Hauser Globalization Colloquium Fall 2008:

Global Governance and Legal Theory

NYU Law School
Professors Benedict Kingsbury and Richard Stewart
Furman Hall 324, 245 Sullivan St. (unless otherwise noted)
Wednesdays 2.15pm-4.05pm

Provisional Semester Program - Attached Paper is shown in Bold

August 27- Teaching Session: Introductory Class (course instructors)

September 3- No class (legislative Monday)
September 10- Speaker: David Dyzenhaus, University of Toronto, NYU Global Law Professor
Topic: The Concept of (Global) Administrative Law
September 17- Panel Discussion on the September 2008 ECJ Decision in Kadi.
Professors Stewart, Kingsbury, and members of the international law faculty.
September 24- Speakers: Eyal Benvenisti (Tel Aviv/NYU) and George Downs (NYU)
Topic: Toward Global Checks and Balances
October 1- Speakers: Nico Krisch (LSE); and Euan MacDonald and
Eran Shamir-Borer (NYU)
Topic: Global Constitutionalism and Global Administrative Law (two papers)

Friday October 3 - SPECIAL SESSION Furman Hall 310, 3pm-5pm

Speaker: Neil Walker, Edinburgh
Topic: Beyond boundary disputes and basic grids: Mapping the global
disorder of normative orders
Background reading: Constitutionalism Beyond the State

October 8- Speaker: Meg Satterthwaite (NYU)

Topic: Human Rights Indicators in Global Governance
October 15- Speaker: Janet Levit, Dean, University of Tulsa College of Law
Topic: Bottom-Up Law-Making Through a Pluralist Lens: The ICC Banking
Commission and the Transnational Regulation of Letters of Credit
October 22- Speaker: Jack Goldsmith, Harvard Law School. Pollack Room, Furman Hall 900.
Topic: Law for States: International Law, Constitutional Law, Public Law (paper
co-authored with Daryl Levinson)
Guest Commentator: Prof Georges Abi-Saab, Geneva, former Chair of WTO
Appellate Body
October 29- [The IILJ will convene jointly with JILP a conference on International Tribunals, on
Wed Oct 29, 9am-6pm, at the Law School. Global governance issues will feature. Students should
attend this conference during the regular Colloquium time slot, and are welcome to attend other
parts of the conference also. See the IILJ Website for details.]
November 5- Speaker: Robert Keohane, Princeton and Kal Raustiala (UCLA)
Topic: Toward a Post-Kyoto Climate Change Architecture: A Political Analysis
November 12- Speaker: Jeremy Waldron (NYU)
Topic: International Rule of Law
November 19- Speaker: Benedict Kingsbury (NYU)
Topic: Global Administrative Law: Conceptual and Theoretical Problems
November 26- Student paper presentations [may be rescheduled, due to Thanksgiving break]
December 3- Student paper presentations and wrap up.

Program and papers available at: http://iilj.org/courses/2008HauserColloquium.asp

International Journal of Constitutional Law Advance Access published July 18, 2008

SYMPOSIUM

Beyond boundary disputes and basic

grids: Mapping the global disorder of
normative orders
Neil Walker*

The recent proliferation of transnational forms of legal regulation and recognition has
transformed the way we understand the global legal configuration, both in quantitative
and in qualitative terms. Quantitatively, so dense are the connections and so significant
the overlaps between legal orders that they can no longer easily be compartmentalized—
still less marginalized—as mere boundary disputes. Qualitatively, the underlying basic
grid, or “order of orders,” through which we make sense of such connections and
overlaps, is no longer well understood in traditional Westphalian terms—as the
accommodation of mutually exclusive state sovereignties within a largely facilitative
framework of international law. Rather, there is an emerging “disorder of orders,” with
traditional state sovereigntist, unipolar, global-hierarchy, regional, legal-field discursive
(including global versions of both “constitutional” and “administrative” law),
coherentist, and pluralist grids of understanding of the relationship between normative
orders vying with one another, but with none gaining ascendancy. The future of the
global legal configuration is likely to involve more of the same. It is likely we will not
witness the reestablishment of a new dominant order of orders but, instead, will depend
on the terms of accommodation reached among these competing models and among the
actors— popular, judicial, and symbolic—who are influential in developing them.

Introduction
Today, it is a commonplace assumption that the frontiers of justice have shifted
considerably over the last sixty postwar years. The “Keynesian-Westphalian
frame,”1 which supposed that questions of the just ordering of social rela-
tions—matters of fair representation, fair distribution, fair recognition, and
fair treatment—were properly asked and answered only within and, to a lesser
extent, between sovereign states with mutually exclusive territories, popula-
tions, and governing arrangements, is far less dominant than once it was.2

*Professor of public law and the law of nature and nations, School of Law, University of Edinburgh. Email:
neil.walker@ed.ac.uk
1
Nancy Fraser, Reframing Justice in a Globalizing World, 36 NEW LEFT REV. 69 (2005).
2
See, e.g., Neil Walker, Late Sovereignty in the European Union, in SOVEREIGNTY IN TRANSITION 3–32
(Neil Walker ed., Hart 2003).

© The Author 2008. Oxford University Press and New York University School of Law. 1
All rights reserved. For Permissions, please email: journals.permissions@oxfordjournals.org
I•CON, pp. 1–24 doi:10.1093/icon/mon016
2 I•CON

Similarly, in the corresponding legal register, the idea that these key questions
of justice arise only within the conventional, and conventionally separate,
structures of constitutional law (considered as the law of the Keynesian-
Westphalian state) and international law (considered as the law between
Keynesian-Westphalian states) is far less dominant than once it was. What is
more, this decline in the influence of the Keynesian-Westphalian frame is evi-
dent even, and perhaps especially, among the countries of the West that were
the original designers and exporters of that frame.3
Certainly, it remains controversial just why this seismic shift has taken place.
It is a complex and open question which of the circuits of transformation, widely
recognized under the portmanteau term “globalization,”4 has been most impor-
tant in the recent transformation and in what combination. Such transforma-
tive forces would include increased capital mobility and transnational trade; the
growth of global, regional, and other transnational political institutions; the
increased scope and fluidity of societal networks through new transport and
information technologies; and the greater proximity, accessibility, and assimila-
tion of other cultures. Even more controversial is the question of how advanced
the process of global transformation is and how resistant to countertrends.5
Nonetheless, the premise that, in principle, the dominant Keynesian-Westphalian
frame is under challenge from the current wave of globalization not only increas-
ingly informs political understandings and worldviews but is shared across
many of the social sciences, and, in each case, this sea change has helped to
shape significant new research agendas and problem-solving paradigms.
The concern of the following inquiry is with core aspects of the “juristic
agenda” currently emerging in the domain of legal science in response to the
present intense phase of globalization. The broad phrase “juristic agenda” is
used advisedly to embrace all aspects and every level of a discipline of inquiry
and research program that, considered as whole, remains closely informed by
law’s privileged role as a method of practical intervention in the social world.6

3
See, e.g., James Tully, The Imperialism of Modern Constitutional Democracy, in THE PARADOX OF
CONSTITUTIONALISM: CONSTITUENT POWER AND CONSTITUTIONAL FORM 315–338 (Martin Loughlin & Neil
Walker eds., Oxford Univ. Press 2007).
4
See, e.g., DAVID HELD, THE GLOBAL COVENANT (Oxford Univ. Press 2004).
5
See, e.g., PAUL HIRST & GRAHAME THOMPSON, GLOBALIZATION IN QUESTION (2d ed., Polity 2000).
6
More specifically, by the term “juristic” I embrace the whole continuum of systematically law-
centered, reflective thought, from the most concrete and applied to the most abstract and de-
tached—from the exposition and critique of legal doctrine through the classification of the forms of
law and the explanation of the place of law in the social and political order to prescriptive analyses
of optimal or ideal law. The classification under a common umbrella of these diverse forms of
thought acknowledges the close and durable thread connecting the contemplative study of law to
the applied pursuit of law as a specially authoritative form of practical reasoning (but see infra note
9), and, in so doing, it alerts us to the possibility that at least some of the reasons for the prevalence
of the theme of boundary disputation and relations between particular legal orders in the study of
law-under-globalization has to do with their centrality to the practice of law.
Neil Walker | Beyond boundary disputes and basic grids 3

