Center for Transboundary Legal Development

Research on the increasing interrelatedness between legal systems, the diversity of actors which influence processes of law making, and the legal issues involved while working towards 'globalisation with a human face'.

General scope of the programme

Beyond State-Centric Law and Legal Doctrine. New Actors and Determinants.

Background

Since the end of the Cold War, international and European law find themselves at the centre of a new search for 'comprehensive security', for more democratic and society-based decision making structures, and for, amongst many other things, globalisation and Europeanisation with a human face, i.e. globalisation characterised by intensification of world wide economic co-operation, by an open eye for the negative consequences of the free market and by respect for fundamental values. Given these developments, the system of the nation-state and its exclusive competences, as well as the international and European system that was built on its foundations during the 20th century, are gradually being challenged, complemented and partly replaced by new approaches and systems.

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Methodology

In the past legal research often concentrated on analysing the characteristics of separate legal systems, be it Dutch law, French law, European Community law or international law. These studies focused on positive law, occasionally including the foundations of the relevant legal system, and paid only sporadic attention to the (socio-political) context in which the system and its separate rules have to function. Despite the progress that has been made in legal research over previous decades, studies still often focus on a single legal system or 'only' compare one system to another. The underlying assumption is that legal systems have a separate identity, and only relate to one another 'externally', solely or mainly touching upon each other 'on the periphery'. However, the boundaries of - as well as the interaction between - legal systems are changing constantly. The following are a number of examples of this trend:

  • The principle of subsidiarity laid down in the Treaty on the European Union is significant in two ways: in the relationship between different national and supranational authorities and in the relationship between those authorities and social organizations and other forms of self-regulation.
  • Human rights are generally considered not to belong to the sovereign domain of States. They are, on the contrary, the common concern of the international community of States as a whole. But, what does this mean in relation to the application of international criminal law, to enterprises and the role of Non-Governmental Organisations (NGOs) in making such a principle standing practice?
  • Does the exercise of legal power assume an institutionalised willingness on the part of those in government to be accountable to those governed? The question is decisive for the viability of the idea of democracy under conditions of internationalisation and globalisation.
  • Modern legal systems have become more open to external influences, not only from other legal systems, but also from society and moral arguments. The development of theoretical approaches such as responsive law - and of communicative and interactive visions of legislation - makes it clear that much attention is being devoted within jurisprudence to openness towards society. But the relationship between the State and its citizens is also in a process of change: shaping the law is no longer an exclusive competence of State organs.
  • New economic relations are characterised not by the attachment of products to their location, but by the mobility of goods and information and communications services that are independent of any location. States and legal systems confined to one State are losing significance, while simultaneously a need to firmly establish new principles to govern these markets is being expressed. These should, for example, take the rights of employees into consideration.
  • As a result of the increasing permeability of national legal and political orders, new dilemmas emerge for Western States. An example is the import of commodities produced by means of child labour. Another example is the practice by Western drug companies of performing risky experiments on vulnerable patients in Third World countries. Both examples refer to practices outside the territory of a State, which can nevertheless conflict with its prevailing norms and values.

In the present research program these and many related questions are addressed.

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Sub-programmes

In order to keep the program managable, it is divided into four sub-programmes:

  1. The first sub-programme, entitled The Westphalian myth revisited, State sovereignty and the process of international law-making and law-enforcement from the 16th century to the present, deals with the most important legal actor: the State and the notion of state sovereignty. This historical perspective is indispensable for a proper understanding of the present developments with regard to the sovereignty of States.
  2. The second sub-programme, entitled From the classical conception of legal systems towards modern European and international governance, aims to provide a new notion of 'acting' on the international, European and national level ('governance'), by replacing the classical 'trias politica' with concepts which better reflect reality. 'Governance' is a broad concept covering both the EU-level and the international level as well as opening the door to different (new) actors on the international level.
  3. The third sub-programme, entitled A European and international legal order based on human rights, focuses on the core contents of a human rights based international and European legal order, and the consequences thereof, in terms of rights and duties, for various 'instances' like the WTO, minorities, corporations, and criminals who violate international human rights standards.
  4. The fourth sub-programme, entitled Legislation and identity: authoritative representation in supra- and infra-national polities, deals with the problem of representation in the various forms of the body politic which have emerged to date. Feeding on the input from sub-programmes II and III, it carves out the reflexive tenets of legal validity as dependent on first person plural norm enactment. Its philosophical approach adds a meta-perspective to the program as a whole.

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Research objectives

Each of the sub-programmes concentrates on areas in which classical legal approaches to problems are contested. Research is conducted into the diversity of actors which influence processes of law making alongside the more traditional actors and into the substantive legal issues that are at stake while working towards, what has been dubbed, 'globalisation with a human face'. This is all carried out with the aim of gaining a better insight into these processes as well as more suitable answers to (a selection of the) manifold problems today's world is confronted with. The core intention is to study these issues in a non-schematic way, bringing forward new, interesting insights as well as producing results which are useful to legal practitioners and policy makers ('there is no better practice than a good theory').

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Output and appreciation

Taking the questions and the foreseeable results together, the sub-programmes and their researchers are the musicians that make the symphony orchestra more than just a group of separate violists, cellists and triangle players. The interplay between them will be realised through collaboration on publications, occasionally in the form of PhD projects, joint applications for external research funds and common research meetings. The program as a whole will be finalised with an overall book, containing its core findings, to be published by an internationally outstanding publisher.

The research program is the natural successor of the program 'Permeability of Legal Systems' which ran from 2000-2004. This program led to a range of very interesting and innovative research results, laid down in thirteen doctoral dissertations - another series of approximately ten doctoral dissertations will be published in 2005-2006 as a result of the program -, a series of other books and contributions to books, and many scientific articles, a number of them having been published in international, highly qualified journals. Publishing in that type of periodicals can be considered an extra indication of the high quality of the research. Another sign of external approval of the work of the research group is the fact that over the years researchers of the program have been able to attract a lot of funding from the Netherlands Organization for Scientific Research (NWO) for their research. In the period 2000-2004, NWO contributed a total 2.5 million € to the programme.

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Continuation of the CTLD research

At the beginning of 2005, a significant number of individual research projects featured in the 2000-2004 program had not yet been finalised or had only just been launched. The research project 'Binding Unity and Diverging Concepts: empirical, conceptual and normative explorations' (part of the old sub-programme 'Constitutional structures of the European Union'), which runs from the end of 2003 to the beginning of 2006 is a clear example of this situation. Another example is the plan for further exploration under the new program of the differentiation, re-definition and implementation of Community instruments. This research is an expansion of the research conducted specifically on the phenomenon of soft law under the previous program and, as such, will in this respect build on those research findings. Furthermore, these and other research themes remain highly topical in the light of the most recent developments regarding the adoption of the Constitutional Treaty for Europe. At a general level these concern, for instance, the maintenance of an adequate system of judicial protection and the position of the individual in this respect. Obviously, current developments in these areas are also very much influenced by the changed international political reality of the past few years.

In addition to what has been achieved under the 2000-2004 programme, many of the research questions from that period remain highly relevant and often also highly complex, thus deserving further attention for the coming five years. That having been said, the present program is not 'just' the successor to 'Permeability of Legal Systems 2000-2004'. A range of projects have been finalised, others have been reformulated or given a more up to date focus, while many new researchers have joined the center, bringing in new ideas and insights. Therefore, the new program can be more appropriately described as 'building upon' its predecessor rather than being viewed as merely an extension of it.

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