when-legal-orders-collide
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Abstract

State sovereignty is becoming diluted. Public power is being rearticulated in pluralistic and polycentric forms. National legal orders must confront problems that are beyond their capacity to resolve alone. And onto these legal orders are superimposed a number of others, on many different levels.

This pluralism requires an order: to fill in the gaps, reduce fragmentation and induce cooperation between the different systems; to establish hierarchies of values and principles; and to introduce rules on the recognition, validity and effectiveness of norms. In the absence of a superior legal order that imposes order among the “inferior” ones, each must find within itself the instruments for cooperation with the others. And within each, it is only governments and parliaments that have responsibility for foreign policy. Yet there exist neither governments nor parliaments beyond the State; at the same time, within States, “foreign policy” has become too complex to be managed by governments alone.

Judicial bodies are, however, also present in the legal space beyond the State: indeed, more than one hundred of these are full and genuine courts, to which one should also add the numerous quasi-judicial bodies and other forms of adversarial proceedings that are now present, under various different guises, in many of the roughly two thousand global regulatory regimes currently in existence. Courts and quasi-judicial bodies, moreover, operate on a caseby-case basis. They are, therefore, able to make progressive adjustments to the law they apply, using strategies that either alternate between or blend activism and deference, law-creation and “selfrestraint,” dynamism and tolerance, rigidity and flexibility.

For this reason, courts are assuming an important role in the definition of the relations between different legal orders. There is much talk nowadays of “judicial dialogue” or “judicial conversation,” of “inter-judicial coordination” and a “community of judges.”

Index
CHAPTER I
Who Holds Together the Legal Orders of the World?
CHAPTER II
Convergence and Divergence of Interests in the Global Legal Order.
CHAPTER III
Neither Soldiers nor Ambassadors, but Judges.
CHAPTER IV
The Judge-Made Order
CHAPTER V
The Least Dangerous Branch.dd>

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