I will start this paper with two closely related remarks around a proposed title which may sound intriguing to some auditors, due to its speculative nature (“speculative”, in the philosophical meaning).
The first remark concerns an “e-mail discussion” between our friend Prof. Kuçuradi and myself about this title — “Law of Globalization and/or globalization(s) of Law » —, its « acceptability » within the framework of the ongoing conference, and, finally, the possibility to translate such issue (taking into account its different consequences) from the French into both the Turkish and English languages.
Prof. Kuçuradi replied positively to my proposal, which was neither obvious nor necessarily acceptable, (and I would like to thank her warmly for this) but nevertheless with a question about what was meant by “law” in the two separate “sides” of the title (“le droit” or “la loi” ?). I do quote Prof. Kuçuradi exactly: “A question: In your title, is the word ‘law’ used in two different senses? (la loi / le droit) or not? I have to translate it into Turkish.” Such point is undisputable, because, when elaborating an argument, a thesis, a theory, one can’t go far if considerable attention is not paid to its translatability(1). And, as a matter of fact, I have hereby put the barrier somewhat high, involving a philosophical discussion between the different existing and potential meanings of lex, law, droit et loi, which requires to be effective and relevant at least in Turkish, English and French — and this, moreover, not only for philosophers, but also for jurists, lawyers, political scientists, economists, anthropologists,…
To restate it differently, say that the problem is certainly not only appraising whether there is a “globalization of law” (an already normative question), whether there is a “lex of globalization”, and how both could co-exist within a common world. It is much more assessing:
i) the mere possibility and content of their “existence”;
ii) the related meaning of their co-emergence, if not “competition”; and
iii) the content of their conflicting and/or convergent answers (addressed to the present state of world, regional or national affairs)
Besides, in order to approach such questions properly, we must stress the larger framework in which they appear. In other words: a framework of global confusion where “opposite arguments” such as “spread of lawlessness is the basis for globalization”(2) and “there can be no globalization without law” do co-exist and compete without any kind of decisive arbitrage coming from the academic community.
Therefore, our problem does not only rely on a given title (the one I have proposed), a complex issue, a problematic couple, but also on the moving scene of what we call (in our GERM network): the scene of distinct ongoing globalizations, which cannot be reduced to a homogeneous and unique paradigm — that of the economic, financial and informational dominant wave of globalization.
Second, I will state the words pronounced in September 2004 by one of our colleagues who is Dean of the prominent Yale Law School (a quotation which may sound very “politically incorrect” due to its origin): “Over the course of my own career, as an academic, as a lawyer, and as a policy maker, that is the question I have wrestled with: what’s law got to do with globalization? As you pursue your studies here, I hope you will join me in thinking about three aspects of law and globalization that I call: law as globalization, law in globalization, and the law of globalization. By law as globalization, I mean, how is the worldwide reach of law itself a feature of the phenomenon of globalization, just like the spread of global culture, or global communications? By law in globalization, I mean, what role does law play or has law played in promoting the positive face of globalization. And by the law of globalization, I am asking: does global law have a distinct face? How does global trade law differ from domestic trade law? How does global criminal law differ from domestic criminal law? Do we now have a uniquely global law? Obviously these are questions that will take a lifetime to answer, but we should start here.”(3)
I felt happy to discover these words after elaborating and fixing the present title of my paper. Indeed, I do share the view that Dean Harold Hongju Koh has made a good job in addressing his Faculty staff (and students?) such questions which are —despite their alleged “simplicity”— not normative at all, and even less adequately investigated.
As a matter of fact, we need huge efforts to think simultaneously, as our colleague suggested: “the law as globalization, the law in globalization, and the law of globalization”. Huge efforts seem to be required from us, because all of us are used to sleep comfortably on what we may call “the well-known of globalization”(4). And this well-known does not like speculative approaches as the one suggested by my title or the other one proposed by Harold Hongju Koh. The normative discourse on globalization claims it clarifies the relations between law and globalization. E.g. whether law favours globalization (makes it go faster, farther and “better”) or whether law exercises a constraining and limitative power on globalization (forcing its path of expansion to decelerate)… But all of that remains in the “well-known”, which does not like to envisage a more complex story (or: combination of possibilities) between law and globalization.
