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David Trubek, University of Wisconsin Law School
Patrick Cottrell, Linfield College

Abstract

This paper presents a view of international law as a framework for problem-solving. Many authors have noted the increased legalization of world politics. Where many conventional approaches to legalization conceive of law as regulation and stress compliance with preexisting rules we argue that especially in the complex arena of transnational governance dubbed “global space,” law often operates very differently. Where many see international governmental organizations as the primary actors in international regulation, we put more emphasis on the operation of multi-level networks, and where many who think of international law stress enforcement and compliance with fixed norms, we put more emphasis on the role of experimentation for the solution of international problems and deliberation for the internalization of international norms. We show that in many cases law-like processes operate more as a framework for collective problem solving in situations of complexity and uncertainty where multiple actors are involved and multiple levels must be coordinated than as a set of fixed rules. Such an order may form norms more through bottom up participatory processes than top-down legislation; rely primarily on open-ended rather than precise legal rules; and deploy flexible and revisable standards. Although such features are present in domestic law, they may be more important in global space. Drawing from the “new governance” literature, the paper develops an alternative framework that embraces the full range of law-like processes, paying particular attention to how they operate as a framework for problem-solving. We conduct a preliminary empirical analysis of the expanded vision of law in global space in three cases – the WTO council and committee system, the EU’s Water Framework Directive, and the Tuna-Dolphin case. While these cases all involve some of the more legalized areas in international affairs, we show that each relies heavily on new governance-type mechanisms to operate.