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42 Climate Change Governance, International Relations, and Politics: A Transnational Law Perspective
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I. Introduction I. Introduction
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II. Features of Transnational Law II. Features of Transnational Law
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A. Relative Independence from State Authorization A. Relative Independence from State Authorization
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B. Loose and Sometimes Absent Connection to Territory B. Loose and Sometimes Absent Connection to Territory
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C. Dynamic C. Dynamic
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D. Fragmentation D. Fragmentation
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E. Technocratic E. Technocratic
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III. Core Commitments of Legal Positivism III. Core Commitments of Legal Positivism
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IV. Application and Renovation of Legal Positivism IV. Application and Renovation of Legal Positivism
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V. Methodological Continuity V. Methodological Continuity
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A. Analytical Legal Theory and Empirical Legal Studies A. Analytical Legal Theory and Empirical Legal Studies
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B. Analytical Legal Theory and Moral and Political Concerns B. Analytical Legal Theory and Moral and Political Concerns
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Selective Bibliography Selective Bibliography
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44 Transnational Law and Legal Positivism
Get accessMichael Giudice is Associate Professor of Philosophy at York University, Canada. He specializes in the philosophy of law, and with Keith Culver has two books on the contingent and dynamic relation between law and state, Legality’s Borders (Oxford University Press, 2010) and The Unsteady State (Cambridge University Press, 2017).
Eric Scarffe is a PhD candidate in philosophy at Boston University. His dissertation, “Moving Toward a Dignity-Based Approach to International Law,” develops a novel account of the binding force of international law. Some of his work has been published in the Canadian Journal of Law and Jurisprudence.
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Published:14 April 2021
Cite
Abstract
This chapter assesses the theoretical adequacy of legal positivism in explanation of several forms and features of transnational law. We suggest that while legal positivism emerged as a philosophical account of state law in the seventeenth, eighteenth, and nineteenth centuries, its connection to state law is best viewed as historical and contingent rather than conceptual and necessary. Among the two core commitments of legal positivism, while the separation thesis requires no modification from its original form, the social fact thesis must be revised and developed to explain the character of transnational law. We also show how the exercise of revising a philosophical theory of law such as legal positivism provides an opportunity to illustrate the continuity between conceptual, empirical, and evaluative studies of transnational law.
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