Reviewed by Spencer Zifcak, Professor of Law and Director of the Institute of Legal Studies, the Australian Catholic University. Email: Spencer.Zifcak [at] acu.edu.au.
Legal theory can be difficult at the best of times. And this is particularly the case where what is being theorized is itself conceptually contestable.
There is a surfeit of literature on globalization but while we know that the phenomenon exists, it can be perceived from a seemingly endless procession of perspectives. In this book at least, the reader knows that what is being discussed is the globalization of law. That narrows the field. But as law is as diverse as its multiplicity of contents and arenas, those seeking to theorize it still face immense challenges in nailing down what a ‘global legal order’ might be and how its creation and elaboration might best be understood and made operational.
There is another problem too. Theory, at least in my view, is meaningful only in so far is it casts light on practice. If it is instructive only in the abstract, it may provoke intense interest and discussion in rarefied academic circles. However, its influence upon international law, politics or diplomacy is likely to be minimal to non-existent. From my perspective then, it is preferable if theory can be made accessible to key actors in the relevant fields, in this case in law and politics, and can illuminate their perspectives and inform their practices. In that light, the task that this book assumes is a formidable one.
The book is an edited compilation of papers delivered at a similarly named conference held at the University of Swansea in 2008. The chapters are diverse and eclectic. It is not easy to discern a consistent thread or threads by which they are linked. Nevertheless, the chapters, taken together, do provide some thoughtful and stimulating insights into how the global order might best be understood, and into the difficulties of joining those insights into a coherent understanding of its character.
The editors are clearly aware of the challenge. They conclude their introductory overview of the chapters as follows:
Although we have gained considerable understanding through surveying the rich insights provided by our contributors on the expanse and complexity of operating in a global context, we still have to address where the distinctive contours and concerns of a legal theory capable of supporting further fruitful work in this intellectually challenging and normatively significant arena may be found (p.23).In pursuit of that objective, the collection begins with three chapters that seek to provide theoretical overviews of the field of inquiry. H. Patrick Glenn opens by describing and advocating a cosmopolitan understanding of the [*154] global legal order. The essential core of the various forms of cosmopolitanism, he suggests, is “the moral duty each of us would owe to all the rest of us” (p.25). Pursuant to this ethical position, Glenn proposes that a cosmopolitan legal order may be characterized by a number of key values. Such an order would be open rather than closed. That is, it would not rest upon the foundation of Westphalian states, but states would be open to the receipt of influences from every geographical, intellectual, racial and even religious quarter. More particularly it would embrace transnational legislative, judicial and administrative dialogue and exchange. The legal order, then, stands in the midst of a swirl of multiple forms of legality. Cosmopolitan lawyers, Glenn concludes, do not adhere to any overarching theory of law. Instead, they work with and within a plurality of legal principles and practices. The chapter assumes, rather too readily I think, that cosmopolitan lawyering has already arrived but few can doubt that its pluralistic and democratic foundations are ethically desirable ones.
William Twining considers the implications of ‘globalization’ for law as a discipline. He also takes cosmopolitanism as his commencing commitment. He observes immediately however that such a conception is not to be considered as exclusively global. Instead, a cosmopolitan legal order will and does necessarily operate on a plurality of levels from the global to the local. The chapter makes a distinctive and helpful contribution by then identifying seven levels at which legal orders operate. These he argues are the global, international, regional, transnational, inter-communal, territorial, sub-state and non-state levels. This framework opens the door to a systematic study of each and the means of interaction between them. The chapter then proceeds to challenge a number of conventional assumptions underlying Western academic law, challenges that emerge in the current context of globalization. He questions whether law may, any longer, be seen validly as consisting of just two principal kinds of ordering: municipal state law and public international law. He suggests that modern state law can no longer be considered almost exclusively as a Northern creation. Southern voices need also to be heard. Perhaps most contentiously he challenges the idea that modern law, including human rights law, can properly be considered as universal. It is a thought-provoking and contemporarily relevant analysis.
Stefan Oeter completes the trilogy of introductory, theoretical overviews by proposing an institutionalist perspective. Reflecting on the place of law in the global order, he suggests, requires some model of what the global order looks like and what role international law might play in such an order. In response, the author suggests that we should conceive of the global legal order as an amalgam of rational choice and constructivist paradigms. The two theoretical perspectives are complementary. The rational choice perspective helps one to understand general patterns of interest and behavioural routines. The constructivist perspective provides the means through which to understand why specific actors behave in specific ways. Combining these perspectives leads one to conclude that the global legal order, such as it is, is a very fragmented one. The primary [*155] consequence is that international law-making is radically disaggregated and this leads to a diverse and often inconsistent body of legal rules. The unity of international law, then, is a fiction.