The juristic agenda, understandably, focuses on the two key, related challenges
to law’s practical capacity arising from globalization and from the gradual dis-
placement of the state-centered Keynesian-Westphalian frame, and it is these
two challenges that will provide the focal point of our overall discussion. In
pursuing this discussion, however, we are attentive not only to what is “on”
the agenda—so to speak—but also to both the limits and the possibilities inher-
ent in the agenda-setting process. On the one hand, one palpable, recurrent
feature of the juristic agenda is its tendency to understand the challenges occa-
sioned by the displacement of the Keynesian-Westphalian frame through a
perspective that remains in the shadow of that frame and, as such, may fail to
register in full its declining significance. As we shall see in due course, this ten-
dency to view and interpret the new configuration of global law through an old
lens may actually reinforce the problems posed by the new configuration. On
the other hand, if we take a longer view, the displacement of the old frame also
allows new possibilities for reimagining global law in circumstances of consid-
erable political flux and epistemic uncertainty. As we shall again see in due
course, this state of affairs provides an opportunity for exercising influence
over the assembly of a new frame that juristic agenda-setters, on account of
their very position in the division of labor, have already begun to discern and
are well-placed to pursue.
What do the two key challenges to law’s practical capacity posed by globali-
zation consist of, and in what sense is the contemporary juristic agenda incom-
plete or deficient in its understanding of them? While one challenge is found at
the surface of the new globalized law, the other penetrates its depths. The
surface challenge concerns the exponential increase in the density of trans-
boundary relations and in the incidence of boundary disputes in the new
post–Keynesian-Westphalian arenas of global law. To the (considerable) extent
that the juristic agenda concentrates its attention on the question of the dis-
puted borders between legal jurisdictions—a question easily grasped insofar as
it differs only in intensity and not in kind from that already familiar within the
Keynesian-Westphalian frame—it necessarily remains a partial and restrictive
agenda. This is so because controversies between overlapping legal orders in the
changing global configuration can alert us only to the immediate symptoms of
the difficulties posed by that new configuration, not to their underlying causes.
These underlying causes point us back to the structural shift mentioned in the
opening paragraph, and so to the second and deeper challenge posed to law by
globalization, and to a second difficulty with how the juristic agenda conceives
of and responds to that challenge. If, as already noted, we understand the inside/
outside, mutually exclusive pairing of constitutional and international law as
providing the juridical expression of the long-dominant Keynes-Westphalian
frame—which we may paraphrase as “state sovereigntist”7—and, in doing so,
as supplying the basic grid prescribing global relations among legal-normative

7
See Table One in the text, infra.
4 I•CON

orders, then clearly that state-sovereigntist “order of orders,” or metaprinciple of

authority, has been threatened in its position of preeminence. Crucially, how-
ever, the very challenge to the basic grid provokes a paradoxical response. To the
extent that the restoration of a settled framework of authority, in the face of new
uncertainty, is both perceived as an unprecedented opportunity and acted upon
as an urgent necessity in order to restate the basis of global legal order in terms
consistent with the familiar logic of a single overarching metaprinciple, this
impulse militates against either the reestablishment of the traditional state-
sovereigntist grid or its replacement by an equally dominant alternative. Here
the juristic agenda is implicated both as the messenger—as the reporter of broad
geolegal tendencies toward fragmentation—and as a source of further fragmen-
tation. For, as we shall see, contemporary legal thought is apt both to recognize
and, indeed, in some cases to sponsor a variety of different and inconsistent—
and thus potentially competing—candidate metaprinciples of authority, each
vying to reinstate or supplant the state-sovereigntist understanding, and to do so
in a way that seems to demand yet cannot supply some decisive basis for adjudi-
cating between them. In other words, what is recognized—and what tends to be
reinforced by that very recognition and, in particular, by the versatility of
attempts to resolve the problem so recognized—is the disappearance of any set-
tled, singular grid for defining the relations between legal orders. What we are
left with, in consequence, is a disorder of normative orders.
In the following two sections, a fuller explanation of the two basic preoccupa-
tions of the new agenda of global legal inquiry—the surface problem of bounda-
ries and the deep problem of the basic grid of authority—will be set out, and a more
detailed account provided of the emergent disorder of orders, which both informs
and tends to be reinforced by that new agenda. In conclusion, we will focus on the
other side of the coin; namely, on how a new method of thinking about the condi-
tions of global law and a new set of opportunities for pursuing this new approach
may emerge nonetheless from the problems and paradoxes of the old.

1. The centrality of the margins

The fact that so much contemporary juristic thinking on a global scale becomes
concentrated on boundary questions and disputes between legal orders is only
indirectly and remotely attributable to the long-standing bias within legal
research toward dispute-centered and, more specifically, court-centered mat-
ters8 and, thus, to a corresponding predisposition to seek out the comfortably
familiar. While an important factor, such a bias is less prevalent—and much less
uniformly so—than once was the case.9 However, circumstantial factors are of
8
See supra note 6.
9
On the particularly advanced process of mutual estrangement between the academy and legal
practice in the United States, see William Twining et al, The Role of Academics in the Legal System, in
THE OXFORD HANDBOOK OF LEGAL STUDIES 920–949 (Peter Cane & Mark Tushnet eds., Oxford Univ.
Press 2003).
Neil Walker | Beyond boundary disputes and basic grids 5

more immediate significance and provide a more solid justification for that con-
temporary focus. For with the loss of the earlier model’s neat, territorially coded
mutual exclusivity of jurisdiction, and with the proliferation of new legal orders
at subnational, supranational, international, and private levels, there are sim-
ply many more points of intersection than previously. What is more, these are
often of high-profile and palpable significance and typically are centered on the
courts as the authoritative interpreters of the legal orders in question.
In this regard, the contrast with the Keynesian-Westphalian frame is
marked. Under that frame and its state-sovereigntist understanding of consti-
tutional and international order, relations between courts are typically con-
strued either as presumptively vertical (if internal to a domestic constitutional
order) or as presumptively horizontal (if between domestic constitutional
orders).10 Within a constitutional order, there is typically a hierarchy both of
courts and of sources of law, albeit often incomplete, or with parallel chains
reflecting and tracing the distinctions between private and public law, civil and
criminal law, constitutional and administrative law, and so forth.11 Between
different domestic legal orders and the courts of these different domestic legal
orders—provided they do not stand in a legally recognized imperial relation—
the default relationship is, by contrast, one of mutual independence and so is
better understood as horizontal. Here, there is no presumption of hierarchy
but, simply, the contextually appropriate choice of law rules (in international
private law) or, more generally, the relevant interpretative assumptions as to
the more or less persuasive authority of foreign law operating at the margins of
each legal order. Moreover, such rules and the interpretative aids of trans-
national law do not “stand above” the domestic systems in which they are
applied. Rather, they are formulated or interpreted each in the context of their
own system—in deference to and under the self-validating terms prescribed by
each domestic legal order’s sovereign authority.
Under this same stylized state-sovereigntist model, the case of relations
between a domestic constitutional order and the international legal order,

10
The literature on legal pluralism would emphasize how much was invariably neglected and left
out of the dominant understanding supplied by such a stylized frame. See, e.g., JAMES TULLY, STRANGE
MULTIPLICITY; CONSTITUTIONALISM IN AN AGE OF DIVERSITY (Cambridge Univ. Press 1995); Brian
Tamanaha, Understanding Legal Pluralism, Past to Present, Local to Global, (St. John’s Legal Studies
Research Paper No. 07-0080, 2007). The effective selectivity of the dominant understanding,
however, is testament to (rather than a qualification of) its dominant status.
11
Indeed, an incomplete hierarchy of courts is often associated with an incomplete hierarchy of
normative authority, with the relevant causal relations running in either direction. Where the
constitution does not definitively situate all laws within a single Kelsenian Stufenbau, different
courts may be authorized to recognize different chains of legal authority, or, more actively, may
develop different conceptions of the appropriate hierarchy of justiciable sources of law in ways that
have further implications for the relationship of these courts inter se. On the French case, see, for
example, Alec Stone Sweet, The Juridical Coup d’Etat and the Problem of Authority, 8 GERMAN L.J. 915
(2007). On analogies between the French and the EU cases, see Jacques Ziller, National Constitutional
Concepts in the New Constitution for Europe, 1 EUR. CONST. REV. 452 (2005).
6 I•CON

