is unsurprising that with increasing complexity “norm collisions” are difficult to handle. Moreover, agencies determining policy often resort to informal norms or dispute settlements outside the legal sphere. Such developments are not limited to the international sphere where “soft” law and “best practices” have become a trend (or rather a counter-trend to the argument of the legalization or judicialization). A similar phenomenon has been noticed in domestic legal orders, where both the preference for “private ordering” and for alternative dispute settlement procedures (ADS) have been noted by sociologists, and law and economics lawyers alike. Cost considerations are certainly one reason why firms and investors prefer arbitration to lengthy litigation, or to the even more cumbersome procedures of diplomatic protection. Within the domestic sphere the preference for private ordering is, however, also fuelled by a troubling loss of faith in regulation and in the social engineering by courts that resulted from the “rights” revolution a few decades ago.