국제법 담론에서 법다원주의의 함의에 관한 연구 (An Inquiry into the Implication of Legal Pluralism in International Law Discourse)

서지정보

· 발행기관 : 국제법평론회
· 수록지 정보 : 국제법평론 / 47호 / 81 ~ 116페이지
· 저자명 : 김성원

초록

The impact of globalization would be prevalent in every respect: politics, economics, culture and law. The aftermath of globalization would be marked as both opportunity and challenge in international law discourse because it dismantles the very foundation of international law, which is preserved in mothball of the state-centric structure of international society. Although states are still playing a pivotal role in shaping and operating the international society, this role of states is critically circumscribed by the rapid proliferation and increased role of the non-state actors in every aspect.
Furthermore, this new phenomenon would not be limited in factual situation of the international society. Due to the very nature of law which is well described in Latin maxim Ubi societas ibi ius, international law is requested to reflect realities molded by the impact of globalization triggering the advent of heterogeneous legal norms of international institutions, international organizations, supranatioanal organizations, hybrid entities and non-state actors. These heterogenous legal norms such as non-state law, unofficial law and postnational law provide legal subjects with various rights and duties in overlapping jurisdictional situations. In this regards, as the fundamental legal system of the international society, international law should pay critical attention to the way of arranging the relationship with these heterogenous legal norm in relevant order.
For the purpose of identifying international law as the fundamental legal system of the international society rightly, the alternative legal perspective would be desperately needed because the legal positivism understood as the mainstream perspective in the international law discourse would not have the flexible attitude towards the relationship between law and social realities. In this respect, legal pluralism, which pays considerable attention to legal realities via ‘living law’ perspective, would be suggested as the alternative legal perspective to the chaotic development in global legal system.
This article seeks to grapple with the complexities of legal norms in a world where a single act or actors is potentially regulated by multiple legal or quasi-legal regimes. From the lens of legal pluralism, especially strong legal pluralism, this paper mainly tries to explore the possibilities of international law to transplant main gist of legal pluralism. This exploration would be examined through case studies addressing the debates about global constitutionalism, politics of self-contained regime conflicts, the relationship between international law and lex- and the encouragement of international law studies in comparative perspective. Owing to the risk, which might disregard the very assumption of legal pluralism, these case studies attempting to apply legal pluralism to international law discourse should be made in very cautious way. In this regard, the anticipated outcome of these case studies might not be welcomed by both scholars of international law and scholars of legal pluralism and global legal pluralism. However, this somewhat negative vista would not be used as a manifesto for blocking the channel for alternative studies demanded in the age of globalization.
The attempt to apply legal pluralism to international law discourse might be turned out as much ado about nothing. Also, if case studies would be made upon the condition rooted in definitional stop approach, an attempt to apply legal pluralism to international law would be proven as sterile one that only confirms that there is nothing common about the relationship between international law and various kinds of heterogenous legal norms. Against all odds, it is high time for international law to rethink the positive impact of legal pluralism for identifying international law’s true status in the age of globalization because international law could not turn a deaf ear to roars other kinds of legal norm demanding drastic revolution of international law structure any longer. What is definitely needed is not the total negation of international law’s role in the international society. Just focusing on the necessity of Tod und Verklärung concerning international law reviewed by the perspective of legal pluralism, international law legitimately becomes aware of its fundamental role assigned by the international society as the fundamental legal system of the international society.

영어초록

The impact of globalization would be prevalent in every respect: politics, economics, culture and law. The aftermath of globalization would be marked as both opportunity and challenge in international law discourse because it dismantles the very foundation of international law, which is preserved in mothball of the state-centric structure of international society. Although states are still playing a pivotal role in shaping and operating the international society, this role of states is critically circumscribed by the rapid proliferation and increased role of the non-state actors in every aspect.
Furthermore, this new phenomenon would not be limited in factual situation of the international society. Due to the very nature of law which is well described in Latin maxim Ubi societas ibi ius, international law is requested to reflect realities molded by the impact of globalization triggering the advent of heterogeneous legal norms of international institutions, international organizations, supranatioanal organizations, hybrid entities and non-state actors. These heterogenous legal norms such as non-state law, unofficial law and postnational law provide legal subjects with various rights and duties in overlapping jurisdictional situations. In this regards, as the fundamental legal system of the international society, international law should pay critical attention to the way of arranging the relationship with these heterogenous legal norm in relevant order.
For the purpose of identifying international law as the fundamental legal system of the international society rightly, the alternative legal perspective would be desperately needed because the legal positivism understood as the mainstream perspective in the international law discourse would not have the flexible attitude towards the relationship between law and social realities. In this respect, legal pluralism, which pays considerable attention to legal realities via ‘living law’ perspective, would be suggested as the alternative legal perspective to the chaotic development in global legal system.
This article seeks to grapple with the complexities of legal norms in a world where a single act or actors is potentially regulated by multiple legal or quasi-legal regimes. From the lens of legal pluralism, especially strong legal pluralism, this paper mainly tries to explore the possibilities of international law to transplant main gist of legal pluralism. This exploration would be examined through case studies addressing the debates about global constitutionalism, politics of self-contained regime conflicts, the relationship between international law and lex- and the encouragement of international law studies in comparative perspective. Owing to the risk, which might disregard the very assumption of legal pluralism, these case studies attempting to apply legal pluralism to international law discourse should be made in very cautious way. In this regard, the anticipated outcome of these case studies might not be welcomed by both scholars of international law and scholars of legal pluralism and global legal pluralism. However, this somewhat negative vista would not be used as a manifesto for blocking the channel for alternative studies demanded in the age of globalization.
The attempt to apply legal pluralism to international law discourse might be turned out as much ado about nothing. Also, if case studies would be made upon the condition rooted in definitional stop approach, an attempt to apply legal pluralism to international law would be proven as sterile one that only confirms that there is nothing common about the relationship between international law and various kinds of heterogenous legal norms. Against all odds, it is high time for international law to rethink the positive impact of legal pluralism for identifying international law’s true status in the age of globalization because international law could not turn a deaf ear to roars other kinds of legal norm demanding drastic revolution of international law structure any longer. What is definitely needed is not the total negation of international law’s role in the international society. Just focusing on the necessity of Tod und Verklärung concerning international law reviewed by the perspective of legal pluralism, international law legitimately becomes aware of its fundamental role assigned by the international society as the fundamental legal system of the international society.

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