more generally conceived, may be viewed as a rather special one, though one
that still does not fundamentally disturb the state-centered orthodoxy. Until
the middle of the last century, the presumed resolution of this matter was
deemed to differ depending upon whether the national system in question was
monist, thus acknowledging the immediate authority of international norms,
or dualist, and therefore requiring domestic transposition of these norms before
they could be considered operative.12 But even this did not create a deep prob-
lem at the level of the state-sovereigntist order of orders. In either case, it was
national courts acting under the auspices of national constitutions that
retained the final word within their jurisdictional boundaries, including the
final word on the very background decision of whether to conceive of them-
selves as monist or dualist. These courts retained, as well, the capacity to
enforce that final word. As a consequence, the monist-dualist distinction did
not announce two quite distinct and separate metaprinciples of legal authority
governed by two different concepts of the order of orders. Rather, the distinc-
tion remained a much more modest one involving two different conceptions of
the metaprinciple of state sovereignty under a single Keynesian-Westphalian
concept of the order of orders. Furthermore, it has been observed that, while
the monist-dualist distinction—always more categorical than was merited by
the actual pattern of relations between domestic orders and the international
order—gradually gave way in the post–Second World War years to a closer
attention to specific conflict rules based on the relative ranking of domestic and
international sources, this evolution did not disturb the status quo in an essen-
tial sense. For, once again, these rankings and the conflict rules they gener-
ated, derived from the constitutional fundamentals of the various host national
legal orders, whose sovereignty thereby remained sacrosanct.13
Yet this way of looking at matters is no longer adequate to a world in which
the overlap and interconnection between legal orders looks much denser—so
much so, in fact, that many new transnational legal forms have emerged in these
“in-between” places. In this new phase, the negotiation of the contested margins
of the old legal orders and of the various new legal forms themselves has ceased
to be a marginal concern. It is hard to grasp the richness of this development
with any simple taxonomy,14 although we may indicate, schematically, the fol-
lowing mutually supportive dimensions of the new post–Keynesian-Westphalian
relations of interconnection and interaction. They are, in sequence, relations of

12
ROSALYN HIGGINS, PROBLEMS AND PROCESS: INTERNATIONAL LAW AND HOW WE USE IT 210–217 (Oxford
Univ. Press 1994).
13
Mattias Kumm, Democratic Constitutionalism Encounters International Law: Terms of Engagement,
in THE MIGRATION OF CONSTITUTIONAL IDEAS 256–293 (Sujit Choudhry ed., Cambridge Univ. Press
2006).
14
But see, for example, in the context of EU law, the insightful preliminary scheme suggested by
European Court of Justice judge Allan Rosas; The European Court of Justice in Context: Forms and
Patterns of Judicial Dialogue, 1 EUR. J. LEGAL STUD. (Dec. 2007), available at http://www.ejls.eu/.
Neil Walker | Beyond boundary disputes and basic grids 7

institutional incorporation, system recognition, normative coordination, environmen-

tal overlap, and sympathetic consideration. These may be viewed in a descending
order of connective intimacy and of influence on the “host” by the “foreign” sys-
tem. One consequence is that each of the more intimate forms of connection
necessarily embraces the less intimate, but not vice versa. So, for instance, insti-
tutional incorporation necessarily implies system recognition, normative link-
age, environmental overlap, and sympathetic consideration, while each of the
lesser forms of intimacy need not presuppose the higher forms.
Let us examine, briefly, each of these in turn.

1.1. Institutional incorporation

Under this arrangement, the host normative order makes general provision for
the normative decisions of an external agency to be incorporated and, to that
extent, to be treated as authoritative within the host normative order. In its
developed form, such a close institutional embrace remains rare. Indeed, the
only mature example lies in the relationship between the European Union (EU)
and its member states. The fifty-year-old EU, with an open-ended jurisdiction
now much extended beyond its original aim to provide a single West European
market in goods, services, and capital, is clearly unique among nonstate legal
entities regarding the extent to which—and the range of matters over which—
it overlaps the territorial and functional jurisdiction of states.15 How is this
reflected in the quality of its legal accommodation by the member states? While
it remains controversial to what extent the institutional incorporation of the
supranational EU system by the national systems is explicit or implicit in the
founding treaty framework, and how much has been subsequently “read in”
by an activist European Court of Justice (ECJ),16 it is undoubtedly the case that
the treaty framework itself anticipates a high level of institutional interpene-
tration. This is true both at the legislative level, through provision for the direct
domestic applicability of certain types of European supranational law,17 and at
the judicial level, through the preliminary reference mechanism, whereby the
rulings of the ECJ on matters of interpretation or the validity of European
Community (EC) law must be treated as authoritative in the domestic legal
order of any of the member states by the relevant domestic referring court.18

1.2. System recognition

This also occurs in the context of highly iterative relations among legal orders.
Unlike institutional incorporation, in this form of relation no general institutional

15
See, e.g., JOSEPH WEILER, THE CONSTITUTION OF EUROPE, chs. 1, 2 (Cambridge Univ. Press 1999).
16
See, e.g., Julio Baquero Cruz, The Changing Constitutional Role of the European Court of Justice, 34
INT’L J. LEGAL INFO. 223–245 (2006).
17
Treaty Establishing the European Community, Nov. 10, 1997, 1997 O.J. (C340) 3 [hereinafter
EC Treaty], art. 249.
18
EC Treaty, arts. 234, 220.
8 I•CON

mechanism requires that recognition take place in the host system on the terms
dictated by the other system. Nevertheless, the relationship of unilateral or
mutual recognition is formalized by the host on a systemic level and, as such, is
understood as in some way intrinsic to the self-definition of the host system.
Perhaps the most obvious as well as the most general example of this proc-
ess is how domestic legal orders increasingly define themselves in a way that
involves recognition of some of the values and rules of the general interna-
tional legal order as automatically binding. Developments in domestic under-
standings of jus cogens and of norms possessing an erga omnes character have
signaled a general, if vague and uneven, movement away from a situation in
which international law was regarded largely as matter of jus dispositivum—
something for sovereign states to contract in or out of at will by treaty or other
agreement. Particularly in the burgeoning areas of transnational human rights
law, transnational trade law, and transnational criminal law, states increas-
ingly understand their subjection, and that of other states, to certain key inter-
national system norms—and, increasingly, the capacity of their own citizens
to rely directly on these norms—to be part and parcel of their self-professed
general status (qua states) as members of the “international community”19
and, thus, independent of norm-specific consent. Indeed, as we shall see, the
encouragement of the recognition by states of such a compulsory hierarchy of
international norms is a key impetus behind recent efforts to relabel much
international law as “constitutional” in quality.20
However, we can also see many examples of intersystem recognition among
new nonstate legal entities. Indeed, this is unsurprising insofar as such entities,
unlike states, did not originate as independent and exclusive legal orders. Rather,
as the offspring of agreements between such independent orders, these entities
have been genetically programmed from the outset to overlap other orders (state
and otherwise) in an increasingly crowded jurisdictional space. To return to the
case of the EU, we can see many examples of this. Intersystem recognition may
be specified and entrenched textually, as in the EU’s basic treaty obligation to
respect fundamental rights as guaranteed in the European Convention on
Human Rights21—the product of another nonstate legal entity, the Council of
Europe. Alternatively, intersystem recognition may flow from a general duty to
comply with other treaty obligations entered into with closely overlapping
regimes, as in the EU’s relationship with the World Trade Organization (WTO)22

19
On the “international community school” in international law, see, for example, Christian
Tomuschat, International Law: Ensuring the Survival of Mankind on the Eve of a New Century 281
RECUEIL DES COURS 9 (1999).
20
See section 2, infra.
21
EC Treaty art. 6(2); and, more emphatically, in the EU’s new obligation—amending EC Treaty
art. 6(2) in the (unratified) Treaty of Lisbon—to accede to the European Convention on Human
Rights; 2007/C 306/01.
22
See Case C-149/96, Portugal v Council, 1999 E.C.R. 8395.
Neil Walker | Beyond boundary disputes and basic grids 9

and the various other transnational regimes with which it is contractually

linked. Or recognition may even proceed without any clear textual or contrac-
tual basis and develop as a feature of judicial practice and precedent, as in the
EU’s controversial and as-yet-unresolved acceptance—on the basis of the sev-
eral obligations of its member states23—of the “higher” authority of UN Security
Council resolutions. In all such, cases, we see an inherently “relational”24 ele-
ment in the self-understanding and self-definition of the nonstate entity—a
sense that its normative purpose and its effectiveness alike are dependent on the
cultivation of a network of relations with other entities.

