Sociology of Law
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Law Under Globalisation
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Term Paper
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Appu Lenin
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MA Sociology II Semester
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Department of Sociology, JMI New Delhi
An attempt to summaries the impact of Globalsation on Law and also attempting to understand the dynamics through which Global North-South addresses the emergent issues.
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Globalisation
In some contexts the term Globalisation is used to refer to economic relations within a single “world economy”. This usage is illustrated by “the anti-globalisation” movement that is directed mainly against the dominance of the world economy by capitalist ideology and practices associated with a few powerful countries and institutions. This is narrow in two ways: it refers to only one set of relations and it is mainly confined to the world treated as a whole. Here “Globalisation” is used in a broad sense, following Anthony Giddens[1], to go beyond economics to include any processes that tend to make human relations --economic, political, cultural, communicative etc-- more interdependent. Sometimes this refers to the world as a whole, i.e. those relations and issues that are genuinely worldwide; but sometimes it refers to relations that transcend national boundaries to a greater or lesser degree.
One needs to cast a sceptical eye on talk about “global law”, “global lawyers”, “global law firms”, or “global legal culture” because so many generalisations about so-called “global” phenomena are exaggerated (“global” means widespread) or conflate aspiration and reality (the International Criminal Court aspires to be global, but it is not there yet) or they are superficial, ethnocentric, misleading, meaningless, speculative, exaggerated, false or a combination of these.
A high proportion of processes referred to as “global” operate at more limited sub-global levels. These levels, insofar as they are spatial, are not nested in a single vertical hierarchy --galactic, global, regional, national, sub-state, local and so on. A picture of patterns of law in the world needs to take account of regions, empires, diasporas, alliances, trading partners, legal traditions and families and so on. The British Empire, the English-speaking world, religious diasporas, the common law world, “the Arab world” even so-called “World Wars” are all sub-global; so it is misleading to talk about them as if they apply to the world as a whole. These sub-global patterns are crucial --especially for lawyers. Treating all human rights law, and even public international law as genuinely global in most respects is an exaggeration. It also blurs distinctions between aspiration and reality. It is difficult to generalise about legal phenomena across traditions and cultures, but insofar as there are reasonably clear patterns, most of them tend to follow sub-global arrangements: the European Union, the English-speaking world, the common law world, the former Soviet bloc, former empires, religious and ethnic diasporas.
This does not involve making any strong assumptions about uniformities or convergence. A global perspective involves looking at the world and humankind as a whole and setting accounts of particular phenomena in the context of broad geographical pictures and long historical time-frames. The world is becoming more interdependent and one needs to adopt a global perspective to understand these processes in relation to law.
Our world still has relatively finite boundaries in a way that societies and nation states increasingly do not. Adopting a global perspective is mainly useful for setting a context for more particular, typically local, studies, which will still continue to be the main focus of our discipline.
Globalisation is already having, and will continue to have, a major impact on the landscape of specialised legal fields. But this is happening in different ways. Some clear trends are already apparent. First, greater emphasis is being placed on established transnational fields, such as public international law, regional law, international trade and finance (including lex mercatoria and Islamic banking and finance), and environmental law. New transnational fields are emerging, such as Internet law, procurement, and transitional justice. Since 9/11 international criminal law has been given a boost. From a global perspective the North-South divide is of crucial importance, and this makes issues of world poverty and “law and development” much more central for the discipline of law and legal theory than they have been in the past. As was noted above, since about 1990 there has seen a spate of “rethinkings” in several transnational fields. A second obvious development is an increased recognition of the legal dimensions of issues and phenomena that are genuinely global, such as climate change and other environmental issues, radical poverty, the common heritage of mankind, migration, war, international crime, terrorism, pandemics, and the media.
Third, and less obvious, there is a growing emphasis on the transnational dimensions of subjects previously perceived as domestic, such as contract, criminal law, family law, intellectual property, and labour law. For example, in family law, issues relating to the interests and rights of children in respect of labour, custody, adoption and abduction across national borders, and the sex trade.
