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Winner, 2011 ISA International Ethics Section Book Prize In Global Democracy and Sustainable Jurisprudence, Walter Baber and Robert Bartlett explore the necessary characteristics of a meaningful global jurisprudence, a jurisprudence that would underpin international environmental law. Arguing that theories of political deliberation offer useful insights into the current "democratic deficit" in international law, and using this insight as a way to approach the problem of global environmental protection, they offer both a theoretical foundation and a realistic deliberative mechanism for creating effective transnational common law for the environment. Their argument links elements not typically associated: abstract democratic theory and a practical form of deliberative democracy; the legitimacy-imparting value of deliberative democracy and the possibility of legislating through adjudication; common law jurisprudence and the development of transnational environmental law; and conceptual thinking that draws on Deweyan pragmatism, Rawlsian contractarianism, Habermasian critical theory, and the full liberalism of Bohman, Gutmann, and Thompson. Baber and Bartlett offer a democratic method for creating, interpreting, and implementing international environmental norms that involves citizens and bypasses states—an innovation that can be replicated and deployed across a range of policy areas. Transnational environmental consensus would develop through a novel model of juristic democracy that would generate legitimate international environmental law based on processes of hypothetical rule making by citizen juries. This method would translate global environmental norms into international law—law that, unlike all current international law, would be recognized as both fact and norm because of its inherent democratic legitimacy.
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Global Democracy and Sustainable Jurisprudence
Global Democracy and Sustainable Jurisprudence: Deliberative Environmental Law
Walter F. Baber and Robert V. Bartlett
The MIT Press Cambridge, Massachusetts London, England
© 2009 Massachusetts Institute of Technology All rights reserved. No part of this book may be reproduced in any form by any electronic or mechanical means (including photocopying, recording, or information storage and retrieval) without permission in writing from the publisher. For information about special quantity discounts, please email special_sales @mitpress.mit.edu. This book was set in Sabon by Binghamton Valley Composition. Printed and bound in the United States of America. Library of Congress Cataloging-in-Publication Data Baber, Walter F., 1953– Global democracy and sustainable jurisprudence : deliberative environmental law / Walter F. Baber and Robert V. Bartlett. p. cm. Includes bibliographical references and index. ISBN 978-0-262-01302-4 (hardcover : alk. paper)—ISBN 978-0-262-51291-6 (pbk. : alk. paper) 1. Environmental law, International. 2. Environmental policy. I. Bartlett, Robert V. II. Title. K3585.B33 2009 344.04'6—dc22 2008044233 10 9 8 7 6 5 4 3 2 1
To Evalena Baber and Catherine Bartlett
Contents
A Preface to Global Democratic Anarchism Acknowledgments xiii
ix
1 Toward an International Environmental Jurisprudence: Problems and Prospects 1 2 Political Realism: How Realist, How Realistic?
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3 “Dewey Defeats Truman”: Pragmatism versus Pluralism in Deliberative Democracy 37 4 International Environmental Jurisprudence: Conceptual Elements and Options 61 5 International Environmental Law and Jurisprudence: Institutionalizing Rule-Governed Behavior 85 6 Adjudication among Peoples: A Deliberative Democratic Approach 101 7 Juristic Democracy and International Law: Diversity, Disadvantage, and Deliberation 135 8 Nature’s Regime: Think Locally, Act Globally
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