1.3. Normative coordination

By this we mean all other cases of coordination between normatively empow-
ered actors falling short of compulsory institutional incorporation or full sys-
tem recognition that, nevertheless, go beyond a “thin” bilateral or multilateral
connection between national legal orders by way of traditional international
legislation of the type familiar under the Keynesian-Westphalian frame. This
involves the development, often as a result of initiatives at the margins between
existing legal orders, of a whole range of intermediate legal forms that are less
structurally robust and normatively wide-ranging than the EU or other of the
more developed poststate polities, such as the WTO or the Council of Europe.
These forms, nonetheless, obtain a degree of autonomous institutionalization
beyond the bilateral or multilateral legislated will of states. By definition, this is
a vague category; however, it covers a large part of what is novel in the new
global legal order. Indeed, the various transnational regulatory regimes col-
lected under the rubric of the Global Administrative Law project25—all of
which are concerned with the way in which tasks we associate with the admin-
istration of general public goods or other collectively pursued “club goods”
increasingly take place across transnational spaces—capture well the diverse
range of this new kind of normative coordination and institutionalization.
These include the globally extended administrative and regulatory activities of
UN bodies such as the World Health Organization or the Financial Action Task

23
This has come to recent prominence in a case concerning the freezing of terrorist assets in
accordance with a UN Security Council resolution. For the original Court of First Instance litiga-
tion, in which a deferential approach to the Security Council found favor, see Case T-315/01, Kadi
v Council & Commission 2005 E.C.R. II-3649. For the less deferential reaction of the advocate
general in the subsequent appeal to the ECJ, see Case C-402/05, pending, Opinion of Advocate
General Poiares Maduro, Jan. 16, 2008. See, more generally, Robert Schutze, On Middle Ground: The
European Community and Public International Law (EUI Law Department, Working Paper 2007/13,
2007).
24
See also Neil Walker, EU Constitutionalism in the State Constitutional Tradition, 59 CURRENT LEGAL
PROBS. 51 (2006).
25
For an early manifesto, anticipating what is by now a vast literature, see Benedict Kingsbury,
Nico Krisch & Richard Stewart, The Emergence of Global Administrative Law, 68 LAW & CONTEMP.
PROBS. 15 (2004–2005).
10 I•CON

Force; informal transnational networks such as the Basel Committee consist-

ing of the heads of central banks; bottom-up “distributed administration”26
between national regulators with common and complementary objectives in
matters such as biodiversity conservation or nuclear safety; hybrid private/
public transnational administrative forms such as the industry-sponsored but,
significantly, now government-populated Internet Corporation for Assigned
Names and Numbers (ICANN); and, finally, purely private bodies such as the
International Standardization Organization, concerned with matters of prod-
uct harmonization, or the World Anti-Doping Agency, devoted to sports
ethics.

1.4. Environmental overlap

The development we focus on here is different in kind from the first three, but,
in significant part, is parasitical upon them. It is concerned not with the inter-
locking norms of different legal orders, or with the new and complex legal
forms created out of this interlocking, but with overlap in the social and eco-
nomic environments impacted by these different legal orders or by the various
new forms of regime they generate.27 The multiplication of circumstances in
which various laws emanating from different legal regimes can have an actual
or potential bearing on the same practical context and on the same actors
implicated in the same practical context inevitably accompanies the prolifera-
tion of transnational public, private, and hybrid forms of normative coordina-
tion, each of which possesses jurisdiction that is neither exhaustive, on the one
hand, nor neatly and narrowly demarcated, on the other. The social and politi-
cal significance of this new matrix has been analyzed in a number of different
ways: as increased functional specialization between epistemic communities,
the refined division of the prerogatives of mobile elites, the networked exten-
sion of a new methodology and culture of “governance,” or a self-reinforcing
acceleration of societal differentiation and fragmentation.28 However, what
cannot be denied is the uncoordinated jurisdictional logic of the regimes in
question. Each functional regime tends to have its special constellation of
stakeholders and a conception of relevant protected interests, situational
goods, and legal vires that reflects the particularity and partiality of the constel-
lation; the meeting of these self-referential systems can lead to novel conflicts,
uncertainties, and complexities.
A number of recent celebrated examples show this process at work. Take,
for instance, the long-running, transatlantically polarized dispute regarding
genetically modified organisms, which involves both the EU and WTO—where

26
Id. at 21.
27
See, e.g., Miguel Maduro, Interpreting European Law: Judicial Adjudication in a Context of
Constitutional Pluralism, 1 EUR. J. LEG. STUD. (Dec. 2007), available at http://www.ejls.eu/.
28
For a recent useful overview of a huge and diverse literature, see Martti Koskenniemi, The Fate of
International Law: Between Technique and Politics, 70 MOD. L. REV. 1 (2007).
Neil Walker | Beyond boundary disputes and basic grids 11

the WTO’s Sanitary and Phytosanitary Measures Agreement (SPS)29 is heavily

influenced by the less state-centered and more public health–dominated Codex
Alimentarius standards—as well as the Biosafety Protocol to the UN biodiver-
sity convention.30 Or consider the controversy over the possible environmental
effects of the operation of the MOX Plant nuclear facility at Sellafield in the
U.K., which involved litigation under the auspices of the EU, the United Nations
Convention on the Law of the Sea (UNCLOS), and the Convention on the
Protection of the Marine Environment of the North East Atlantic (OSPAR
convention).31 What we see in each of these cases, as in countless others, is a
multilayered overlap so dense, complex, and sensitive to differently situated,
nuanced conceptions of the public good that it makes no sense to try to identify
the proper law through resort to some two-dimensional notion of mutually
exclusive or unilaterally dominant jurisdictions. What is more, not only is
environmental overlap the product of the new density of normative connec-
tions but it can often produce its own secondary normative consequences, as
discrete normative systems with actual or potential overlapping practical envi-
ronments adjust to the implications of overlap.32

1.5. Sympathetic consideration

Here we are concerned with the “migration”33 of constitutional and other legal
ideas between legal orders—state or otherwise—in contexts in which the legal
orders in question are neither in an internal normative relation (as in catego-
ries one, two, and three, above) or in a relation of practical interlocking (as in
category four, above). Rather, we address, here, relations between discrete
legal orders of a type that would readily have been understood as presump-
tively horizontal under the two-dimensional Keynesian-Westphalian, state-
sovereigntist frame, and which for that reason are not often mentioned in the
same breath with the various, new “three-dimensional” relations considered

29
Agreement on the Application of Sanitary and Phytosanitary Measures, Apr. 15, 1994, Marrakesh
Agreement Establishing the World Trade Organization, Annex 1A, Legal Instruments—Results of
the Uruguay Round, 1867 U.N.T.S. 493 (1994).
30
Cartagena Protocol on Biosafety to the Convention on Biological Diversity, Jan. 29, 2000, 39
I.L.M. 1027 (setting forth “advance informed agreement” procedures to be used before importing
or exporting “living modified organisms” resulting from biotechnology).
31
For illuminating discussion of these and other cases, see Nico Krisch, The Pluralism of Global
Administrative Law, 17 EUR. J. INT’L L. 247 (2006).
32
For example, as in the case of “regulatory competition” between legal orders, where regulators
deliberately set out to provide a regulatory framework preferable to available alternatives in order
to encourage potential users for whatever reasons (for example, promotion of economic interests
in a particular territorial or functional sphere; promotion of a particular set of values over another)
to operate within that framework rather than the available alternatives. On the theoretical foun-
dations of the theory of regulatory competition, see Charles M. Tiebout, A Pure Theory of Local
Expenditures, 64 J. POL. ECON. 416 (1956).
33
See THE MIGRATION OF CONSTITUTIONAL IDEAS, supra note 13 .
12 I•CON