Fourth, increasing attention is being paid to diffusion of law generally, and specifically of religious and customary practices through migration, their interface with municipal state law in Northern countries, and the fact that religious and ethnic minority communities have institutionalised social practices that are not officially recognized. Finally, today no scholar, or even student, of law can focus solely on the domestic law of a single jurisdiction. Every law student in the United Kingdom encounters European Community Law and, directly or indirectly, the European Convention on Human Rights.
Here are a few impacts of Globalisation on Law:
(a) Conceptions of law
In the twentieth century nearly all mainstream Western legal theory and legal scholarship focused on the domestic law of municipal legal systems, sometimes extending to public international law in the narrow sense of law governing relations between states (‘The Westphalian Duo’). Recently, regional law has complicated the picture. Today, a map of law in the world that leaves out religious law, important forms of indigenous, customary or Cthonic law[2], or emerging orders (e.g. the new lex mercatoria[3]), just leaves out too much. From a global perspective a reasonably inclusive picture of law in the world would encompass various forms of non-state law, especially different kinds of religious and customary law that fall outside “the
Westphalian duo”.
There are, of course, problems of conceptualisation and strong claims about the importance and distinctiveness of state law, but it is difficult to believe that anyone seriously maintains that such phenomena do not exist or should not be a concern of legal scholarship. For legal theorists a recurrent puzzle is how to construct conceptions of law, which are broad enough to include important types of non-state law, but which do not include all forms of social rules and institutions. “The problem of the definitional stop” has revived discussion about broad and narrow conceptions of law, the relative distinctiveness and importance of state law as a legal form, and how far liberal ideas of democracy, the Rule of Law, distributive justice, and human rights are dependent on the survival and flourishing of the modern bureaucratic state.
Non-state law is not important only in the Global South or non-Western countries. In Western countries with significant migrant communities it is an increasingly salient phenomenon, not only in respect of the interaction of non-state norms with state law, but also as institutionalised social practices that operate independently of the municipal legal system. How can a teacher of UK municipal law concerned with mortgages, or consumer credit, or small businesses today ignore Islamic banking and finance? Riba[4] is now part of the picture of domestic law in England and Wales. Similar concerns apply to family law, succession, and criminal law.
(b) Borders
Impermeable territorial boundaries and exclusive state sovereignty are increasingly challenged. Talk of “a borderless world” or “the end of sovereignty” are no doubt exaggerated, and the right to national self-determination is still a powerful doctrine in this post-colonial era. However, “black box” theories of societies and nation states are no longer tenable. The European Union has taught us to accept ideas about the divisibility of sovereignty. Doctrines of humanitarian intervention further undermine strong doctrines of state sovereignty. Sociologists are now regularly challenging the utility of “society” as an analytic concept. John Rawls’ theory of justice, which is confined to societies as self-contained units, just does not fit today’s picture of human, social, and economic relations in the world. None of this means that the nation state is in terminal decline and that national boundaries are no longer significant, but it does mean that we can no longer treat domestic law as if it is self-contained.
(c) Monism and normative and legal pluralism
Legal monism, sometimes referred to as “state centralism”, maintains that sovereign states claim and exercise a monopoly of legal authority and legitimate force within the territory over which they have jurisdiction. However, if one accepts some conception of non-state law this opens the way to recognition of situations of legal pluralism, that is the co-existence of two or more legal orders in the same time-space context.
From a global perspective, legal pluralism is a very important phenomenon at all levels of ordering, both within and across levels. If one separates out broader issues that belong to the general theory of norms, or problems of conceptualising law, or ideological issues about “the state”, it is relatively straightforward to conceive of legal pluralism as a social fact. Its scope depends in large part on one’s conception of law. Once the broader theoretical issues are distinguished, most of the interesting questions about legal pluralism are empirical and need to be set in some broader intellectual framework, including that of orthodox jurisprudence. Legal and normative pluralism is now quite widely recognized as a significant phenomenon in most transnational subjects. In multicultural societies --which today means most societies -- it is increasingly relevant to the study of domestic law, but in different ways for different fields.
(d) States and bureaucracy
In Western traditions the main focus of academic law has been on state legal systems. Some variations in types of states are recognized, but there is a tendency to assume some model of “the modern constitutional state”, which is conceived of as rational-bureaucratic and instrumental, typically, but not necessarily, underpinned by some version of liberal ideology. While nearly all members of the United Nations and many international organizations are institutionalised in accordance with some model of bureaucracy, large parts of the world’s population live in societies and communities that are differently organized. This is especially the case in countries involved in civil war, or where the state is weak, corrupt or otherwise ineffective. It is also worth remembering that state law tends to be more urban than rural. As political scientists and constitutional theorists recognize, formal membership of the United Nations conceals the wide variations between states.
