For many lawyers, it is difficult to imagine that there is, has had, or could be a phenomenon that deserves to be called a “law” before or outside the state. For them, all law necessarily emanates from the State, and if the State chooses to apply non-State legal systems, it is because there is a rule of State law which states that this must be done (“transmission link”19). They need the state or a similar political system as the ultimate source of normativity, because every interaction with law is perceived as the internal (normative) perspective – and there can be no internal (normative) perspective without a source and judicial reference point of this internal normativity. When arguing from a subordinate point of view, the protagonists are only interested in the norms to which they are subject – actually or hypothetically – in particular those that are opposable to them. The function of the feasibility test for the sovereign perspective is fulfilled here by the availability check; That is, the protagonist will try to find out what types of constructions might be available and still have a chance to be accepted by the competent authorities, especially the courts. Among the constructions presumed to be accepted, the protagonist will choose the construction that is most favorable to him; That is, he will make a pragmatically opportunistic decision. The “American legal perspective” does not mean that Wex ignores comparative law. This means that when civil law and customary law are discussed (whether general or specific), they are explicitly labeled and (whether by narrative or link) linked to parallel documents on American law. At first, there are usually a large number of theoretically possible designs to choose from, and the protagonist must perform a series of tests to reduce their number. One of the most important criteria is feasibility, which includes legal feasibility, in particular competence and compatibility with higher-level standards such as the Constitution, as well as feasibility from a practical point of view, for example in financial and other terms. The selection of the “best” design from a set of possible designs is then largely a matter of evaluative choice.
Each possible design is evaluated according to deontological and/or consequentialist, intrinsic and/or extrinsic standards.16 Even in the face of the “real world”, a compromise between two or more competing solutions must often be found for pragmatic reasons. The subordinate perspective is the perspective of the protagonists whose activity is subject to the law and who explore their field of action, maximize this space and pursue their own objectives and evaluate solutions to know if they are more or less favorable to the achievement of these objectives (“work under the law”). This is the view generally taken by lawyers who defend the interests of their clients in court; But other people, often secretly, may also argue from the subordinate point of view. Unlike the sovereign perspective, the subordinate perspective does not seek to change or criticize the law, but treats it as given and rather tries to find a construct that best serves the interests of a particular party. Unlike the domestic perspective, the subordinate perspective is not just about the “right” decision, but about extending and elaborating legal norms so that they correspond to their own preferences to such an extent that they are or could be acceptable as an authoritative promulgation or enforcement of the law. Wendehorst, L`État, op. cit. cit., note 1, p.
588. See also, from a historical point of view, Thomas Duve, With Authority Against Authority? Überlegungen zur heuristischen Kraft des Autoritätsbegriffs für die Neuere Privatrechtsgeschichte, in Autorität der Form—Autorisierung—Institutionelle Autorität 239, 242 (Wulf Oesterreicher, Gerhard Regn, & Winfried Schulze eds., 2003); Nils Jansen, Informal Authorities in European Private Law, inAuthority in Transnational Legal Theory: Theorising Across Disciplines 191 (Roger Cotterrell & Maksymillan Del Mar, 2016); Nils Jansen, Legal System and Informal Authority, inTexte und Autoritäten, Autoritäten und Texte, 52 (Paolo Becchi eds., 2012). For a different understanding of the term “relative authority”, see Gudrun Schmid, Einheitliche Anwendung von Internationalem Einheitsrecht 127-151 (2004). Expert Perspectives welcomes the voices of industry leaders who share their expertise and ideas directly on the ground. Explore this section to get the views of those at the top of their class A descriptive approach can be applied to any type of legal phenomenon. However, if it makes sense to speak of a quasi-legal commitment, we must limit the term to describing what other relevant people consider to be internally binding (“mirror approach”12) or, as Luhmann puts it, to communications that legally/illegally follow the binary code13, as evidenced by statements made by various actors. What I have not explained in sufficient detail so far is to what extent the perspective compass performs at least one dual function. A function remains in the traditional analysis of law, which presupposes strong policy and explicitly or implicitly attributes perspectives to the paradigmatic roles of judge, legislator, professor and lawyer. The other leaves behind the traditional analysis and is interested in lawyers or others who deal with the law in the broadest sense, while being largely detached or separated from a fixed political regime. In this second function, the Perspective Compass attempts to explain how law can develop through the interaction of different models of legal interaction.
The idea that law is generally rooted in a particular political context, and the discussion of the “disintegration” of law from its political context, stems largely from the emphasis on the internal perspective and hierarchical systems. This focus has been particularly associated with the rise of the nation-state, but describes an ideal rather than what actually happens “on the ground.” In reality, actors dealing with the law, such as judges, lawyers, professors or legislators, have always used other perspectives that are not – or at least not to the same extent as the internal perspective – dependent on a particular community context. You can replace elements of the internal perspective with functionally equivalent elements of other perspectives, such as the external perspective or sovereignty. And by simply switching between different perspectives in legal interaction flows, they can generate, identify, and address legal norms more or less independently of a policy framework. This has always been present in the legal culture and is only reinforced by the proliferation of new non-State legal forms that have accompanied the new wave of globalization.