above. It is, nevertheless, appropriate to consider such relations as belonging

to the same pattern of interconnection as the other four categories, and this for
both interpretative and causal reasons.
In interpretative terms, it is important to note that, in many cases, the prac-
tice of consulting system-external sources in the courtroom, or indeed in the
legislative chamber,34 does not necessarily depend upon the presence of a struc-
tural interconnection of the type set out in the four categories already described.
This takes us to the heart of what is intended by “sympathetic consideration.”
To give sympathetic consideration is to consult a system-external source on the
premise that there exists some ground of common understanding or affinity for
taking that external source seriously. Such common understanding or affinity
can cover a wide range. It can operate on relatively modest cognitive grounds—
a search for close analogies in other systems on the pragmatic assumption that
like problems and predicaments will produce like considerations for their solu-
tion.35 Or it can take as its point of departure a much more ambitious sense of
different contemporary orders gradually coming to share the same general, or
even universal, moral grounding in human rights or other constitutional val-
ues, and thus always providing persuasive authority inter se.36
What is more, turning to causal factors, we may observe that the more inti-
mate forms of structural interconnectedness (to which the general process of
globalization speaks and to which the other four categories of legal or practical
interconnectedness bear witness) are often cited or, at least, tacitly understood
as important background reasons for the broader movement in favor of a more
sympathetic consideration of external sources. In a world of increasingly com-
mon predicaments, interdependence, and interlocking fates—so it is often
argued—we both urgently require and are better able to cultivate a more cos-
mopolitan sensibility, one in which the ethical boundaries between particular
communities follow the lead of their practical boundaries in becoming more
porous and less distinct.37
As is well known, this whole approach is also received skeptically in many
circles. Nowhere is this skepticism more prominent than among some members

34
See, e.g., JEREMY WALDRON, THE DIGNITY OF LEGISLATION (Cambridge Univ. Press 1999).
35
As, for example, in the “experimentalist” writing of Charles Sabel and his collaborators; see, e.g.,
Michael Dorf & Charles Sabel, A Constitution of Democratic Experimentalism, 98 COLUM. L. REV. 267
(1998).
36
There are countless examples of this, from the so-called dominant “postwar constitutional
paradigm” based upon an integrated set of national and international safeguards of human
rights, democracy, and equal citizenship; see Lorraine Weinrib, The Postwar Paradigm and
American Exceptionalism, in THE MIGRATION OF CONSTITUTIONAL IDEAS, supra note 13, at 84; to more
limited “normative families,” such as those collected under the labels of “common law constitu-
tionalism”; see, e.g., Thomas Poole, Back to the Future? Unearthing the Theory of Common Law Con-
stitutionalism, 23 OXFORD J. LEG. STUDS. 435 (2003).
37
See, e.g., HELD, supra note 4 .
Neil Walker | Beyond boundary disputes and basic grids 13

of the U.S. Supreme Court. Those who adhere to a state-sovereigntist under-

standing of the Constitution, backed up with originalist or textualist principles
of interpretation, maintain that apart from cases where, on the facts, there is,
indeed, a clear structural reason in domestic law for taking account of a non-
system rule, no special sympathetic consideration should be taken of foreign
and international judgments.38 Yet the very vehemence of this refusal, together
with the fact that it is an issue that palpably divides the Supreme Court,39 is
simply further testimony to a growing awareness of how much is at stake—and
how much is controversial—in a post–Keynesian-Westphalian understanding
of the relationship between legal sources.40

2. The new disorder of orders

Against this rapidly shifting backdrop, it becomes apparent why both
the descriptive accuracy and the prescriptive authority of the Keynesian-
Westphalian frame have come under sustained attack. States are now joined
by a plethora of other autonomous or semiautonomous units of legal order
within the global configuration, and each of these units must negotiate their
boundary relations inter se as well as with the states themselves. What is more,
the terms on which states are joined by these units are increasingly competi-
tive. In response to and reinforcing the decline in the traditional coincidence of
government, peoplehood, and political and economic capability that under-
girded the state-centered Keynesian-Westphalian frame, these other units are
more and more apt to emulate or even to outstrip the state in terms of one or
more of the generally recognized indices of effective sociopolitical capacity—
whether this be democratic representativeness,41 scope and depth of jurisdic-
tion, protection of individual rights or minority interests, functional expertise,
administrative capacity, responsiveness to diverse opinion, or the ability to
ensure compliance of affected parties.42 It is this double development—the shift
away from the centrality of the state in both legal and sociopolitical registers—

38
In particular, Justice Antonin Scalia. See his exchange with Justice Stephen Breyer in A
Conversation between US Supreme Court Justices, 3 INT’L. J. CONST. L. (I•CON) 519 (2005).
39
See, e.g., Lawrence v. Texas, 539 U.S. 558 (2003), and A Conversation between US Supreme Court
Justices, supra note 38.
40
See, e.g., Jeremy Waldron, Foreign Law and the Modern Ius Gentium, 119 HARV. L. REV.129
(2006).
41
This is the least likely claim to be made and is, for many, seen as the most fundamental weakness
of postnational legal forms; see, e.g., Dieter Grimm, The Constitution in the Process of Denationaliza-
tion, 12 CONSTELLATIONS 447 (2005). See also Esty, infra note 42; and de Burca, infra note 42.
42
For recent overviews of the comparative legitimacy of state and poststate sites of governance, see,
e.g., Daniel Esty, Good Governance at the Supranational Scale: Globalizing Administrative Law, 115
YALE L.J. 1490 (2006); and Grainne de Burca, Developing Democracy Beyond the State, 46 COLUM. J.
TRANSNAT’L L. (2008).
14 I•CON

that, in turn, produces a double challenge at the level of boundary negotiation

and intersystemic relations more generally. Not only, as noted, are there just
more areas of overlap and marginal contestation on the surface of legal rela-
tions, but there is no single deep metaprinciple of authority—such as state sov-
ereignty, with its structurally simple matrix of horizontal and vertical authority
relations—to provide a dominant overall grid for the conduct of these marginal
relations.
Instead, as we see in Table One below, there are various contending global
metaprinciples of legal authority, or “orders of order.” There remains a residual
state-sovereigntist position; now, however, it competes for ascendancy with
hierarchical, unipolar, regional, integrity-based, legal-field, and pluralist
approaches. Closer examination reveals yet further complexity and so, appar-
ently, even greater scope for irresolution. For with each of the candidate meta-
principles we find distinct subvariations, with strong and exclusive models, on
the one hand, and, on the other, more moderate designs. Yet, tellingly—as we
shall see—we may be able to draw a quite different message from this trend. The
further diffusion of the range of metaprinciples of authority may also imply the
defusion of the grounds of their mutual difference, since the more moderate

Table One. Global Metaprinciples of Legal Authority

Metaprinciple of legal Strong and exclusive Moderate and contributory

authority, i.e., order application application
of orders

1. State sovereigntist Realism—old-fashioned liberal internationalism

“anarchy”43 of the international
system
2. Global hierarchical World government Pyramid structure
with some cosmopolitan
norms/institutions
3. Unipolar Pax Americana Global liberal hegemon
4. Regional Divided world order New balance between different
regional conceptions of
constitutional/international order
5. Integrity Universalizability of norms Coherence of conflict norms
across orders between orders (e.g.,
proportionality and balancing)
6. Legal-field discursive Particular legal field as Extension and application of
(e.g., international master discourse of law discourse of conceptualization
constitutional law, and imagination associated with
global administrative law, a particular legal field to the
new “ius gentium”) global level
7. Pluralist New anarchy of legal “Bottom up” countervailing
forms and relations power model

43
HEDLEY BULL, THE ANARCHICAL SOCIETY: A STUDY OF ORDER IN WORLD POLITICS (Columbia Univ. Press
1977).
Neil Walker | Beyond boundary disputes and basic grids 15

versions do not seek or, at least, do not require exclusive status but may, instead,
accommodate the moderate versions of at least some of the other metaprinciples.
Before we can pursue this hypothesis, however, we must first examine each of
the candidate metaprinciples in turn.
The residual state-sovereigntist metaprinciple divides along familiar lines.
On the one hand, there is an old-fashioned realist position. Precisely because it
denies any intrinsic, noninstrumental value to law, realism is a position more
securely domiciled within the cognate discipline of international relations than
with legal science itself.44 For the realist, the law reflects—and given the incor-
rigibility of the international state of nature—cannot but reflect a precarious
balance of power between states.
On the other hand, there is a more liberal position in which states remain
ontologically prior in the global order yet are capable, through law, of achiev-
ing stable cooperation, albeit a cooperation based on a common interest in
peace and reliable commitments and on mutual respect for overlapping visions
of the public good,45 rather than on some sense of a thick normative consensus.
Granted, the legacy of support for both of these positions remains strong and
international circumstances may periodically conspire to reaugment their
empirical significance; moreover, the liberal position, unlike the realist position,
is not wedded to the kind of geosocial naturalism that cannot countenance the
sustained relevance of actors other than states at the global level.46 Nonetheless,
neither version of the state-sovereigntist position can fully respond to the post-
Westphalian challenge other than through a Sisyphean reassertion of an
unquestioned authority to which that very challenge poses a standing rebuke.
The next three metaprinciples, in their various ways, privilege a vertically sup-
ported framework of authority. Each of the global-hierarchical,47 unipolar,48 and
regional models49 is cited in its strong version in the ideological struggle to fill the
space evacuated by the Keynesian-Westphalian model; however, more often this
is done in a negative rather than positive spirit—less as a utopia to be pursued
than as a dystopia to be avoided. But behind these familiar surfaces of rhetorical

