The Substantive/Procedural Distinction: Law’s Solution to the Problem of Jus Cogens in a World of Sovereign States

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Abstract

This article utilizes social systems theory to examine the increased reliance on a substantive/procedural distinction in international law to resolve cases involving a conflict between jus cogens and state immunity. This presents the problem of an evolutionary relationship between international law and a complex integration of forms of societal differentiation in world society. International law is shown to be structurally related to the segmentary differentiation of states which has underwritten the functional differentiation of modern society. At the same time, it is shown to be structurally related to the increasing formulation of global norms that result from advanced functional differentiation. The article then turns to examining the substantive/procedural distinction as a solution to the problem of this dual functional reference. The distinction is shown as not only maintaining the autopoiesis of law under these difficult conditions, but as securing the continued functional relevance of law in globalized society. This functionalist perspective is used to expose differences in the self-description and operation of international law, to point out how law has been blind to its own coding, and to highlight opportunities for programming law to respond in a more direct and holistic fashion to the challenges of globalization.
Original languageEnglish
Article number2
JournalGerman Law Journal
Volume19
Issue number1
Publication statusPublished - 08 Feb 2018

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