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Abstract:
This article proceeds from a way of thinking about legal-rights reasoning that is grounded in the rhetorical tradition. In light of questions of political legitimacy and personal ethics, a central premise of the article is that the rhetorical enterprise must situate itself within a paradigm of dialogic communication in which mutual persuasion is the orientation to argument and the quest for intersubjective validation of claimed premises, lines of argument, and conclusions is the purposive mode. The first step in the article is to move from a general conception of law as a field of rhetoric to an account of how such a conception can be a useful way of thinking about both the nature of (human) rights - assisted by the analytical account of the nature of rights advanced by Joseph Raz - and the interpretive processes of meaning-giving that go on within the international human rights treaty orders. The article then develops an account of representational diversity that builds on previous work on a notion of interactive diversity of knowledge and that situates such diversities as a sine qua non for the legitimate judicialization of interpretive authority in any legal order, but especially in the international realm. To accomplish this, the argument first reminds readers of the central problem of representation within an interstate conception of international human rights law that was first identified and grappled with by Hersch Lauterpacht as the dust of the Second World War was settling - how to justify granting the power of judgment (whatever its formal force) to an international human rights body in light of objections that such judgment represents an unjustifiable imposition from 'outside' a state and its society. The Lauterpacht concern with the representation of states on international bodies is then complemented by a perspective that draws lightly on the theories of process and authority of Myres McDougal and Harold Lasswell and on notions of counterfactual assent such as are associated with the communicative theorizing of Jürgen Habermas. It is argued that the central question of representation in evolving international human rights law should be one that leaves behind the implicit image of an international body as a surrogate for interstate deliberation. Instead, an approach is needed that locates the persuasive authority of international human rights bodies in a double conception of what is termed rhetorical responsibility: at one level, international human rights adjudication as a kind of microcosm of transnational dialogues over human rights in which, alongside representational concerns tied to political geography, non-state representational diversity is valued and given shape by purposive accounts of the point(s) of the international human rights enterprise; and, at another level, of international human rights adjudication as an enterprise that cannot ultimately be divorced from personal ethos and existential decision on the part of judges or analogous decision-makers. In a brief and deliberately tentative concluding section, it is hypothesized that the extent to which a (both) transnationalized and personalized idea of international human rights judging - animated by an ideal of dialogical universalism - can overcome legitimacy concerns based on societal sovereignty in a still-state-ordered world can only be understood alongside an account of two key framing variables. The first variable is the nature and degree of the formal power of an international body to bind states and other actors to its judgments. The second variable is the extent to which a body can plausibly present itself as playing a 'constitutional' role vis-à-vis the community of actors to whom its judgments are addressed.

international, human rights, law, representation, diversity, interpretation, rhetoric, dialogue, habitus, dialogical, universalism, responsibility, authority, knowledge, transnational, community, constitution, adjudication, deliberation, interactive

Abstract:
The purpose of this article is to bring to international attention and defend the African National Congress's decision to attempt to include certain social rights in a new South African constitution. The authors hope to engender international academic and political debate concerning the limits and possibilities of entrenching social rights in a new South African constitution, as well as to offer thoughts that might be of broader relevance to other societies adopting or renewing their constitutions. Part I outlines two types of arguments against the constitutional justiciability of social rights. Part II addresses the legitimacy of social rights and contends that the exclusion of justiciable social rights from a South African constitution would threaten the realization of social justice in South Africa because of law's constitutive influence on society's and individuals' self-understandings. In Part III, the authors scrutinize and find wanting claims of institutional incompetence, notably claims which deny the capability of courts to impose positive obligations on governments and claims which allege that social rights are too imprecise for adjudication. Part IV discusses the "interdependence" of civil and political rights with social rights and argues that such interdependence helps to challenge further claims that judicial bodies can neither legitimately nor competently scrutinize social rights as a matter of constitutional review. Part V then shifts from international law to comparative constitutional law and invokes emergent jurisprudence of the Supreme Court of India, which is infused with the principle of interdependence, to tell a story of the rhetorical possibilities of constitutionalized social rights. Part VI offers some concrete textual and institutional strategies to minimize the antidemocratic potential of judicial review.

Abstract:
The purpose of this article is to identify three understandings of transnational law, all of which have a certain integrity depending on one’s premises about the nature and institutional operation of law. The approach adopted is not to make an argument for the single best reading of the concept of transnational law but instead to outline three candidate conceptions of that notion. For purposes of the article, these conceptions are not assumed necessarily to be competing conceptions. Rather, their potential compatibility is left open for future consideration. In this sense, 'transnational law' is presented in the article as a kind of fuzzy or suggestive 'proto-concept.' After a scene-setting discussion of various caveats concerning the notion of “transnational” within 'transnational law,' the three conceptions - transnationalized legal traditionalism, transnationalized legal decisionism, and transnational socio-legal pluralism - are briefly discussed in turn. Alongside the conceptual discussion, the article uses the implications for legal education as one way of expressing the significance of each conception. The article ends with the contention that 'transnational law' is an idea that pushes the boundaries of the legal imagination in such a way that, at the very least, legal theory and legal education based entirely on ‘domestic’ (state) and ‘international’ (interstate) constructs of law must be open to developing in ways that might take all concerned out of current conceptual comfort zones.

Legal education, Transnational law, Transnationalized legal traditionalism, Transnationalized legal decisionism, Trnasnational socio-legal pluralism