The process of norm evolution and development in international law has been highly debated in recent international law and international relations scholarship. However, the debate focuses primarily on states or non-state actors as the agents responsible for shaping international law. In contrast, the role of the judiciary is often neglected in the debate. It is an open secret, though, that courts are not merely Montesquieu's bouche de la loi, impartial arbiters, who apply and interpret exogenous norms. Armin von Bogdandy and Ingo Venzke have already pointed out that decisions for concrete cases can hardly be derived from abstract legal concepts by the mere exercise of logical deduction. Instead, the application of legal provisions often involves the development of the applied norm itself. This not only applies in the domestic setting, but is also valid in the international arena. This contribution will deal specifically with lawmaking by the International Court of Justice (ICJ).

“Sports law is not just international; it is nongovernmental as well, and this differentiates it from all other forms of law.” Sports rules are genuine “global law” because they are applied across the entire world, they involve both international and domestic levels, and they directly affect individuals: This happens, for instance, in the case of the Olympic Charter, a private act of a “constitutional nature” with which all States comply, or in the case of the World Anti-Doping Code, a document that provides the framework for the harmonization of anti-doping policies, rules, and regulations within sports organizations and among public authorities.

While the introductory contribution addressed the questions and definitions of our research into judicial lawmaking, this concluding chapter discusses strategies regarding the justification of international judicial lawmaking that our introduction sought to capture and that the volume set out to present. How can one square such lawmaking with the principle of democracy? A first response could be to negate the phenomenon. If there were no such thing as judicial lawmaking, there would evidently be no need for its justification. This response, though unconvincing, merits attention all the same because, according to the traditional and still widespread view of international dispute settlement, international decisions flow from the consent of the state parties to the dispute, both from the consensual basis of the applicable law and from consent-based jurisdiction. If state parties are democratic, then the presence of their consent should solve any legitimate question as long as the courts only fulfill their task of dispute settlement properly. This explains the emphasis that traditional schools of thought place on the cognitive paradigm and on the principle that judges are limited to applying the law to the dispute at hand.

This paper provides an outline for a general theory of postwar U.S. labor law and regulation. It focuses on the structure and administration of the Labor Management Relations Act (LMRA), the centerpiece of U.S. labor policy over the past two generations. The central thesis of the analysis is that American labor law tends systematically to constrain and fragment worker organization, and is best understood as comprising a regulatory regime that both codifies and furthers the weakness of American labor. The organizing principle of this regulatory regime is the general denial of substantive generic entitlements for workers, and the general limitation of enforceable substantive worker claims to those claims arising from the guarantees of specific collective bargaining agreements negotiated within narrow contexts of union-employer dealings. As a consequence of this distinctive structure of interest articulation and satisfaction, unions rationally adopt highly particularistic bargaining strategies in their dealings with employers. As a consequence of such adoption, unions are divided within themselves, from one another, and from unorganized workers, with the result that workers overall are cumulatively weakened as a class.

So much has been written about liberal rights and critical legal theory that many of us begin to find the topic boring. It is with some trepidation that I impose yet one more discussion of rights analysis upon the waiting - but satiated - world.

In 1984, President Reagan signed a bill that created the Martin Luther King, Jr. Federal Holiday Commission. The Commission was charged with the responsibility of issuing guidelines for states and localities to follow in preparing their observances of Martin Luther King's birthday. The Commission's task would not be easy. Although King's birthday had come to symbolize the massive social movement that grew out of efforts of African-Americans to end the long history of racial oppression in America, the first official observance of the holiday would take place in the face of at least two disturbing obstacles: first, a constant, if not increasing, socioeconomic disparity between the races, and second, a hostile administration devoted to changing the path of civil rights reforms that some believe responsible for most of the movement's progress.

The first few years in the development of critical legal studies (CLS) saw an ongoing discussion of an issue that was framed as “rationalism v. irrationalism”. The labels, it now appears, were misleading, for the discussion can be better understood as concerning the utility - for purposes of orienting strategic action as well as of understanding the social order - of relatively large-scale social theories in the traditions of Marx and Weber. The distinctive contribution of CLS to leftist social thought, and the embodiment of the fact that one side in the earlier discussion more or less prevailed, is its insistence that a leftist social and political theory does not need to be grounded in that sort of social theory.

Blindfolded Justice never cracks a smile. Laws don't joke around. In Bertolt Brecht's The Caucasian Chalk Circle, People's Judge Azdak instructs us that “the law must always be dispensed with complete seriousness.” “Because it's such a serious matter,” Solomon would have said. “Because it's so stupid,” Azdak explains, “and gone before you know it.”

