David Roth-Isigkeit (Goethe University Frankfurt – Cluster of Excellence Normative Orders) has posted Promises and Perils of Legal Argument – A Discursive Approach to Normative Conflict between Legal Orders (Revue Belge de Droit International 2/2014, p. 508ff) on SSRN. Here is the abstract:
Global law finds itself increasingly confronted with situations of overlap between normative orders. Overlaps may occur as a result of conflict between different territorially-anchored legal orders as well as between functionally-differentiated regimes. The theoretical challenge appears as a positivist concept of law with its traditional resort to conflict rules has a very limited capacity to deal with constellations of legal overlap when conflict rules themselves are contested. While some have argued that in this case the relations between different legal systems become merely political in character, the argument of this article is that there do exist legal relations governing these conflicts in between different legal orders. These legal relations are reflected in particular procedural requirements of legal argumentation. The article suggests procedural rules based on the requirements of discourse ethics that are necessarily to be followed if a legal order wants to satisfy its inherent commitment to reflexivity and tolerance. The article thus aims to show that even in the absence of clear conflict rules the inherent rationality of a legal system creates procedural legal obligations between both systems.