Following these remarks, and from now on, I will restrict my current presentation to the theoretical elaboration of some interrogations and tools allowing our “critical couple” (law and globalization) to be revisited on a less normative and more productive way:
1) What kind of “law” or “lex” is required or desired by Globalization conceived as a project? — an interrogation that will recoup the one about “law of globalization”;
2) What stories or scenarios hide behind the complex relations between law and globalization? — another interrogation converging with that about “law as globalization”;
3) What would be a “globalization of law” which would not be submitted to the “no limit!” imperative of the dominant ongoing globalization (economic, financial, informational), and which could also be welcomed and shared as a major human conquest? — a final interrogation that will join the one about “law in globalization”;
As Dean Koh himself underlined, you will agree that “these are questions that will take a lifetime to answer, but we should start here”…
1. What kind of “law” or “lex” is required or desired by Globalization conceived as a project ?
Here, I will try to clarify the first “side” of my preliminary interrogation, which splits into two separate investigations, which are not exclusive, but should on the contrary be led simultaneously.
I recall that Dean Koh formulated his own understanding of “the law of globalization” as follows: “by the law of globalization, I am asking: does global law have a distinct face? How does global trade law differ from domestic trade law. How does global criminal law differ from domestic criminal law? Do we now have a uniquely global law?”
Indeed, this is a first and interesting way to ask the question, because the focus is de facto put on the so-called “newness of Globalization”, a leitmotiv — which is inherent to the normative media and political presentation of the alleged “fact” or “phenomenon” of globalization: as something intrinsically new, informing a brand new era, and involving new modes and patterns of thinking and acting. It means: should we pay attention and allow credit to the common sense presentation repeating to us daily that “Globalization” (with a big “G” and the singular) is historically new, and that it therefore supposes —inter alia— a new “global law” besides normative law and its different sections, in order adequately to follow, favour or control its expansion?
When he stresses “Do we now have a uniquely global law?”, Dean Koh also targets another critical aspect: i.e. that we should further investigate the pretension raised by many Globalization champions that the law (as the economy at large, the society, values, habits…) has already been substantially modified by the globalization process, and that it is also “a fact” (as Globalization is said to be) to which we should adapt — and not the reverse! Yet, Koh leads us to the following critical interrogation: — is our present choice limited to consider that:
a) Globalization involves a new and separate law system for the expansion of its phenomenon?(5)
b) a “global law” is already effective, de facto substituted to existing forms of law, whatever we may think of its desirability and relevance ?
but also: — is there any kind of rational way out from these two options?
Indeed, there is (at least!) another and very productive way of questioning “the law of globalization” concept, and a way closely linked to the understanding of consequences of a choice between terms a) and b) of the previous alternative.
This way is to interpret the expression “the law of globalization” as a speculative genitive. Meaning that this “law of globalization” does not refer only to the requirement by Globalization of a “new law” in accordance with its own alleged “newness” — but it also defines a much more imperative (if not totalitarian) approach to the issue. That is: “the law of globalization” understood as a “lex globalizationis”, in the sense of physics and mathematics. A “law of globalization” which should be appraised in terms similar to the so-called “law of the market”. A law which would no longer remain a true modern and contemporary Law, but which would go back to a pure hegemonic view, still referring only to “law” in a metaphorical way, but imposing in the facts its huge power of constraint — will it be on the economic, political, cultural, environmental, diplomatic or strategic arenas?
This again amply justifies the interrogation made by Prof. Kuçuradi, when she wrote to me: “la loi ou le droit?” And I have to thank her again, while I once again answer her interrogation by the word: “both”!
