Picciotto, Salomone (2007) Law and Legitimacy in Multi-Level Governance. In: Workshop on Multi-Level Governance, 2007-05-17 - 2007-05-19. (Unpublished)
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Abstract
Multi-level governance entails transformations of statehood, including significant changes in both the public sphere of politics and the so-called private sphere of economic activity, and in their modes of interaction, especially law. The fragmentation of the public sphere and the decentring of the state have led to new types of formalized regulation and the emergence of global regulatory networks, intermingling the public and the private. The transition from government to governance means a lack of a clear hierarchy of norms, a blurring of distinctions between hard/soft and public/private law, and a fragmentation of public functions entailing a resurgence of technocracy. Renewed international legalisation (WTO adjudication, International Criminal Court etc) has been viewed by some in formalist terms, as helping to provide certainty and predictability, and this has been used to try to buttress the legitimacy of global governance. Viewed more closely and critically, however, it is the indeterminacy of law that provides the space for interpretative practices, which can both exploit and exacerbate the fragmentation of the public sphere, and mediate the complex interactions. Indeed, the increasingly important role for regulation in global governance undermines the formalist view of law’s legitimacy as deriving from national state political structures, and requires new approaches to articulating normative interactions that are more conducive to democratic deliberation, in order to establish the public interest firmly as the prime concern in all forms of management of economic activity. The paper will explore these issues using examples from different areas of international economic regulation.