44
On how much of contemporary international law theory is defined against realism, see
Anne-Marie Slaughter, International Law in a World of Liberal States, 6 EUR. J. INT’L L. 1 (1995).
45
See, e.g., JOHN RAWLS, LAW OF PEOPLES (Harvard Univ. Press 1999).
46
See, e.g., ANDREW MORAVCSIK, CHOICE FOR EUROPE: SOCIAL PURPOSE AND STATE POWER FROM MESSINA TO
MAASTRICHT (Cornell Univ. Press 1998).
47
For an instructive history of schemes of world government from Kant to contemporary cosmo-
politanism, see Catherine Lu, World Government, STANFORD ENCYCLOPEDIA OF PHILOSOPHY, Winter 2006,
http://plato.stanford.edu/entries/world-government.
48
See, e.g., Thomas Donnelly, Brave New World: An Enduring Pax America, American Enterprise In-
stitute Online (Mar. 25, 2003), at http://www.aei.org/publications/pubID.16710/pub_detail.asp.
49
See, e.g., ROBERT KAGAN, PARADISE AND POWER: AMERICA AND EUROPE IN THE NEW WORLD ORDER (Albert A.
Knopf 2003); ROBERT COOPER, THE BREAKING OF NATIONS: ORDER AND CHAOS IN THE 21ST CENTURY (Atlantic
2004).
16 I•CON

opposition, each metaprinciple resonates more strongly and is more likely to

attract reasoned affirmation in a moderate version. A modestly tiered, cosmopoli-
tan program constructed at the global level around security and human rights
protection, with further layers of regional and state-level jurisdiction organized in
accordance with the appropriate scale of the collective-action problems in ques-
tion, is a position favored across a range that embraces pragmatic UN reformists,
on the one hand, and moderate cosmopolitans such as Jürgen Habermas, on the
other.50 For its part, the liberal-hegemon position, in which post–Cold War U.S.
military dominance is treated not just as a brute datum but as a way of guaran-
teeing the simulation—in an “empire-lite”51 form—of the conditions of liberal
internationalism, is a position that has remained attractive to a brand of North
American opinion opposed to the more nakedly self-interested models of Pax
Americana, which had gained a foothold in the Bush administration in the period
after 9/11. Finally, the rise of American power, in concert with the consolidation
of a more self-consciously outward-looking regional power in the EU—a some-
what neglected motivation behind the latter’s recent, and recently aborted, con-
stitutional project52—and, more embryonically, in other geographical trading
blocks, has also encouraged an approach within which the coexistence of differ-
ent regional sensibilities within global law is countenanced.53
The next two metaprinciples set out in Table One—the integrity and the
legal-field discursive approaches—tend, by contrast, to privilege a horizontally
supported framework of authority. The integrity approach ranges from a uto-
pian normative universalism, which would replace or complement the world
government of the strong version of the hierarchy approach with a world com-
munity of value,54 to a more modest coherentism. This more reticent approach
readily recognizes the existence and defensibility of different levels and orders
in the global mosaic, each with distinct sources, priorities, and value prefer-
ences. Yet it seeks a shared set of general principles—one increasingly influen-
tial version centers on the expansive epistemic claim of the principle of
proportionality and the method of balancing55—that, nevertheless, would

50
See, in particular, JÜRGEN HABERMAS, THE DIVIDED WEST (Polity 2006). For a critical overview, see
Michel Rosenfeld, Habermas’ Call for Cosmopolitan Constitutional Patriotism in an Age of Global Ter-
ror: A Pluralist Appraisal, 14 CONSTELLATIONS 159 (2007).
51
See, e.g., MICHAEL IGNATIEFF, EMPIRE LITE (Vintage 2003).
52
On this neglected external dimension, see Grainne De Burca, The Drafting of a Constitution for the Euro-
pean Union: Europe’s Madisonian Moment or a Moment of Madness?, 61 WASH. & LEE L. REV. 555 (2004).
53
See, e.g., Jeb Rubenfeld, The Two World Orders, THE WILSON QUARTERLY, Autumn 2003, at 22.
54
See Lu, supra note 47; and the references at supra note 36.
55
The locus classicus of this approach is ROBERT ALEXY, A THEORY OF CONSTITUTIONAL RIGHTS (Julian Riv-
ers trans., Oxford Univ. Press 2002); on the reasons why proportionality and balancing have
proved particularly suited to adjudicating large competing claims at the transnational boundaries
of legal systems, see Alec Stone Sweet, Proportionality, Balancing and Global Constitutionalism (un-
published manuscript 2007).
Neil Walker | Beyond boundary disputes and basic grids 17

provide a coherent framework for deciding on the optimal relationship between

levels and orders in any particular dispute setting.56
For their part, legal-field discursive approaches tend to draw upon a particu-
lar domain of law, familiar under an earlier authoritative grid, and to treat this
field perspective as the basis for the creation of a new “discourse of conceptuali-
zation and imagination”57 at the metalevel of the new order. This we see, for
example, in current attempts to adapt and extend the first-order Keynesian-
Westphalian concepts of constitutional law and administrative law, or to
revive the more venerable second-order metaprinciple of ius gentium.58 Just
because these fields are affected by the conditions of their formation under the
older frame and, indeed, may remain more familiar in that earlier guise, such
approaches risk being dismissed as incongruous, marginal, or redundant con-
tributions to the new frame. Yet we should not underestimate the suggestive
power of “naming”59 and of the new “narrative perspectives”60 invited by such
naming—that is, the potential for transforming our collective sense of the
meaning and normative significance of new juridical objects by recoding them
in old terms. The recent mobilization and pursuit of the idea of international
constitutional law,61 for example, seeks to persuade its audience of the lexi-
cal,62 institutional,63 or ideal-normative64 priority of particular features of the
international or transnational level of law over the national level.
In like manner, the wide range of novel regulatory forms captured under
the umbrella of the Global Administrative Law project65 conveys a sense of the

56
See, e.g., Mattias Kumm, The Legitimacy of International Law: A Constitutionalist Framework of
Analysis, 15 EUR. J. INT’L L. 907 (2004), in which it is claimed that a minimum, and minimally
legitimate, coherence of the global order depends upon the interplay of four key principles—formal
international legality, subsidiarity, adequate participation and accountability, and reasonable and
rights-respecting outcomes.
57
WEILER, supra note 15, at 223 (with specific reference to the development of a constitutional
discourse in the EU).
58
See Waldron, supra note 40 ; see also Jeremy Waldron, Partly Laws Common to all Mankind, Yale
Law School Storrs Lectures (Sept. 10–12, 2007).
59
Susan Marks, Naming Global Administrative Law, 37 N.Y.U. J. INT’L L. & POL. 995 (2006).
60
See Koskenniemi, supra note 28, at 369.
61
See, e.g., Armin Von Bogdandy, Constitutionalism in International Law: Comment on a Proposal
from Germany, 47 HARV. INT’L L.J. 223 (2006).
62
See, e.g., Erika de Wet, The International Constitutional Order, 55 INT’L & COMP. L.Q. 51 (2006).
63
With reference to the central role of the United Nations, see, for example, Bardo Fassbender, We
The People of the United Nations: Constituent Power and Constitutional Form in International Law, in
THE PARADOX OF CONSTITUTIONALISM, supra note 3, at 269.
64
See, e.g., Weinrib, supra note 36; Ingolf Pernice, Multilevel Constitutionalism and the Treaty of
Amsterdam: European Constitution-Making Revisited?, 36 C.M.L.R. 703 (1999).
65
See Kingsbury, Krisch & Stewart, supra note 25.
18 I•CON