I repeat “both” in the sense where the Latin “lex” — and its Roman reference or index — includes and reveals this ambivalence of a “lex globalizationis” which pretends to also be a “lex globalizatrix” — to be simultaneously “le droit” et “la loi”; but “la loi”, “law” or “lex” in the economical, physical and mathematical sense. Following this idea, a completed “globalization of law” would precisely be that in which “le droit” et “la loi” would be the same everywhere, allowing Globalization (conceived as a unique and unmatched Project) to deploy all its effects worldwide, and without any more frontiers, barriers, limitations. A unique “law” (in the sense of “law” in the vocabulary of mathematicians, economists or physicists: law of Pythagoras, laws of Newton…) and a single “law” (in the sense of the traditional jurists and lawyers’ law) would therefore appear as “critical factors and key success issues” (as marketing academics use to say) for the achievement of the Globalization project.
Following this analysis, and only one step farther, we could even re-interpret the ongoing dominant wave of globalization (claimed for by its supporters as “Globalization’ in the singular) as the spreading out of a project for which —in se and per se— law is “invited in” becoming unique, single, unified: a global law allowing no possibility of further discussing the fact that Globalization is both “ a fact” and “the lex”….
2. What stories or scenarios hide behind the complex relations between the law and globalization?
Notwithstanding the previous picture, which may appear a bit too dark for many, thedynamic of globalizations (in the plural!) does offer other scenarios than the one which is promoted by supporters of “mainstream” economic globalization: as the only one desirable and “sustainable”…
From a philosophical standpoint, we remain very serene when faced with ultimate figures of a very common attempt (in the history of ideas) to mobilize the scene while trying to convince everybody that there is a right way and a single one, which would precisely be the globalization path paved by neoliberal economic policies. History is full of such exclusive stories imagined and forged by oligarchies fishing for arguments dedicated to their people, and whose objective is limited to the consolidation of their position and attributes.
It is therefore a natural philosophical reply neither to adhere to the dominant Globalization’s discourse nor to take it for granted, but, on the contrary, to make the following objections:
i) the present neoliberal paradigm of and for Globalization should be analyzed in the light of alternative Globalizations projects and paradigms, which are numerous and increasing “worldwide”(6). Therefore, as philosophers, jurists, lawyers, legal (national and international) authorities would be well advised not to stick to the so-called imperatives of Globalization (which requires exemptions, exceptions, renunciations, dismissal of national law…), but to keep their usual distance in front of (world, society, economic, cultural…) transformations self-presented as “major”;
ii) the “newness factor” of present Globalization wave should also be investigated and criticized. This point is critical not only from a historical standpoint (history as a discipline usually remains sceptical when faced with alleged “newness”, and so does philosophy), but also from a legal (or law) standpoint. Indeed, many arguments in favour of major law transformations (in all the law sections) today rely upon the following basic argument: “new world = new framework = new law”. And a careful investigation of what has actually changed on the international economic, political, cultural and social scenes should not push to much in favour of a radical de-construction / re-construction of international and national law that would be motivated by invoked “new conditions” created by the present economic Globalization;
iii) finally, the argument of the “unavoidability and desirability” of the present Globalization pattern should also be analysed and pursued under all its figures and contradictions. De facto, the normative “debate on Globalization” is especially confusing because it is centred around two “vicious circles”, i.e.:
a) a purely moral interrogation (is this globalization that we all currently experiment mostly positive or negative?) evacuating any subsequent (or preceding) ontological and epistemological interrogations about the essence and conditions of emergence of such globalization; and:
b) a dominant interpretation circulated by a majority of “opinion leaders” (whether economic, political or media people) which tries to sell us the idea that we don’t have alternative to the accommodation with globalization, because the present globalization pattern and phenomenon would be a mere and inescapable fact!