In a book theorizing the global legal order one might despair at this point in the face of an argument to the effect that such an order is nothing more than the complex interplay of a multiplicity of contradictory legalities. Not least are those that play and clash between the nations of the global North and South. Nevertheless, Oeter concludes, seemingly more in hope than in prospect, what is required to found a more coherent and collaborative legal order is some overarching normative project. A project that will assist humanity in meeting the severe global challenge of poverty and inequality which, in its turn, can lead to escalating violence, environmental degradation and huge flows of refugees and internally displaced peoples.
Following these introductory theoretical contributions the second part of the book consists of a series of chapters dealing with a range of more particular legal concerns. Ko Hasewaga and Catherine Dupre tackle the phenomenon of legal translation across national borders. Hasewaga understands legal translation as the process of adopting and adapting legal ideas, norms and interpretations present in one legal jurisdiction into another. He proposes three key steps in the process. A legal problem is identified in one jurisdiction and there is a realization that the law of another jurisdiction may assist in its resolution. Then, thought must be given as to how the foreign law might best be adjusted and applied to meet the needs of the receiving state. Finally, the receivers will develop ideas about how a change in the law resulting from translation is likely to improve their situation. This is straightforward enough. But all too frequently, Hasegawa dilutes and dissipates his observations in a welter of overly-complex language. So, for example, the three steps just outlined suddenly become processes of ‘isomorphic readiness’, ‘converting conceptualization’ and ‘ideational expectation’ respectively. This tends to obfuscate rather than clarify.
Catherine Dupre addresses the use of foreign and comparative law in domestic jurisdictions. She observes that judges in many Western jurisdictions in particular are making increased use of foreign and comparative law. This in turn reflects a wider transformation in the way that law is made that may reasonably be described as law’s globalization. One explanation for the escalating exchange of legal norms and rules may lie in the similarity between the constitutional foundations of liberal democracies and, therefore, the desirability and feasibility of one learning from the other. Dupre proposes in addition that the movement towards increasing legal importation has been encouraged strongly by a broad, but still contestable, recognition of the universality of human rights. However desirable this may seem, she cautions against the easy assumption that the importation of foreign and comparative law will always provide illumination. She makes the point that every decision to include some aspect of foreign law may involve a subsidiary decision to exclude some other aspect. She warns too, that judges should be alert not just to the apparent applicability of legal [*156] principle but also to underlying inter-cultural differences that may affect the validity and effectiveness of the principle’s importation.
Stephen Allen writes a thoughtful and practical chapter tracing the development and position of the Declaration of the Rights of Indigenous Peoples within the framework of public international law. He describes the background to the UN’s adoption of the Declaration and then seeks to assess what, if any, standing it may have within customary international law. In this context he considers the recent decision of MAYA v. BELIZE (2004), in which the Belize Supreme Court appeared to lend weight to the argument that both customary international law and the general principles of international law lead to a conclusion that the country must afford legal respect to the rights of indigenous peoples to own and manage their traditional lands and resources. Allen argues persuasively that no such conclusion may yet be reached, at least in so far is it draws international law in. The Declaration he concludes has principally aspirational rather than legal force. It remains properly and legitimately the task of domestic jurisdictions to turn the Declaration’s hopes into realities.
Christian Walter writes a final chapter that provides a constructively critical assessment of the judicial deployment of comparative law. The chapter summarizes briefly the differing ways in which comparative law has been used in the resolution of cases considered by the European Court of Justice, the European Court of Human Rights and the German Constitutional Court. Arising from these case studies, Walter assesses the costs and benefits of such legal importation. He identifies the principal costs as the prospect of arbitrariness in the selection of comparative material; the risk of inappropriateness in analogous reasoning across national boundaries; and the democratic deficit that may be present when courts rather than legislatures alter the law pursuant to international legal influences. The principal benefit, of course, is that dialogue that takes place between lawyers and judges in different states produces an openness to ideas that represents a formidable opportunity for courts to collaborate in pursuit of wider global objectives such as the protection and advancement of fundamental human rights.
In summary, then, this book provides the reader with an introduction to theories of global law, injects case studies that cast light on the processes through which it may develop, and engages periodically in helpful critiques of the notion of a global legal order and its mechanisms. For the most part (with the exception of a couple of chapters, not considered here, whose theorizing borders on the incomprehensible) this is done very well.
Returning to my opening remarks, however, my principal reservation about the work lies in the fact that because of the highly abstract nature of most of its theorizing and analysis, it is likely to be picked up only very rarely by those who are actually engaged in the institutions and processes with which the book seeks to deal. Academics may read it profitably. But politicians, judges, lawyers and diplomats are likely to eschew it in favour of more professional and practical, legal and political texts. [*157]
MAYA v BELIZE, Case 12.053, Report No. 40/04, Inter-Am. C.H.R., OEA/Ser.L/V/II.122 Doc. 5 rev. 1 at 727 (2004).
© Copyright 2011 by the author, Spencer Zifcak.