A Systems Theory of Fragmentation and Harmonization
New York University Journal of International Law and Politics (JILP), (2016)
SMU Dedman School of Law Legal Studies Research Paper No. 261
61 Pages Posted: 26 Mar 2016 Last revised: 23 Jan 2017
Date Written: June 21, 2016
International law’s accelerating “fragmentation” presents the international legal system with what looks like a multilayered existential threat. Theoretically, how can we conceive of international law as a unitary system if its rules are becoming progressively frayed and pixilated to the point of incoherence? Doctrinally, what is “the law” if different, purportedly authoritative, bodies interpret it so differently? And practically, how are actors increasingly subject to the ever-expanding universe of international law supposed to behave when the law itself is so splintered that it may point them in many, perhaps contradictory, directions at once?
The prevailing view so far among international legal scholars, institutions, and decision-makers is to “abandon every hope” of a coherent, unitary legal system and instead settle for managing (as opposed to resolving) conflicting rules and interpretations thereof through conflict of laws methodologies.
This Article fights against that view; that is, it fights for the international legal system’s coherence. The Article first argues that the conflict of laws view promises only to entrench the evils supposedly spawned by fragmentation that threaten to take down the system; namely, compromises in core justice principles of equality (or the ideal that like cases be treated alike) and predictability of the law. The Article next draws from systems theory and its fulcrum concept of autopoiesis to defend international law as a unitary system striving for its own survival. And it argues that, rather than posing an existential threat, fragmentation may paradoxically be a growing pain in the system’s long-term maturation. In this connection, the Article proposes two methodological tools for decision-makers seeking to advance the project of a unitary international legal system: a presumption of coherence and a presumption of catholicity. In combination, these tools aim to promote legal coherence and correctness without the compromises in justice that invariably attend true conflict of laws disputes — compromises that conflict of laws methods institutionalize but that this Article’s coherence methods seek to avoid.
The result is to answer the threat posed by fragmentation with a novel alternative account of how fragmentation may: (1) fit into international law’s long-term evolution as an ultimately coherent and robust system; (2) eventually, if counterintuitively, lead to broader and deeper harmonization of the law regulating international disputes, and; (3) in turn, furnish more predictable and acceptable rules for actors involved in those disputes. Indeed, this Article argues that its theory not only provides an alternative description of fragmentation, but also that its account leads to a more just international legal system.
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