Methodological Pluralism and Its Critics in International Economic Law Research

Abstract

This paper (accepted for publication in the Journal of International Economic Law 15 (2012)) uses the term ‘legal methodology’ as referring to the conceptions of the sources and ‘rules of recognition’ of law, the methods of interpretation, the functions and systemic nature of legal systems like international economic law (IEL), and their relationships to other areas of law and politics. It begins with discussing six competing theories of justice justifying international economic regulation. This overview of theories of justice is followed by a discussion of competing moral, economic, political and legal conceptions of the ‘primary’ and ‘secondary rules’ of IEL. Due to the ‘dual nature’ of modern legal systems resulting from the universal recognition of human rights and of other principles of justice, legal positivism, natural law theories, social and policy conceptions of national, transnational and international legal systems must be applied in mutually coherent ways. As law and jurisprudence are less about ‘truth’ than about ‘institutionalizing public reason’, positive and normative legal arguments must respect legitimate ‘constitutional pluralism’ and ‘reasonable disagreement’ about interpretation and legal protection of civil, political, economic, social and cultural human rights as relevant context for interpreting IEL. The paper explains why, due to ‘globalization’ and the transformation of ever more national into transnational public goods, national Constitutions have become ‘partial constitutions’ that can no longer protect many public goods without international law and institutions. Constitutional and ‘public goods’ theories confirm that the five competing conceptions of IEL must be embedded into a multilevel constitutional framework limiting abuses of public and private power in all human interactions at national, transnational and international levels. The paper includes case-studies illustrating the need for comparative institutional research on which multilevel legal, institutional and regulatory approaches protect human rights, other cosmopolitan rights of citizens and related public goods most effectively. The obvious ‘governance failures’ in protecting interdependent public goods call not only for ‘democratic empowerment’ of citizens by cosmopolitan rights compensating the inadequate parliamentary control of multilevel governance by new forms of ‘participatory’, deliberative and cosmopolitan democracy. The obvious abuses of ‘Westphalian conceptions’ of ‘international law among states’ must also be limited by stronger multilevel judicial protection of cosmopolitan rights in order to hold governments more accountable for their failures to protect interdependent public goods more effectively.

Keywords: international economic law, constitutionalism, human rights, justice