A Functional Approach to International Constitutionalization

Dunoff, Jeffrey L.; Trachtman, Joel P.

doi:10.1017/cbo9780511627088.002

Cited by 83 publications

(22 citation statements)

References 9 publications

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“…Once, according to Hamilton, moderns demand from history nothing short of the essential for the realization of sustained economic growth, sustainable development, the eradication of poverty and hunger and the protection of all human rights and fundamental freedoms, and acknowledging that collective security depends on effective cooperation, in accordance with the Charter and international law, against transnational threats." 11 A general survey of the debates around the constitutionalization of international law can be found in Dunoff and Trachtman (2009). progressive improvement of human existence, one of the consequences is the consideration that the past should resemble a place that must be avoided at all costs for it's synonymic to backwardness. The bottom-line value in prevalent accounts of international legal history is that human history evolves toward better futures, and any reference to the past -which happens to be a rather habitual practice for international lawyers, as Anne Orford rightly highlights (ORFORD, 2013) -carries the intention of bringing legitimacy to the steady elaboration of the law governing international society (KENNEDY, 1999).…”

Section: Toward Dystopian Futures In International Law?mentioning

confidence: 99%

Toward Dystopian Futures? Legal History, Postcoloniality and Critique at the Dawn of the Anthropocene

Cunha¹,

Afonso²

2017

Ver. Dir: Dir Amb. e Desev. Suntent.

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The aim of this article is to explore certain controversies that concerns climate change within a framework of critique influenced by recent methodological debates on the history of International Law. In recent years, the likely beginning of a new geological era known as the Anthropocene has been receiving considerable attention from historians. Its main assumption, one which humanity's activities on Earth since the Industrial Revolution is equivalent to a telluric force, ultimately resonates in historiographical theory and acquires a global appeal. First, it is argued that the Anthropocene holds intrinsic connections with the formation of modern international society. Through an anachronistic lens, postcolonial literature's inputs to the history of International Law forecloses forms of colonialism and imperialism as problematic dimensions of present concerns of international legal thought and global justice. In conclusion, the article contemplates an estimation of the viability of progressive teleology of history by making a case for the validity of expanding the horizons of expectations in order to account for less optimistic readings of the future.

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Section: Toward Dystopian Futures In International Law?mentioning

confidence: 99%

Toward Dystopian Futures? Legal History, Postcoloniality and Critique at the Dawn of the Anthropocene

Cunha¹,

Afonso²

2017

Ver. Dir: Dir Amb. e Desev. Suntent.

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“…Recent scholarship has brought us some distance toward analytical clarity (e.g. Kumm 2004Kumm , 2006Schneiderman 2008, Dunoff & Trachtman 2009a. Like the editors of a recent major volume on international constitutionalization, we advocate a functional approach to the phenomenon (Dunoff & Trachtman 2009b).…”

Section: Introductionmentioning

confidence: 95%

“…Kumm 2004Kumm , 2006Schneiderman 2008, Dunoff & Trachtman 2009a. Like the editors of a recent major volume on international constitutionalization, we advocate a functional approach to the phenomenon (Dunoff & Trachtman 2009b). Also like them, we believe that clarity is best served by an analytical framework that is agnostic as to the normative desirability of international constitutionalization (ibid., 4), at least in the initial stages of analysis.…”

Section: Introductionmentioning

confidence: 96%

NAFTA Chapter 11 as Supraconstitution

Wood

Clarkson

2009

SSRN Journal

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More and more legal scholars are turning to constitutional law to make sense of the growth of transnational and international legal orders. They often employ constitutional terminology loosely, in a bewildering variety of ways, with little effort to clarify their analytical frameworks or acknowledge the normative presuppositions embedded in their analysis. The potential of constitutional analysis as an instrument of critique of transnational legal orders is frequently lost in methodological confusion and normative controversy. An effort at clarification is necessary. We propose a functional approach to supraconstitutional analysis that applies across issue areas, accommodates variation in kinds and degrees of supraconstitutionalization, recognizes its simultaneously domestic and transnational character, and reflects its uneven incidence and impacts. We apply this framework to NAFTA to consider whether and how it superimposes a supraconstitutional legal order on member states' domestic constitutional orders. We show that the main thrust of this contemporary supraconstitutional project is to restructure state and international political forms to promote market efficiency and discipline, enable free capital movement, confer privileged rights of citizenship and representation on corporate capital, insulate key aspects of the economy from state interference, and constrain democratic decisionmaking.

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“…151 Factor processes for the measures should focus on relevant variables of witness protection, hypothesis generation, and testing for transparent distributive consequences of legal rules. 152 The many flaws and questions that policy-oriented jurisprudence brings can neither provide satisfactory explanations, nor stronger contextualization 153 values. 155 They are described as a sham that cannot be expected to be applicable to a world community.…”

Section: A 'Propagation Of Anarchy'mentioning

confidence: 99%

The Icc’s Witness Protection Measures Through the Lens of Policy-Oriented Jurisprudence

Kayuni

2013

Journal of Law and Jurisprudence

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Abstract:The protection of witnesses from intimidation or harm has become a firmly entrenched part of modern criminal justice systems. The ICC's decisionmaking with regard to procedural and non-procedural protective measures has on one hand reinforced the integrity and success of the judicial process, while on the other, led to numerous interpretational and applicability challenges of both policy and law. This article aims at designating policy-oriented jurisprudence as a possible theoretical approach and solution to the ICC's international law making of witness protection measures. Policy-oriented jurisprudence approaches international law as a decision-making process, where decisions are made pursuant to shared community interests and expectations. This will likely aid advisers, scholars, or those entrusted with decision-making to pay particular attention to all factors necessary for the security of witnesses.

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A Functional Approach to International Constitutionalization

Cited by 83 publications

References 9 publications

Toward Dystopian Futures? Legal History, Postcoloniality and Critique at the Dawn of the Anthropocene

Toward Dystopian Futures? Legal History, Postcoloniality and Critique at the Dawn of the Anthropocene

NAFTA Chapter 11 as Supraconstitution

The Icc’s Witness Protection Measures Through the Lens of Policy-Oriented Jurisprudence

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