Why is this so important for our issue? Indeed, consequences in the legal field ou field of law of such “convictions” (unavoidability and desirability of globalization) are considerable, because they artificially push jurists and lawyers to consider that they have to —if not elaborate an entirely new “global law” in accordance with the so-called “globalization era” or momentum— at least adapt the existing law to alleged globalization requirements, as if it was a (moral?) duty of the law to favour and facilitate the Globalization project.
In order to make this last and critical point clearer, I will quote the analysis provided in 2001 by Prof. Klaus Peter Berger: ““In the modern globalized business environment businessmen seek to reduce transaction costs and to increase economic efficiency. The transaction costs involved in the application of domestic laws to transnational commercial transactions have always been regarded as hampering the development towards globalized markets. The application of foreign law is regarded as the “globalization trap”, the division of the world into different legal systems can be regarded as a non-tariff trade barrier. The fathers of the lex mercatoria doctrine have always emphasized that economic factors —and above all the strive for enhanced productivity, for rationalization of production and for the reduction of transaction costs as well as the development from domestic and regional to world markets that goes along with these developments— have a significant impact on the evolution of a transnational system of law”(7).
Berger reminds us by the way that law —and especially national or “domestic” law— is, on the first hand: a natural enemy of globalization (like taxes, tariffs, fiscal authorities and regulations…); but, on the other hand, an enemy who is supposedly compelled to reconcile with globalization, in order to survive as the law within the framework of a present and future world projected to be driven by… globalization forces.
And this last consideration also drives us back to the first point made by Dean Koh, when he asked his colleagues to think into “the law as globalization”, which looks like a very attractive and dialectical figure (and cycle) offered to our reflection and discussion:
a) first, all things happen as if law was the true opposite of, or better: the antidote to globalization;
b) but, second, law and globalization apparently sign a “pact of non-aggressiveness”, if not: “of cooperation” ; and:
c) finally, law is re-considered as the best vehicle for Globalization; it seems even imaginable that their destinies could “merge”, so that it is actually possible to envisage, as Koh says: “law as globalization”.
It is precisely such a scenario (absolutely realistic, and fitting with many objective national and international situations) that should attract our critical attention: from philosophical, historical and juridical standpoints simultaneously. Because the expression “law as globalization” should not be conceived as a “solution” to a vast and complex issue. From a very different standpoint, we should hear and read it as an oxymoron, which designates the limit of normative Globalization understanding. Because, in other terms, we could say of what’s happening in the global scene: either “it is the law, and it is not globalization any more (or not yet)”, or “it is globalization, and it is not law any more (or not yet)”!
The provocative argument of “law as globalization” will therefore appear itself as the very borderline on which things are decided upon — meaning: should we go:
i) towards a Globalization absorbing and recycling Law in order to fulfil its project? or:
ii) towards Law succeeding in submitting Globalization to its own imperatives and requirements?
3. What would be a “globalization of law” un-submitted to the imperatives of dominant Globalization, and to be shared as a major human conquest?
Another way to entitle this last section of my paper would be to summarize it in Dean Koh’s terms, stressing that, following a first section assessing “the law of globalization” issue and a second one investigating “the law as globalization” issue, the final one now confronts us with “law inglobalization”, an equally critical issue.
And to make my present point even clearer, I will restate the definition provided by our colleague when he suggested: “By law in globalization, I mean, what role does law play or has law played in promoting the positive face of globalization”.
We actually need to re-valuate such an assertion after our short trip. Why? Because, in my view, these three interrogations should be considered as different paths that we may successively explore and experiment— ways which are not known a priori by us, but each requiring an individual inquiry before a comparative one.
But, as a matter of fact, the two distinct paths previously analyzed (“law of globalization” and “law as globalization”) drive us nowhere else than to a triumphant globalized private space where law could well be considered as a very poor value — without speaking of Human rights and democratic ambitions. On the contrary, they are two different ways and means of fostering Globalization, and of replacing any political agenda by Globalization imperatives: less Rule of Law, less normative laws, less social protection, less employment security, less individual protection, fewer environmental criteria — always fewer and fewer laws, regulations, tariffs, taxes, compensation and indemnities for the weaker.
