by Larry Catá Backer (ed). Durham N.C.: Carolina Academic Press, 2007. 394pp. Hardback. $50.00. ISBN: 9780890895856.
Reviewed by Dr. Carla Thorson, World Affairs Council of Northern California. Email: cthorson [at] wacsf.org.
Convergence, divergence and resistance – these are the most important ways in which domestic, international, public and private legal systems interact with each other, according the Larry Catá Backer and his colleagues who contributed to this volume. A dozen scholars present an overview of legal harmonization in an era of globalization by looking at horizontal and vertical relationships between and among political institutions, and the interaction between international legal instruments and nation-states, private entities, and individuals.
The theoretical framework for understanding legal harmonization – in other words, the nature of communication, accommodation, amalgamation or resistance among legal systems – is outlined by Larry Catá Backer. Key to understanding is the point that harmonization is something quite different from globalization. Backer points out that, while harmonization is sometimes used as a synonym for globalization, in his view and those of the contributors, harmonization is really more a method rather than simply a normative basis for globalization itself. If the objective is globalization, then harmonization is a means to this substantive end. It is not always a smooth road or straight path however. While globalization can produce powerful incentives toward harmonizing law, either voluntarily or coercively, it can also induce resistance or divergence in the law. The essays in this volume illustrate the ways in which legal systems respond to these sometimes disparate pressures.
The volume can be divided into six parts. Part I provides the general theoretical framework discussed above. What follows are essays arranged in broad thematic sections that focus on different aspects of harmonization. Part II looks at global human rights regimes. Jo M. Pascualucci addresses both incentives and impediments to harmonizing individual rights across legal systems. Emily R. Atwood focuses on the South African Truth and Reconciliation Commission and the International Criminal Court, exploring the relationship between national sovereignty and international legal norms.
Part III considers federal and quasi-federal systems. Melissa L. Tatum analyzes the difficulties of vertical harmonization among the three distinct governmental and court systems in the United States – federal, state, and tribal. Takis Tridimas looks at issues of horizontal harmonization by considering directives and framework legislation in the European Union. [*386]
Part IV focuses on public and private international legal regimes exploring convergence and divergence among roughly co-equal governance systems. Welber Barral considers transnational dispute resolution among the members of Mercosur – Brazil, Argentina, Uruguay and Paraguay. Seema Lal looks at the intersection between cultural nationalism and the desire of some nation states to protect cultural property with cultural internationalism and international conventions on maintenance and ownership of cultural property. Bruce Carolan looks at a little known area of antitrust law in the European Union noting a convergence of national laws around a particular antitrust norm. The final essay in this area by Beth Farmer looks at the shape of legal enforcement of global economic competition between the United States and the European Union.
Communication and the boundaries of harmonization is the focus of Part V. Vivian Grosswald Curran looks at how difficult integrating law can be, even among legal systems that share the same basic set of norms. She takes examples from China, France and Germany. While Gunnar Beck looks at these difficulties even within systems that might embrace integration. Beck looks at Common Law countries and the ebb and flow of development in European Community law.
Looking beyond the boundaries of harmonization, the sixth and final set of essays considers divergence and resistance to globalization. In probably the most interesting contribution in the volume, Christopher Stuart considers Islam’s relationship to globalization, looking at how Muslim and non-Muslim states interact with one another while trying not to be seen as losing fundamental aspects of their national or religious character. Because resistance to secular systems of norm-making is so great, and convergence or integration is impossible, but yet some connections are necessary in an era of globalization, Stuart’s analysis illustrates the complexities of legal harmonization in a way that the others cannot. Larry Catá Backer offers a counterpoint, by looking at the most positive example of the interrelationship between globalization and harmonization – the European Union.
Most of the contributors to this volume are lawyers which makes this material particularly dense and perhaps difficult to follow for many political scientists or their students. If digested in limited quantity, some of the individual essays may be profitably used to illustrate and discuss harmonization among both legal systems and political systems. In particular, the essays on South Africa, on Mercosur, and on Islam raise some distinct challenges and clear issues for scholars and students of globalization, both from a legal and a political science perspective.
© Copyright 2008 by the author, Carla Thorson.