Out of Place and Out of Time: Law's Fading Co-Ordinates

Abstract

Modern jurisprudence has been dominated by questions of authority and questions of meaning. The present paper addresses what it calls the third question of jurisprudence - namely the question of how law situates itself in space and time. This is a question to be addressed at various levels, the most important of which concerns the overall legitimacy of law as a normative enterprise which claims to come from somewhere and 'somewhen' and to be directed to somewhere and 'somewhen'. In the Westphalian tradition in which the dominant forms of law have been constitutional law and international law, this question of self-situation has tended to be answered either in highly universalistic terms (a law that transcended place and time) or in highly particularistic terms (a law that was peculiar to a particular place and perpetual in its ambition) . Both universalistic and particularistic narratives, despite their superficial contrast, emphasize the holistic and magisterial properties of law - as a form of authority that is both comprehensive and self-contained and sovereign within its situation. Today, with the fading of the Westphalian paradigm and the growth of myriad new forms of transnational law, various forms of new regulation - pluri-constitutive, interstitial, non-constitutive and global general law - lack the background co-ordinates either of universalism or of a comprehensive particularism and the associated systemic qualities of holism and magisterialism. What do these new forms of 'uncharted law' suggest more generally about the future of the legal form and of the ways in which law may legitimate itself?

Keywords: universalism, particularism, jurisprudence, constituent, time, place, international, constitutional