The Challenge of Globalization to American Public Law Scholarship

Abstract

American public law scholarship views law as a purposive instrument for the achievement of democratic purposes. It has analyzed how this instrument can best be employed within the historical context of the legal institutions and traditions of particular nation-states. Emerging forms of international law, articulated by international tribunals, challenge these fundamental premises of American public law scholarship. Much international law does not reflect the will of an indentifiable demos, and it is articulated through innovative legal institutions that combine the procedures and organizational forms of many distinct states and legal cultures. Attempting to comprehend the sources and limitations of the legitimacy of this kind of international law will force American public law scholarship to re-examine deep and implicit presuppositions, inherited from legal realism, about the inherent normativity of the rule of law. The author speculates about possible effects of this re-examination on the substantive and methodological agenda ofAmerican public law scholarship.