Who has the authority to decide on behalf of children the balance between advancing the child rights regime over the legal certainty of real children? This question is put to the test with the Swedish incorporation of the CRC into the national legal system without adhering to normal democratic safeguards; pairing the hierarchy of norms with the corresponding hierarchy of sources when conducing judicial review, or a political question doctrine to maintain the line between the courts and the democratically elected legislator. To incorporate the CRC directly without a process of transference, an international treaty that is as wide in scope and open for interpretation to be directly applicable in concrete cases has caused a persistent condition akin to Agamben’s state of exception, read through Swedish scholar Herbert Tingsten.

The book concludes with situating the EAEU legal order within the indicia developed in Chapter 1 demonstrating whether and how these are fulfilled for the autonomous legal order to emerge. There are certainly some manifestations thereof, such as the Court’s move to recognize and incorporate the discourse of major doctrines relevant for legal order autonomy. Nevertheless, it has troubles demonstrating some of the indicia, and the power struggle between the Member States and EAEU institutions has resulted in limitations, particularly running the risk of misapplication of Union law and fragmentation of the legal system, as well as endangering the ability of the legal order for self-maintenance. While this leads to ‘fragile autonomy’, there are embedded premises, which can help in overcoming this, if such a desire prevails. The book spells out some concrete ways to do so.

Chapter 1 sets the scene by exploring the concept of legal order autonomy, which is used in the following chapters as an analytical framework for the analysis of the EAEU legal order. The chapter gives an overview of the notions of autonomy and autonomous legal order in their various forms. It further takes the EU as an exemplar autonomous legal order, analyses its two dimensions – internal and external – and uses a literary reference to capture it. Further, given the prima facie interrelations between autonomy and supranationality, the chapter situates the latter in this context, which links to the exploration in Chapter 3 of the EAEU’s claim that it has established the first supranational institution in the region. As there is no single doctrine of legal order autonomy nor a definition thereof, the chapter develops a number of indicia of legal order autonomy to be used in the book to analyse the EAEU, and explains why indicia are preferred to criteria in this book. As the idea of a legal order autonomy is largely a judicial construct, it is presented as a particular narrative of its own.

This chapter proposes that a carefully crafted private international law-based framework allocates regulatory authority between the national and institutional orders so as to allow maintaining institutional independence without sacrificing access to justice. It is argued that the ideal approach to implement the proposed regime is through an international arrangement. Of course, international agreements can take time to negotiate. Given that private international law rules can be adjusted nationally without the need for action on the international plain, the proposed framework can be implemented even in the absence of immediate international action. It is submitted that private international law techniques can help bring to an end the denial of justice age for the victims of IO conduct. A conundrum that public international law has not been able to address for decades can readily be resolve using private international law.

Winston argues that Lon Fuller’s critique of legal positivism was rather special in focusing on issues that lay beneath the surface of the usual intramural disputes, and thus related only indirectly to what positivists, such as Kelsen and Hart, said explicitly when expounding their views. Winston explains that, as a pragmatist, Fuller largely eschewed conceptual or semantic questions, focusing instead on questions of methodology and governance, in particular the adequacy of a scientific approach to understanding human society and the role played by agency and purpose in ordering civic life. In a phrase, Fuller faulted legal positivists for encouraging the kind of social engineering perspective reflected in bureaucratic/regulatory states. The importance of a pragmatic jurisprudence – and its superiority over other social sciences – lies precisely in the practical experience and concerns which lawyers possess (and other social scientists lack) and which they bring to bear in fashioning the participatory social architecture that is better at protecting human freedom.

Understanding the purely legal point of view – which Holmes ultimately personified as the“bad man” – depends on appreciating the temporal dimensions of existence. Working off James Willard Hurst’s Justice Holmes on Legal History, this part attempts to lay the basis for a three-dimensional view of law. Hurst’s ideas of sequence and context lead to a greater appreciation of law’s horizontal and vertical dimensions, and provide the basis for appreciating its depth and vitality. A three-dimensional view of law brings law to present purpose when tied to what Holmes called the law’s fundamental theorem: the philosophical idea that any possible conduct is either lawful or unlawful. From this starting point it might one day be possible to create a metric of the law, one that would materially expand the law’s capacity to be known.

The chapter considers, on the one hand, the ways in which international arbitration was a source of inspiration for Philip Jessup when he elaborated the notion of transnational law. On the other hand, it considers how the notion of transnational law constitutes a relevant tool for the analysis of international arbitration. The chapter relies in particular on the documents gathered in the Philip C. Jessup Collection at the Library of Congress, which include early drafts and preparatory works for the Storrs Lectures at Yale University. It examines three discrete stories that each illustrate one salient aspect of the notion of transnational law (norms, actors and processes) and its relevance for the analysis of international arbitration.

Some judges and scholars hold that within legal limits and across legal frameworks, there is just a legal void, a domain in which law is absent. I challenge the legal void thesis, arguing that law operates within the spaces law creates. Law governs the interstitial spaces that exist within legal limits and across frameworks through its possession and assertion of legitimate authority. Importantly, its spatially seamless assertion of legitimate authority relies on a relationship of mutual trust between law-giver and legal subject. The argument begins by setting out the distinction between a decision-making entity’s authorization (ie, the process that led to it having authority) and its authority per se (ie, the nature of its legal power). The next section builds on the authorization/authority distinction and introduces the idea of mutual trust through the writings of Thomas Hobbes. Hobbes persistently uses the language of trust to characterize the position of the sovereign and other public officials. The second half of the paper sketches the conception of trust on which I rely, and explains how mutual trust informs law’s authority such that law can be understood to pervade the spaces it creates for the liberty of its subjects and officials