National legal traditions crystallize in many different forms, some close to the European model, or models, others far removed from them. Diversity emerges in the choice which the members of each state make as to its constituent elements. The tradition of a national legal system creates no obstacle to this, since systems are defined only in terms of ensembles with interacting elements. The general lesson is that one should not assume that Western models of the state or state legal systems fit all situations.
(e) Challenges to top-down perspectives
Perhaps a more contentious proposition is that Western academic legal culture tends to adopt the standpoints of sovereigns, rulers, legislators, judges, officials and elites, without much regard for the points of view of users, consumers, victims, litigants, and other subjects. Emphasis on multiple perspectives and differentiation of standpoint in understanding law has developed largely independently of globalisation. However, from a global perspective we live in a post-colonial era that emphasises various forms of “subaltern” perspectives: for example, resistance to colonial impositions, international law from below, user perspectives on law. Baxi[5] argues that the main authors of human rights are communities in struggle rather than Western thinkers. They are not “a gift of the West to the Rest”. The topic of understanding law from different standpoints is too complex to pursue here. Suffice to say that “globalisation” has given a stimulus to re-considering law from different points of view.
(f) Transplantation, reception, diffusion
From a global perspective a map of state law in the world inevitably depicts a continuous story of interaction and diffusion. Legal traditions have interacted with each other throughout history. Until the mid-twentieth century, imperialism and colonialism were probably the main, but not the only, engines of diffusion of state law. In comparative law it has sometimes been assumed that modern state law is almost exclusively a Northern (European/ Anglo-American) creation, spread through nearly all of the world via colonialism, imperialism, trade and more recent neocolonial influences. This provided one justification for concentrating largely on “parent” legal systems. In the post-colonial era the processes of diffusion have been perceived to be more varied and there is a growing realisation that diffusion of law does not necessarily lead to convergence, harmonisation, or unification of laws.
(g) Doctrinal and institutional perspectives on law: the issue of surface law
In the Anglo-American legal tradition rivalry between doctrinal and institutional conceptions of law and between “black letter” (expository) and socio-legal approaches to legal studies is of long-standing. On the whole, the mainstream has been dominated by doctrinal conceptions and approaches, but not to the complete exclusion of empirical legal studies. There is widespread sympathy for the idea of law as institutionalised normative order or as institutionalised social practice even from those whose main concern is with doctrine. To date empirical comparative law and other kinds of transnational socio-legal work are not well-developed. However, as comparative law, diffusion, and issues about convergence, harmonisation and unification of laws become more salient, it is more than ever important to penetrate beneath the surface of official legal doctrine to reach the realities of all forms of law as social practices.
“Surface law” does not mean law that is only on the surface. Rather it is concerned with the realities of “law in action” is as important from a global perspective as it is for more traditional understandings of law.
(h) Secularism and religious revival
It is commonplace in some quarters to talk of “a secular age” and of modern society as being predominantly secular. There is even talk of human rights as a form of “secular liberation theology”. From a global perspective, that seems parochial. Rather, demographers of religion argue that this is an era of religious revival, not only in respect of Islam, but of Christianity, and Bhuddism. This is not only in the “Global South” --consider the challenges to Kemalism in Turkey and the rising importance of Islam in most Western countries. Of course, “secularism” has several meanings: it can mean anti-religious, or non-religious, or it can refer to a doctrine or policy that the modern state should be independent of and a neutral arbiter between religions.
In an important recent book, Abdullahi An-Na’im has argued that throughout history Islam and the state have normally been considered as separate and the idea of an “Islamic state” is a deviation, based on European ideas of state and law. It does not follow from this that religion should be excluded from public life, but rather that state policies and legislation should be based on civic reason, that can include religious ideas, but does not involve the implementation of religious doctrine as law. Conversely, for believers human rights as moral, political and legal rights cannot be justified on secular premises alone; their legitimation must be grounded on the cultural premises of different belief systems. Since most modern societies are multi-cultural and multiethnic, this thesis has important implications for domestic civil and constitutional rights as well as for international human rights.