legitimate translation from the national level of certain key legal principles of
good public administration—such as reason giving and audi alterem partem—
and their application within and between different transnational regimes.
Similarly, the renewed interest in a precursor of modern international law
such as the ius gentium—understood as a kind of universal law for noncitizens
that is recognized by each polity to complement its particular law for citizens—
speaks to a similar attempt to find in the broader and deeper legacy of nonstate
law the principle and resources of field organization necessary to imagine and
construct a new set of global legal relations.66 Moreover, while these field
approaches can sometimes be presented in a manner that appears to claim
hegemonic status, their deeper message tends to be more inclusive. Because
they are essentially ways of reordering and reconstructing the existing materi-
als of law rather than discarding and supplanting them, in the final analysis
they are inclined to be accommodating of other perspectives in the universe of
authority rather than exclusive in their meta-authoritative ambition.
Finally, there is a range of pluralist approaches, again with an important dis-
tinction to be drawn between strong and moderate versions. The strong
approach displays striking parallels with the naturalist realism of the strong ver-
sion of the state-sovereigntist approach. Under this perspective, the new state of
nature is no longer an anarchy of formally identical states but an anarchy of
highly differentiated units or nodes of legal authority. This line of analysis has
been criticized for being too easily seduced by the exotically diverse character of
the landscape it contemplates and, thus, for a consequent tendency—whether
fatalistic or complacent—to “cease to make demands on the world”67 and,
instead, simply to describe and accept it.
Yet alongside this naturalistic approach there are more prescriptive
approaches whose aims are not to celebrate pluralism for its own sake but to
try to draw out some positive normative dividend or lesson from its incidence.
This kind of pluralism we find prevalent in studies of the post–Keynesian-
Westphalian openness of particular intersystemic relations, notably as regards
the perennially unresolved authority relations between the EU and its member
states.68 However, we also find it increasingly applied, in a generic fashion,
across the wider canvas of new global legal relations.69 In this broader pre-
scriptive mode, pluralism tends to emphasize the advantage of a “bottom up”
evolutionary landscape of diverse legal orders over a “top down” programmed
arrangement. This advantage may be seen in a variety of ways: in terms of the
greater capacity of each order to check and counter the legitimacy deficits and
66
See Waldron, supra note 40, and Waldron, Storrs Lectures, supra note 58.
67
See Koskenniemi, supra note 28, at 23.
68
See, e.g., Walker, supra note 2; Maduro, supra note 27.
69
See in particular Krisch, supra note 31; Nico Krisch, The Open Architecture of European Human
Rights Law, 71 MOD. L. REV. 183 (2008); Paul S. Berman, Global Legal Pluralism, 80 S. CAL. L. REV.
1155 (2007).
Neil Walker | Beyond boundary disputes and basic grids 19

to moderate the excesses of the others; in terms of pluralism’s encouragement

of tie-breaking compromise or dialogue; in terms of its propensity toward equal
recognition of different and diverse constituencies and their corresponding
legal regimes; and in terms of a general willingness to recognize and embrace
the emergence of new such constituencies and regimes.

3 Conclusion: Coming to terms with disorder

What does the simultaneous promotion of so many candidate global metaprin-
ciples of legal authority, in place of the dominant Keynesian-Westphalian
metaframe, suggest about the stability and direction of the newly emerging
global legal configuration, and about the role of the juristic agenda within this?
And how, if at all, might we envisage further refinements of the juristic agenda
in response? Three linked conclusions address these questions.
In the first place, regardless of the persuasiveness, or otherwise, of the claims
made on behalf of the various candidate metaprinciples, none of them is likely
to achieve the kind of hegemonic ascendancy once held by the Keynesian-
Westphalian frame. This is true—if less obviously so—even of the pluralist posi-
tion and even though its logic of assertion is quite different from any of the
others. Rather than proposing an alternative order of orders, pluralism proposes
a kind of “nonorder” of orders, in which no general steering mechanism is avail-
able to frame the relations between orders; instead, any such relational complex
(with the attendant virtues of countervailing power) emerges serendipitously
out of the undirected interaction of the parts. Yet, importantly, such a distinc-
tive logic of assertion does not relax or otherwise alter the criteria of success. For
the pluralist nonorder to prevail, in any comprehensive sense, this will depend—
as does the comprehensive success of any of the other metaprinciples—not just
on the failure of any other candidate metaprinciple to achieve a position of pre-
dominance but on the failure of any other candidate metaprinciple to achieve
even a modicum of structuring influence. To the extent that traces of the state-
sovereigntist, pyramidal, liberal hegemonic, regionalist, coherentist, and legal-
field discursive models can be seen in the ordering of global legal relations, there
can be no tabula rasa on which a pure form of bottom-up pluralism may develop.
This, indeed, indicates the deep sense in which it is important to conceptualize
and understand the emerging configuration as a (candidate-neutral) disorder of
orders rather than a (pluralism-favoring) nonorder.
In the second place, however, to return to a theme briefly intimated earlier,
it is remarkable that—once we dismiss the strong headline versions of the com-
peting metaprinciples, which are primarily concerned with the rhetoric rather
than the practice of geopolitics and geolaw—the more moderate versions stand
in a different kind of relationship to one another. Not only need they not be
mutually incompatible but we can actually see in the dynamics of their respec-
tive development some kind of active recognition of this; either a degree of mod-
esty of ambition and an awareness that they cannot provide a comprehensive
20 I•CON

metaprinciple or a degree of developmental openness to the other metaprinci-

ples. For example, some versions of residual state-sovereigntist or pluralist
models can be read as self-consciously partial and selective metaprinciples, as
can some versions of the three modestly framed vertical metaprinciples—
pyramidal, unipolar, and regionalist. So, too, coherentist models and, more
expressly and expansively, legal-field discursive models can be seen as open to
and reconstructive rather than dismissive of the claims apparent, implicitly or
explicitly, in other candidate metaprinciples. On this view, the disorder of orders
need not be viewed as a cacophony of infinitely discordant voices, as an unre-
strained and unrelenting process of metalevel agonism. Rather—in theory, at
least—it may contain within it space for some kind of reconciliation among dif-
fering framing possibilities.
But how, if at all, might practice come to vindicate theory? In order to
explore whether and how any such reconciliation between the more modest
variants of the metaprinciples could take place, it is required of us—in the third
place—to return, one last time, to the paradox of contested authority at the
center of the post–Keynesian-Westphalian predicament. The emphasis in this
concluding discussion, however, is no longer on how that predicament is
brought about, but on how it might be overcome.
On the face of it, this presents a formidable challenge. First, we must accept
that the disorder of orders, considered as an accomplished and ongoing state of
affairs, concerns the absence of transunit agreement in the presence of multiple
competing candidate metaprinciples about how we should best resolve the rela-
tions between the different units of legal, political, and moral ordering in the
world. Second, any such resolution, in turn, would have implications for which
version (and whose version) of just ordering should prevail in any particular
case or category of cases. That being so, we have no option but to attempt to
renegotiate any such metalevel agreement within precisely the same geopolitical
framework and culture of contested authority we are seeking to resolve. In
other words, as we seek to stabilize the ground beneath our feet, we cannot
stand upon anything other than that same unstable ground.70
The paradoxical quality of the reflexive treatment of contested authority
manifests itself in two problems. In the first place, there is a legitimacy problem.
Who should get to decide how we specify the optimal global relation between
decision-making units? In the second place, there is a capability or initiative
problem. Who is in a position to wield influence effectively—who can decide
how we specify the optimal global relation between decision-making units?

