A‐Legality: Postnationalism and the Question of Legal Boundaries
| Author | Hans Lindahl |
| Published date | 01 January 2010 |
| Date | 01 January 2010 |
| DOI | http://doi.org/10.1111/j.1468-2230.2009.00783.x |
A-Legality: Postnationalism and the Question of Legal
Boundaries
Hans Lindahl
n
This paper criticallyexamines the prevailing assumption that legal boundaries are becoming irre-
levant in postnationalism.While the boundaries of the nation-state are forfeiting some of their
hold on humanbehaviour, postnational legal ordersare simply not legal ordersu nless theycan in
some waydraw the spatial, temporal, material and subjectiveboundarie s thatmake it possible to
qualify human behaviouras legal or il legal.This implies that re£exivelyconstituted legal orders ^
whether national or postnational ^ must be presented as legal unitie s.To the extent that bound-
aries are the necessary condition of national and post national legal orders, and therewith of legal
unity,they also spawn the possibility of political plurality, manifested in behaviour thatresists the
very distinction between legality and illegality, as drawn by an order of positive law: a-legality.
Rather than signalling the demise of legal boundaries, postnationalism ushers in a novel wayof
dealing therewith ^ and with a-legality.
INTRODUCTION
If the ¢xed andexclusive territoriality ofstates has stamped its distinctivemark on
the era of nationalism, postnationalism ushers in the de-territorialisation of law.
In particular, the emergence of regional and global legal orders loosens the link
between territoriality and legal order in at least two ways. First, the relation
between, say, the EU and its member states cannot be grasped in terms of
mutuallyexclusive territories.The EU’s member statescontinue to claim a signif-
icant measure of exclusive control over their territory, while also relinquishing
part of their sovereignty by participating in a European legal order. In such cases,
de-territorialisation amounts to what has come to be called the emergence of
‘overlapping’ legal orders. Global legal orders point to a second, arguably more
radical, form of de-territorialisation: de-localisation. However disparate, global
legal orders such as the WTO, the law merchant, the International Standards
Organisation and multinationals give the nay to the assumption that an order of
positive law must be spatially bounded ^ or so it seems.
n
Professor of Legal Philosophyat Tilburg.This article is a revised version of my inaugural lecture as
chair of legal philosophyat Tilburg. I am extremelygrateful for comments on the ¢rst version madeo n
diverse occasionsby Hauke Brunkhorst, Emilios Cristodoulidis, Simon Critchley,Raf G eenens, Mir-
eille Hildebrandt, Bonnie Honig, DavidJanssens, Bart van Klink, Nanda Oudejans, Stanley Paulson,
Gunther Teubner, Ronald Tinnevelt, JimTully,Wouter Veraart, Johan van der Walt, Neil Walker and
the MLR’s two anonymous referees. I am particularly indebted to Bert van Roermund, the former
chair of legal philosophy atTilburg, whose philosophical acumen has been a source of great inspiration
to me.
r2010The Author. Journal Compilationr2010 The Modern Law ReviewLimited.
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(2010)73(1) 30^56
Taken together, these two developments demand that legal and political theory
reconsider the relation between legal orders and their boundaries ^ subjective,
material, temporal and spatial. At one level, of course, and assuming that nation-
states will not disappear from the postnational scene, the problem is to fashion a
concept of legal order that is su⁄ciently capacious to accommodate the nation-
state, while also explaining why law has become more local, more global and
more transversal thanthe nation-state. While the literature that describes the de-
territorialisation of postnational legalorders is massive, there is a dearthof studies
dedicated to elaborating a concept of legal order that can integrate the variegated
forms of law spawned by postnationalism, while also concretely explaining why
and how these di¡erent kinds of orders are species of a single genus: legal order.
This article o¡ersa contribution to such aconceptual enquiry. This is its ¢rst task.
But, as will become clear, addressing this task requires dealing with a more
fundamental conceptual problem raised by postnationalism, namely whether
‘de-territorialisation’ amounts to‘de-localisation’. One of the most in£uential and
re¢nedvindications of this position is, as weshall see, GuntherTeubner’s theory of
global law. Although, for Teubner, global forms of private self-regulation must
certainlyclose their ‘meaning boundaries’ if they are at all to be law, their validity
claims aredelocalised by dintof being global law. True, global formsof privateself-
regulation are irreducible to the territorial organisation of a nation-state; but can
they avoid organising themselves in one way or another in space? If not, might
there be a more fundamental sense in which even global law must be spatially
bounded, ie localised law?
Addressing this question requires looking more closely at the‘closure’ of legal
orders. The question concerning how and why all legal orders, including global
legal orders, might be spatially bounded is part and parcel of a more general
enquiry, the main object of which is to explore what it means that legal orders
are‘closed’, and how these ordersrelate to what is beyond their boundaries. It does
not su⁄ce, or so I will argue, tou nderstand the closure of legal orders in terms of
the binary code legality/illegality. To the extent that human behaviour does not
simply fall tidily on either side of the divide between legality and illegality, legal
closure manifests itself primordially in challenges to the ways in which legal
orders draw the boundary between legality and illegality: a-legality. Spatially
speaking, a-legality manifests itself in forms of behaviour that intimate a place
that has no place within the distribution of legal places a collective calls its own,
yet ought to in some way. So described, a-legality points to a primordial form of
spatial closure which is constitutive of all legal orders: the distinction between a
familiar distribution of places ^an inside, and a strange place ^ an outside. In this
fundamental sense, all legal orders are localised, emplaced. By claiming that de-
territorialisation amounts to de-localisation, theories of global law tend to con-
ceal ^ hence to depoliticise ^ the spatial closure of such legal orders.The second
task this article sets itself is, therefore, tocontribute to repoliticising the spatiality
of global legal orders by calli ng attention to their spatial boundaries as the object
of contestation.
The reference to politics evinces the third and most fundamental set of issues
which this article would like to discuss. If the unity of legal orders depends on
their fourfold closure, to what extent can a legal order accommodate political
Hans Lindahl
31
r2010The Author. Journal Compilationr2010 The Modern Law ReviewLimited.
(2010)73(1) 30^56
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