(i) Universalism and belief pluralism
Western Jurisprudence has a long tradition of universalism in ethics. Natural law, Kantianism, utilitarianism, and modern theories of human rights have all been universalist in tendency. Nearly all such theories have been developed and debated with at most only tangential reference to and in almost complete ignorance of the religious and moral beliefs and traditions of the rest of humankind. When differing cultural values are discussed, even the agenda of issues has a stereotypically Western bias.
How can one seriously claim to be a universalist, if one is ethnocentrically unaware of the ideas and values of other belief systems and traditions?
From a global perspective, the world today is characterised by a diversity of deep-rooted, perhaps incommensurable, belief systems. One of the main challenges facing the human race in a situation of increasing interdependence is how to construct institutions and processes that promote co-existence and co-operation between peoples with very different cosmologies and values. Globalisation has stimulated a revival of old debates between universalism and cultural relativism. It has also provoked the long-running “Asian values” debate, in which claims that human rights are specifically Western and incompatible with more communalistic cultures have been strongly contested, not least by leading thinkers of Asian origin, such as Amartya Sen.
(j) Ethnocentrism, parochialism and ignorance of other traditions
Ethnocentrism means “culturally biased judgement” or “a tendency to look at other cultures through the filter of one’s own cultural presuppositions”. As the discipline of law becomes more cosmopolitan we need to become better acquainted with the leading thinkers and salient ideas and controversies in other legal traditions and to extend our orthodox canon of juristic texts. Until now non-Western law and jurisprudence has been considered the province of specialists. Despite criticisms of “orientalism”, there has been some excellent work by Western scholars on Islamic, Hindu, Bhuddist and Chinese legal thought.
Conclusion
There are relatively few genuinely global issues and phenomena. For the most part a global perspective is useful for setting a broad context for more particular studies. Globalization and increased interdependence at sub-global levels will be perceived to have different implications for different specialisms. That is for the specialists to work out. The “ideal types” of mainstream traditions of academic law, comparative law, and diffusion may suggest that academic legal culture in the twentieth century has tended to be state-oriented, secular, positivist, “top-down”, North-centric, unempirical, universalist in respect of morals, and rather parochial, even ethnocentric, in respect of focus, audience, sources, and perspectives. These broad and rather crude propositions are intended to signal important points at which quite widespread assumptions look questionable if one adopts a global perspective. It is intended not so much as a sweeping and radical critique of Western academic law, but more as a check-list of points where some rethinking and adjustments may be necessary in different ways for different areas of specialisation. For some it may involve “a paradigm shift”; for others a gentler broadening of horizons. It is not part of my argument that we should move over lock stock and barrel to a global discipline of law based on some grand over-arching theory. Law is a practical subject that on the whole requires particularistic local knowledge and a focus on detailed, specific, sharply defined issues.
A global perspective can provide context and specific challenges. We should not abandon our heritage, but rather set our scholarship in a broad context, critically examine the underlying assumptions of received learning, and have at least a working general knowledge of other traditions and belief systems.
References
Abdullahi An-Na’im, (2008) Islam and the Secular State: Negotiating the Future of Shari’a. (Cambridge MA: Harvard University Press).
Amartya Sen (1997) “Human Rights and Asian Values: What Lee Kuan Yew and Li Peng don’t understand about Asia” July 14&21
H. Patrick Glenn (2004) Legal Traditions of the World (2nd edn., Oxford: Oxford University Press)
William Twining (2000) "Comparative Law and Legal Theory: The Country and Western Tradition” in Ian Edge, Ian (ed.), op. cit, 21; cf. GLT Ch. 7.
[1] Anthony Giddens (1990) The Consequences of Modernity Stanford: Stanford University Press at p.64.
[2] (law) A system of law centered on the sacred character of the cosmos.
[3] The Latin expression for a body of trading principles used by merchants throughout Europe in the medieval period.
[4] Means usury and is forbidden in Islamic economic jurisprudence fiqh.
[5] Upendra Baxi (2006) The Future of Human Rights (2nd. edn., New Delhi: Oxford University Press)
Preface at xxii.
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