70
A similar paradox of contested authority may be noted at lower levels within the global order,
particularly in the EU, where the recent preoccupation and failed experiment with documentary
constitutionalism speaks to the same lack of sufficient common investment in a single metatech-
nique (in this case a constitutional process) for resolving authority conflicts (both among states
and between states and the center). Again, the failure of the solution method is itself a symptom of
the problem. See, e.g., Walker, supra note 24.
Neil Walker | Beyond boundary disputes and basic grids 21

The legitimacy and the capability problems are but two sides of the same coin.
On the one hand, the fact that a particular institution or agency happens to
hold a position to influence the renegotiation of the basis for meta-authority in
the contested global meta-authority system—say, the U.S. government, the
UN Security Council, or the EU Commission—is itself a question-begging func-
tion and a product of that contested meta-authority system. On the other hand,
so deeply contested is the meta-authority system that it is difficult to see a basis
on which any group of even putatively legitimate stakeholders might act, with
sufficient trans-systemic support, to make a decisive difference in favor of any
one particular metaprinciple.
But while the paradox of contested authority, with its dual problem of legiti-
macy and capability, evidently rules out the restoration of a single, dominant
metaprinciple of authority, does it also rule out the practice of reconciliation
among multiple metaprinciples, each more modestly conceived, which we
have suggested as a less dogmatic basis for the post–Keynesian-Westphalian
configuration? To answer that question requires us to identify those categories
of actors and those sites of activity that—while they cannot be privileged absent
any settled, single meta-authoritative principle—nevertheless carry sufficient
legitimacy and enjoy sufficient capability, within the present shifting constella-
tion, to be involved in any defensible and plausible ongoing meta-authoritative
process. We must then ask what kind of contribution these categories can
make, separately and together, to a constructive practice of reframing with ref-
erence to diverse candidate metaprinciples. Three such categories of actors and
sites of activity stand out—popular, judicial, and epistemic.
First and foremost, there are the popular sites. To return to the beginning,
the decline of the Keynesian-Westphalian frame, while it has profound legal
repercussions, remains, at root, the erosion of a political settlement. This was a
settlement in which the idea of democratic representation operated in a two-
link chain through the internal medium of the state and the external medium
of the interstate system. To the extent—which is considerable—that political
power is no longer exclusive to these two media so democratic representation
requires realignment to the new points at which power is articulated. Yet to
the (equally considerable) extent that the terms of this rearticulation and redis-
tribution of political power are themselves in flux and contested, the higher
democratic priority lies within the “politics of framing”71 itself. Here, of course
we encounter a paradox of representation to mirror our broader paradox of
authority. The ever-intensifying debates regarding global and regional civil
society and how they should bear upon and figure within global and regional
institutions and constitutions are revealing.72 What these disputes demon-
strate is that claims for a representative basis sufficient to justify influence over

71
Fraser, supra note 1, at 75.
72
See, e.g., JOHN KEANE, GLOBAL CIVIL SOCIETY (Cambridge Univ. Press 2003).
22 I•CON

or involvement in new forms of representation tend to be made in contexts

where the available forms of representation themselves may be obsolete,
unformed, or underdeveloped, making their legitimacy contestable.
This state of affairs, of course, does not rule out bootstrapping forms of demo-
cratic renewal—or “democratic iteration.”73 But it does underline the point
that neither the democratic principle itself nor the preferences of those agents
who claim to be empowered by the democratic principle can supply the whole
answer to the question of the appropriate forms and conditions in terms of
which democracy is constituted, distributed, and interconnected.74 A key point
of the present essay has been precisely to demonstrate that other and deeper
metaprinciples of authority are required, and that other key constituencies
operating at other sites, which pass the relevant legitimacy and capability
threshold, have to be involved in the negotiation of these factors.
The judiciary comprises one such key constituency. Boundary disputation,
as we have seen, may be the symptom rather than the deep cause of the post–
Keynesian-Westphalian authority predicament. But the very frequency with
which this symptom is brought to the notice of judges, as the guardians of the
jurisdictional borders of legal orders and as the last-instance umpires of inter-
system disputation, means that they emerge as recurrent and indispensable
players in the meta-authoritative process. Here, legitimacy—the idea of some
kind of trans-system authority of judicial reasoning and capability—their
default role in intrasystem maintenance, combine significantly to empower
higher judges.
Of course, this empowerment provides no guarantee that such judges, in
fact, will do anything other than simply deal with the symptoms, without con-
sideration of the deeper problem of meta-authority. However, as some senior
judges become increasingly habituated to these new circumstances of endemic
interjurisdictional disputation, there is evidence that they do become more
open to exploring deep causes. As one judicial figure operating in the EU con-
text has remarked in an extracurricular context, judges accustomed to work-
ing at the margins of legal orders must—and do—increasingly engage in
“meta-teleological”75 reasoning. That is to say, they must—and do—look not
simply to the wider telos and justification of the relevant rules at issue but also
to the wider telos and justification of the very legal order responsible for these

73
SEYLA BENHABIB, ANOTHER COSMOPOLITANISM, ch. 1 (Oxford Univ. Press 2006).
74
This is quite separate from and logically prior to the criticism that, at some poststate sites and for
some poststate jurisdictions, democratic arrangements are simply not socially viable, logistically
possible, or technically appropriate as a mode of decision making. See Esty, supra note 42; and de
Burca, supra note 42.
75
Maduro, supra note 27, at 5.
Neil Walker | Beyond boundary disputes and basic grids 23

rules, and to how this wider telos is informed by the host legal order’s relation-
ship with adjacent legal orders.
This brings us to our third and last key constituency—back to the legal
academics and professional commentators centrally implicated in the setting
and pursuit of the juristic agenda. When we assess the credentials for the
involvement of this group in the meta-authoritative process, the question of
legitimacy collapses entirely into the question of capability. The juristic agenda
setters have no title and no standing other than what accrues to them given
their capacity to throw light on the predicament of meta-authority and, per-
haps, to suggest ways of addressing that predicament. As we have sought to
argue, in some respects the juristic agenda setters have remained too much in
thrall to an older regulatory culture—and, in particular, to the aspiration of a
single metaprinciple of authority—to be particularly effective in the task of
either diagnosis or treatment. Yet, for all that they often remain in the reactive
shadows of events, the very looseness and permissiveness of the deep structure
of these events also allow juristic agenda setters independence and room to
maneuver. Precisely because the global legal configuration, unlike the partic-
ular legal orders within that configuration, has no central institutional hier-
archy of a political, administrative, or even judicial form—and did not
possesses one even in the relatively settled Keynesian-Westphalian phase—
those theorists and commentators who set and follow the agenda of inquiry
into that global configuration become, of necessity, its key and unusually
privileged “symbolic analysts.”76 On the one hand, no one is authorized by the
whole to speak for the whole. On the other, no one else is as well equipped to
find the critical distance necessary to imagine or reimagine the unauthorized
whole.
It is this convergence of circumstances that opens up such a suggestive link
between the conceptual framing of global authority relations of the juristic
agenda setters and the framing of global authority relations understood as a
legitimate and effective social and political accomplishment. As already noted,
this is something perhaps most clearly glimpsed and most productively
exploited by the sponsors of the various versions of the coherentist approaches
and, even more so, the legal-field discursive approaches. Yet this kind of
agenda-setting initiative cannot hope to treat the predicament of meta-
authority effectively if it is intended and received in an ideological fashion.
That is to say, it cannot simply be an exercise in relabeling, one designed to
put a more acceptable veneer on but not otherwise add value to the justifica-
tion of a controversial and contestable posture in legal authority relations—
whether it be a new “constitutional” hierarchy of some international law

76
ROBERT REICH, THE WORK OF NATIONS: PREPARING OURSELVES FOR 21ST CENTURY CAPITALISM (Alfred A
Knopf 1991).
24 I•CON

sources over national law77 or an extension of a “subpolitical” sphere of

“administration” and administrative law to the nonstate sector. Rather, and
this is crucial, such an agenda-setting initiative must be pursued with a view
to persuading the other constituencies—judicial and political, with their
indispensable roles to play in the meta-authoritative process—to consider,
accept, and act on the new conceptualizations in ways that transform their
meaning and broaden their legitimacy. Indeed, only if an initiative is pursued
in this more explicitly communicative, jurisgenerative spirit can the agenda
of global legal science ever hope to do more than simply reflect the progress
and note the gathering symptoms of the predicament of state-decentered legal
authority.

77
For criticism of the tendency of some exercises in “international constitutional law” to do little
more than invoke the vocabulary of constitutionalism in order to dignify existing arrangements,
see Neil Walker, Making a World of Difference? Habermas, Cosmopolitanism and the Constitutionalization
of International Law, in MULTICULTURALISM AND LAW: A CRITICAL DEBATE 219–234 (Omid Shabani ed.,
Univ. Wales Press 2007).