AUTHORITIES This page intentionally left blank Authorities Confl icts, Cooperation, and Transnational Legal Theory NICOLE ROUGHAN 1 3 Great Clarendon Street, Oxford, OX2 6DP, United Kingdom Oxford University Press is a department of the University of Oxford. It furthers the University’s objective of excellence in research, scholarship, and education by publishing worldwide. Oxford is a registered trade mark of Oxford University Press in the UK and in certain other countries © N Roughan 2013 The moral rights of the author have been asserted First Edition published in 2013 Impression: 1 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, without the prior permission in writing of Oxford University Press, or as expressly permitted by law, by licence or under terms agreed with the appropriate reprographics rights organization. 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For Alex, Elle, Mum, and Dad This page intentionally left blank Acknowledgements This book has been four years, four countries, and seven cities in the making. At each stage and through each move I have been fortunate to have the direct and indirect support of a number of people, without whom the book could not have been written. First, I wish to thank the supervisors whose advice was critical to the com- pletion of the thesis on which this book is based. It was truly a ‘dream team’ of complementary approaches, styles, and ideas. To Jules Coleman, for his generosity in encouraging, critiquing, and interpreting my ideas, and giving me the space to pursue them even when they led to dead-ends and backped- alling. To Daniel Markovits for his precise, detailed, and insightful feedback on my early thesis drafts; and to Bruce Ackerman, for always encouraging me to think big, and giving me the confi dence to do so. I am grateful too for the ongoing advice of both Jules and Bruce as I worked to turn that thesis into this book. Moving back to New Zealand and to Victoria University of Wellington, I was fortunate to be able to draw upon the insights and advice of my col- leagues at the Faculty of Law, in particular Claudia Geiringer, and to have the institutional support provided by the Faculty as I combined teaching with work on my Doctorate. A move to Brussels then led to a spell at Kent University’s Brussels School of International Studies, which provided critical access to resources and the welcome support of colleagues. From Brussels the shorter move to Cambridge for a two-year University Lectureship gave me a phenomenal opportunity to discuss my work with col- leagues within and outside the Law Faculty. In particular I wish to thank Nigel Simmonds for his insights into my project and more general discussions of the state of jurisprudence, Paul McHugh for his sharing of strategic and sage advice, and the Law Fellows at Trinity College for their support. I have been fortunate to receive feedback on working papers presented to a number of audiences. The input of participants in the Cambridge Politi- cal Philosophy Workshop and the Oxford Jurisprudence Discussion Group helped me to revise and consolidate the early version of the relative authority account. Later in the project, I appreciated the critical comments of Roger Cotterrell and Maksymilian Del Mar, in particular, and other participants in Queen Mary University of London’s Legal Theory and Legal History Seminar. Law Faculty presentations at the National University of Singapore and the University of Auckland generated very helpful discussion, as did a viii Acknowledgements presentation for members of the New Zealand Society for Legal and Social Philosophy. I am grateful to the other scholars, friends, colleagues, and teachers who were willing to discuss my work more informally. In addition to those already mentioned, I wish to acknowledge the insights offered at different stages of the project, in conversations with Samantha Besson, Claire Charters, Jim Evans, Dean Knight, Janet McLean, Matthew Palmer, Judith Resnik, Scott Shapiro, Andrew Sharp, Jeremy Waldron, and Bas Van der Vossen, as well as the critical input of two anonymous manuscript reviewers and those who sent informal feedback in response to working papers available online. The institutional support of the New Zealand Centre for Public Law at Victoria University of Wellington, appointing me a Research Fellow, and the University of Auckland, hosting me as a Visiting Academic, has been critical for the fi nal stages of editing. I am also grateful to Palgrave Macmillan for granting permission to reproduce extracts from an earlier publication in Chapter 9 of this work, to James Blackie for facilitating permission to use the cover image, and to Ngatai Taepa, whose beautiful work ‘Tiki 2’ is represented on the front cover. Finally, and most importantly, my family has helped me more than I can say. I wish to thank my parents, for travelling multiple times to the other side of the world to help, for supporting every personal and professional goal I have set, and for being wonderful role models. Elle arrived halfway through and has brought so much laughter and love into our lives, while teaching me that work-life balance means writing during nap times so I could be there to help practise animal noises or go sliding at the playground. Thanks to Ryan and Chandra for giving us all a home away from home in London, to Nick and Mary for their help with childcare and shared holiday breaks, and to my extended family. Lastly, I wish to thank Alex, for being an inspiration and a true partner, living this project with me from the very beginning and sharing each exciting step, each tentative breakthrough, and each international move. His support made the whole project possible. Contents Table of Cases xiii 1. Introduction 1 1. The Target of this Book 3 2. Outline of the Core Argument 7 3. Structure of the Book 8 Part I: Plurality and Authority 8 Part II: The Puzzles of Plurality 9 Part III: A Pluralist Conception of Authority 10 Part IV: Relative Authority in International, Transnational (and) Constitutional Law 10 4. Preliminary Objections and Clarifi cations 12 a. Authority or sovereignty? 12 b. Legitimate or de facto authority? 15 c. Methodological objections 15 PART I: AUTHORITY AND PLURALITY 2. Understanding Authority 19 1. What is Authority? 19 a. Authority as power 20 b. Authority’s normativity 20 c. Authority’s subjects and domains 26 2. ‘Public’ Authority—General or Special Justifi cation? 27 3. Legitimate Authority 29 a. Justifi cation to subjects 31 b. Justifi cation simpliciter 36 3. Plural Authorities and Inter-Authority Relationships 43 1. Introducing Plurality and Inter-Authority Relationships 44 a. ‘Same-domain’ and ‘interactive-domain’ plurality 45 b. Integrated and disjunctive authorities 47 2. Types of Inter-Authority Relationships 48 a. Compatible authorities: deference and toleration 48 b. Complementary authorities: cooperation and coordination 51 c. Confl ict: actual and ‘false’ confl ict 56