I develop my picture of contemporary legal scholarship in two broad strokes. In the first section, I focus on the relationship between legal scholarship and the traditions of theory, philosophy, and the human sciences, arguing that the interdisciplinary work of contemporary legal scholarship expresses legal culture's uneasiness about intellection. In the second section, I focus on the relationship between legal scholarship and political engagement, arguing that the programatic or exhortatory tone, structure and context of contemporary legal scholarship expresses legal culture's uneasiness about what it thinks of as “politics”.

The Talmud tells us how once during a heated halachic discussion, when no agreement could be reached, Rabbi Eliezer, whose detailed, elegantly justified legal opinion was not shared by the majority, said that if he were right, a carob tree outside would move to prove it. When it did move, the other rabbis remained unimpressed. Eliezer claimed that if he were right, a nearby stream would flow backwards - and it did; he claimed that the schoolhouse walls would bend - and they did. But the rabbis were not impressed by these wonders either. Finally he said heaven itself would prove him right. Thereupon a Heavenly Voice confirmed Eliezer's position. Yet the rabbis disagreed even with this voice, saying: “We pay no attention to a Heavenly Voice, because Thou hast long since written in the Torah at Mount Sinai, after the majority must one incline”. And God laughed, saying “My sons have defeated Me, My sons have defeated Me.”

Durkheim considered the existence of indeterminate norms to be a characteristic of modern societies organized according to the division of labor. Contrary to what one might readily assume, he did not see the increasing complexity of the matter regulated as the sole reason for this. Rather, he regarded the indeterminacy of norms to be a phenomenon, which complemented the individual autonomy of that society's members - however unusual this may sound. The determinacy of the rules diminishes to the same extent that the networks of societalization become increasingly dense: rule application becomes “free.” It is assumed that the addressees of indeterminate norms can make use of their autonomy instead of merely exhibiting mechanical obedience. It is hardly compatible with the ideal of individual autonomy that a society only deploys such rules as prescribe every single action in every situation down to the last detail, until they could be applied just as unconsciously as the highway code.

For a brief period - during the first half of the 1970s - it appeared as though the fundamental debate concerning the function of basic rights (to a certain extent an individual-oriented reprise of the Rechtsstaat-social state controversy of the 1950s and 1960s was coming down to the alternatives “Basic Rights: (only) Defensive Rights” or “Basic Rights: (also) Rights to Participation and Claims to Performance” Peter Häberle's demand (made at the 1971 Constitutional Law Teachers' Conference) that the base-line substantive legal status of basic rights be supplemented by a “status activus processualis” (in the sense of a “government-performative due process”), and the Federal Constitutional Court's (FCC's) first Numerus-Clausus decision (of 18 July 1972) and its Term Abortion decision (of 25 February 1975), with its recognition of the state's “comprehensive” duty to protect (and promote!) unborn life, all mark advanced positions in theory and judicial decision-making. At the same time, new life was given to the discussion concerning “basic social rights” (such as the “right to work”, “to shelter”, “to education”, “to social security”, etc.), and new and expanded forms of social protection, in short: concerning the concretization of the social state principle. Yet the welfare-state, “social-liberal” reform impulse soon ran up against political-economic limits: the “feasibility proviso” allowed the merely “ideal standard” character of subjective performance rights to become all too quickly apparent.

Claims of “rights” involve abstraction - to some extent anyway - from immediate social and political context. Academic discussion of the topic very often magnifies the abstraction. At the same time, abstraction is itself sometimes identified as the central “problem” in rights theory - and so becomes the focus of discussion of the topic. It is the focus of Professor Denninger's paper. It is also the focus of mine.

Preliminary Remark: The observations below are to be understood more as a draft than as theses. They refer to and continue a series of earlier considerations, most recently in two papers: Social Science Models in Economic Law, in Contract and Organisation, 52-67 (T. Daintith/G. Teubner eds., 1986) and Materialization and Proceduralization in Modern Law, in Dilemmas of Law in the Welfare State 221-248 (G. Teubner ed. 1986); both papers are also to be found (in German) in the following documentation: G. Brüggemeier, Workshop zu Konzepten des postinterventionistischen Rechts, Materialien des Zentrums für Europäische Rechtspolitik, 2-24, 25-64 (Ch. Joerges eds., Heft 4, 1984).