On Law, Politics, and Judicialization

By Martin Shapiro; Alec Stone Sweet | Go to book overview

Islands of Transnational Governance

Alec Stone Sweet

The Westphalian state, at least in its ideal-typical form, provides a model of political organization that resolves many of the fundamental questions concerning the relationship between boundaries, territory, jurisdiction, citizenship, and nationhood. It does so by equating state sovereignty with the internal control and external autonomy of national governments. Among other things, this formulation implies the organizational capacity to police borders, to determine what moves in and out. It implies that the state's law and organizations authoritatively govern the activities of those who live or act within state territory. And it implies that the state is legally constrained, in its relations with other states, only by rules upon which it and other states have agreed.

The Westphalian state may never have actually existed. Conceptually, political control—an actual or an asserted state of affairs—and sovereignty—a purely juridical concept—are not one and the same; empirically, they need not be related at all. In this paper, I argue that sovereignty and control are detaching from one another rapidly, at least with respect to transnational commercial activity. In the past three decades, a growing and increasingly cohesive community of actors—including firms, their lawyers, and arbitration houses—have successfully created a transnational space. 1 The space is comprised of a patchwork of private jurisdictions, of rules and organizations without territory, an offshore yet virtual space. These are islands of private, transnational governance.

The paper is divided into two parts. In the first, I discuss, in an abstract way, obstacles to the emergence of a stable network of traders engaged in relatively

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On Law, Politics, and Judicialization
Table of contents

Table of contents

  • On Law, Politics, and Judicialization iii
  • Acknowledgements vii
  • Contents ix
  • List of Figures x
  • 1: Law, Courts, and Social Science 1
  • Political Jurisprudence 19
  • Judicialization and the Construction of Governance 55
  • Appendix 88
  • 2: Judicial Law-Making and Precedent 90
  • Towards a Theory of Stare Decisis 102
  • Path Dependence, Precedent, and Judicial Power 112
  • 3: Constitutional Judicial Review 136
  • The Success of Judicial Review and Democracy 149
  • Constitutional Politics in France and Germany 184
  • 4: Testing, Comparison, Prediction 209
  • The Giving Reasons Requirement 228
  • Appendix 290
  • 5: Judges and Company 292
  • Globalization of Freedom of Contract 296
  • Islands of Transnational Governance 323
  • 6: Abstract Review and Judicial Law-Making 343
  • References 376
  • Index 407
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