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Soft Law, Fuzzy Law, Non-Law: Intricacies of the Normative Market

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Abstract:

The landscape of today's globalised markets has cast law, and particularly international law, on to centre stage as “globalised law”. However, internationalisation, regionalisation and even re-nationalisation of law are equally involved in the process. The question how to regulate globalisation—whether advocated, as by the World Economic Forum, or resisted (e.g., by the World Social Forum)—will be decided by the changing balance of power between the different actors involved. In this chapter, I will address how law, and the shifting boundaries between states and market forces in its development, is involved in this regulatory dynamic.

In the same process in which, to quote Robert Boyer, “the most globalised businesses attempt to redefine the rules of the game, previously imposed by nation-states, to their own advantage”, new normative territories and new forms of regulation are opened up. These in turn raise a number of issues about the legal nature, opposability and enforceability of non-state norms. The use of the legal face of globalisation by governments in fact serves to establish the market's autonomous status, as the private sector driving forward the process also appears to be better suited to the “new space”. The sovereign state under these circumstances gives way to three types of private authorities: the power of the market, moral authority (exercised by non-governmental organisations and transnational social movements), and unlawful powers. New actors (private and mixed) have come to challenge the international state monopoly, capturing the ground abandoned by states and very much setting the parameters of how the states will operate in the changed context.

The question that emerges against this background, is how states resisting the liberal order can be held to account. The global market already penalizes any deviance; indeed for governments in search of credibility, the “loss of market confidence evokes the image of the Sword of Damocles”. After all, as Ulrich Beck underlines, for smaller or weaker states, there is only one thing worse than being invaded by foreign investors, and that is not being invaded by them. Willingly or unwillingly, the state itself has become an element in the international market.

Document Type: Research Article

DOI: http://dx.doi.org/10.5848/CSP.0828.00010

Publication date: January 1, 2006

More about this publication?
  • Global Norms for the Twenty-First Century
    Norms in the contemporary world system are no longer established exclusively through inter-state agreement but increasingly, are becoming truly global. This collection brings together critical studies on this complex process. Written by authors from eleven different countries, the book challenges the often convenient rationalisations of regime theory, the governance approach, and 'post-national' or 'cosmopolitan' democracy, in order to explore the practical, theoretical and ethical implications of the new world of global norms.
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