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Resolving the question of inter-scalar legitimacy into law? A hard look at proportionality balancing in global governance
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Kuo, Ming-Sung (2018) Resolving the question of inter-scalar legitimacy into law? A hard look at proportionality balancing in global governance. Leiden Journal of International Law, 31 (4). 793 -815. doi:10.1017/S0922156518000390 ISSN 0922-1565.
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Official URL: https://doi.org/10.1017/S0922156518000390
Abstract
In this paper, I examine the attempt to apply proportionality balancing (PB) to the coordination of the relations between governance regimes, which I call ‘inter-scalar PB’, from the perspective of competing institutional arrangements of global governance. Observing of inter scalar PB becoming a legal technique of management, I argue that it be reconceived as a narrative framework within which the fundamental values and principles of individual governance regimes can be politically contested without antagonism. I first discuss the role PB has played in the interaction between the law of state immunity and international investment law and then take a closer look at the features of inter-scalar PB as intimated in those instances: simplism, normativism, institutionalism, and legalism. I suggest that the complex fundamental issues concerning the relationship between governance regimes are left out in the proportionality analysis - mediated resolution of regime - induced conflicts, disclosing the depoliticization tendency in inter-scalar PB. Juxtaposing it with the indicator project in international human rights advocacy, I conclude that both are jurispathic and reflect the rationalist propensity in the legal administration of global governance. PB, reconceived as a language in which values, conflicts, and interests of each governance regime can be argued and narrated as part of the politics of reconstructing global governance, will help to recast global governance in more jurisgenerative terms.
| Item Type: | Journal Article | ||||||||
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| Subjects: | J Political Science > JZ International relations K Law [Moys] > KC International Law |
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| Divisions: | Faculty of Social Sciences > School of Law | ||||||||
| Library of Congress Subject Headings (LCSH): | International cooperation -- Law and legislation, International organization -- Law and legislation, International relations -- Law and legislation | ||||||||
| Journal or Publication Title: | Leiden Journal of International Law | ||||||||
| Publisher: | Cambridge University Press | ||||||||
| ISSN: | 0922-1565 | ||||||||
| Official Date: | December 2018 | ||||||||
| Dates: |
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| Volume: | 31 | ||||||||
| Number: | 4 | ||||||||
| Page Range: | 793 -815 | ||||||||
| DOI: | 10.1017/S0922156518000390 | ||||||||
| Status: | Peer Reviewed | ||||||||
| Publication Status: | Published | ||||||||
| Access rights to Published version: | Restricted or Subscription Access | ||||||||
| Copyright Holders: | © Foundation of the Leiden Journal of International Law 2018 | ||||||||
| Date of first compliant deposit: | 17 July 2018 | ||||||||
| Date of first compliant Open Access: | 17 July 2018 | ||||||||
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