Therefore, even if they look very different and correspond to different economic-social-political strategies, “the law of globalization” and “the law as globalization” paths converge in their appetite of destruction of numerous features of the present socio-political scene, and in their celebration of Globalization… revered as a truly “global solution”.
But this is not true for “the law in globalization” way, which may be envisaged as a real alternative to be promoted by all those who share the view that “Globalization” can in no way be reduced to a single and sole option, and spread as such. From this standpoint, the UN Convention of Palermo was a very positive sign, and more recent geopolitical developments may confirm the importance of such a critical move(8).
The fact is that, despite a present gloomy domestic and international atmosphere, as we enter the year 2006, it is compulsory to mention that the previous one, 2005, was indisputably featured by some new very “positive signs”: precisely in the direction of “law in globalization” way — which all of us hereby understand as intrinsically long and difficult.
I will not offend the present audience of experts by detailing the thin catalogue of good “global news” in the law front. We certainly need to review and assess it step by step, which is probably projected under the scope of the present conference, or has already been achieved by our colleagues. Let us only recall that the Kyoto Protocol has finally been put into force eight years (!) after its signature, and that the UN Convention on Climatic change held in Montreal on last November was very widely considered as a success (after a series of failures, delays and deceptions in this field). Let us also recall that the “International Criminal Court” (ICC), which was anticipated to be born-dead, is currently functioning not too badly and with a considerable agenda. Let us finally stress a major issue, on which all in the GERM network were very active since the year 2000: i.e. the cultural diversity issue and, following Unesco’s Universal Declaration of November 2001, the Convention on the Protection and Promotions of the Diversity of Cultural Expressions, approved after a emblematic and tough debate of the Unesco General Conference in October 2005.
I will briefly come back on this last event, which —despite its relative notoriousness— has not yet been sufficiently analyzed under all its consequences at this stage, while describing such momentum precisely as a conquest of the 1948 Universal Declaration on Human rights, defining and articulating “cultural rights” as “human rights”, since this starting point, the issue was never caricatured — which was often the case during the 1990’s— as “Globalization or the law”.
Second, because Globalization has been amply discussed, during the debates of the Unesco member community, under its different and conflicting figures and projects: not as something well identified and unique, but as the very dynamic of the ongoing international debate, with its contradictions, failures and occasional successes — therefore it remained and was effectively possible and most relevant to introduce “the law in” the huge and multi-faceted cultural Globalization process, via these two complementary achievements: a) the 2001 Universal Declaration, and b) the 2005 international Convention on cultural diversity.
Third, this process should be considered as a very promising paradigm in the sense that it has succeeded in breaking the monolithic discourse of triumphant Globalization without (and this is a performance!) doing so by only splitting supporters and critics of neoliberalism on the two sides of the arena. On the contrary, it has contributed to widely opening the debate beyond the normative “pros” and “cons”, far away from usual caricature, and in transforming the previously ghettoised “cultural diversity issue” in a major geopolitical and philosophical discussion about the kind of present and future world that is desired by or desirable for those who are in charge of defining its new frontiers and features. And such a critical (transnational, transdisciplinary and intercultural) move seems to me also obviously true from the last Kyoto Protocol and ICC debates.
Finally, could we say that “all things happened” as if we had experienced, during this unsatisfactory and requiring year 2005, at least that the most used diplomatic methods, strategic modes of confrontation, patterns of discussion… were no more viable in order to answer the most critical issues of our time? That maybe the time has come for such an Aufhebung, in the Hegelian vocabulary, whereby we should go farther and differently while not forgetting and leaving the ancient world and way of “governing” it. That maybe the time has gone of a governance that won’t be “global” —because a real “Global governance” would be mere tyranny—, but who could or should be both philosophical and juridical? The governance of a world inhabited by citizens that are still true and effective– rather than governance of a “globe” populated by pure “consumers”... Governance organized by philosophy and law reconciled and cooperating together, in order to submit to political representatives and leaders: philosophical and juridical tools and means of i) thinking ongoing transformations; ii) elaborating “inclusive” answers to these transformations, and: iii) “governing” such world transformations and their complex dynamics, while preserving a authentically political standpoint, motivation and objective… I’ll leave you the answer to such oniric digression!
