30 LJIL 305 (2017)
Intertwinement of Legal Spaces in the Transnational Legal Sphere

handle is hein.journals/lejint30 and id is 320 raw text is: 

LeidenJournal ofinternational Law (2017), 30, pp. 305-326
Q Foundation of the Leiden Journal of International LaW 2017 doi:0.i017/SO9221565I7000012


INTERNATIONAL LEGAL THEORY


Intertwinement of Legal Spaces in the

Transnational Legal Sphere


DANA  BURCHARDT*





   Abstract
   This article analyzes the interactions between norms formally stemming from different orders
   and regimes so as to demonstrate how and to what extent the legal spaces composing the
   transnational legal sphere are intertwined. Furthermore, it addresses the consequences of
   the intertwinement and suggests a fresh approach to the traditional concept of legal orders:
   it stresses a norm-centered rather than system-centered understanding of the transnational
   legal sphere. It argues for a norm-based strategy in order to understand the phenomenon of
   intertwinement, analytically deducing the relationship of the legal orders from the relationship
   of the legal norms.

   Keywords
   concept of legal orders; conflict of norms; hybrid norms; interactions of legal norms; legal space



I.  INTRODUCTION

The  transnational legal sphere is subject to a process of legal intertwinement. Al-
though  not possessing tight systemic structures, the transnational legal sphere is
characterized by the coexistence of multiple legal orders and regimes. These legal
orders and regimes are not isolated from each other; phenomena of interaction have
long-since been noted and  acknowledged  by legal scholars.' Examples of this inter-
action include the creation of norms on the basis of legal standards originating from
different legal orders or regimes, the interpretation of legal norms in consistency
with  standards stemming   from 'external' legal orders and regimes (e.g., domestic
law norms  being interpreted in consistency with international law standards) or the
emergence   of common   principles linking different orders and regimes. In particu-
lar, this interaction has been triggered by the development of international law: a
changing  purpose and content of international law norms and, as a result, an intens-
ified interaction with domestic law but also with norms  of different international


*   Dr. iur., Research Fellow at the Max Planck Institute for Comparative Public Law and International Law,
    Heidelberg [burchardt@mpil.de].
    See, e.g., E Ost and M. van de Kerchove, De la pyramide au reseau?Pour une theorie dialectique du droit(2002); A.
    Peters, 'Fragmentation and Constitutionalization', in A. Orford and F. Hoffmann (eds.), The Oxford Handbook
    of the Theory of International Law (2016) lort; I. Raducu and N. Levrat, 'Le metissage des ordres juridiques
    europeens', (2007) Cahiers de droit europeen III; M.A. Young, Regime Interaction in International Law - Facing
    Fragmentation (2012).

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