(1) «Translatability aims at comprehension, whereas encounters between cultures or interactions between levels of culture either involve assimilation or appropriation by making inroads into one another, trying to get out of a different culture or the different intra-cultural levels what seems attractive, useful, or what has to be combated and suppressed for whatever reasons. » Wolfgang Iser, in Surfaces, vol. 4, University of Montreal, 1994.
(2) E.g. : « In creating this “world without borders” advocated by free-traders, we have also brought about a world without laws. Without underestimating the social and ideological roots of violence, nor the often legitimate grievances that underlie it, it is the extreme permissiveness of the economic globalization environment that is at the heart of the terrorist excesses we are suffering today. » Kimon Valaskakis (former Ambassador of Canada to OECD), in : Et la mondialisation?, La Presse, Montreal, 10/29/2001.
(3) Dean’s Welcoming Speech, Harold Hongju Koh, Yale Law School September 2, 2004. http://www.law.yale.edu/outside/html/Public_Affairs/503/KohWelcomeAddress.pdf
(4) Referring to the hegelian « well-known » in the Phenomenologie des Geistes (1807) : « Le bien-connu en général, pour la raison qu'il est bien-connu, n'est pas connu. C’est la façon la plus commune de se tromper et de tromper les autres, à propos du connaître, que de présupposer quelque chose comme bien-connu, et de l’accepter ainsi ; avec tout ce discourir à tort et à travers, un tel savoir, sans savoir comment cela lui advient, ne bouge pas de place. », in G.W.F. Hegel, Phénoménologie de l’Esprit, Préface, p. 92, trad., prés. et notes de Gwendoline Jarczyk et Pierre-Jean Labarrière, Editions Gallimard, Paris, 1993.
(5) Cf. the article by Ralf Michaels (Professor of Law at the Duke University School of Law) : Welche Globalisierung für das Recht? Welches Recht für die Globalisierung? [Which Globalization for the Law? Which Law for Globalization?], 69 Rabels Zeitschrift für ausländisches und internationales Privatrecht, 525-544 (2005).
(6) Singularly, the globalization of transnational, transcultural and transdisciplinary fights against War, intolerance, religious and political oppression. One of the most emblematic figures of this multi-faceted global movement certainly remains the World Social Forum born in 2001 in Porto Alegre (Brasil), and whose objective is to mobilize the international civil society towards the construction of alternative (to the neoliberal recipe) « global governance » proposals in all critical fields (from commercial to pandemic issues, passing through access to energy, water, democratic rule and cultural diversity preservation). Is it necessary to recall that the founding motto of this WSF is « Another world is possible » — also meaning: other globalizations?
(7) Klaus Peter Berger. 2001. Transnational Commercial Law in the Age of Globalization.
(8) « The Convention of Palermo is of historic relevance for the high number of participating countries and is the first legally binding international treaty of the 21st century promoted by the UN. In order to repress the illegal activities that a globalization without law is fostering and stirring up, and that no state jurisdiction is able to cope with, because its law enforcing domain has boundaries limited to those of the state’s sovereignty, a legal globalism is needed. » in The Federalist Debate, 1/2001, March 2001. Cf. also a summary by Terre des hommes: “In November 2000 the Convention of Palermo was adopted by the United Nations as a document of criminal law to suppress transnational criminal activities and improve legal cooperation. Its purpose is to go further than existing instruments by covering the whole area of criminal activities of a transnational, organized nature. It is supplemented by two additional protocols, on trafficking in persons, especially women and children (Protocol of Palermo), and on smuggling migrants. »