LOTF2011 | H. Patrick Glenn & Ewoud Hondius

23 – 24 June 2011 / Peace Palace / The Hague

Law of the Future Conference 2011

H. Patrick Glenn, Peter M. Laing Professor of Law,

McGill University and Ewoud Hondius,

Professor of Private Law; HiiL Programmatic Steering Board

Globalisation and Law: Ten Theses Globalisation and Law: Ten Theses

by William Twiningby William Twining


1. Global generalisations about law

o Thinking about “Globalisation” encourages us to adopt a broad global perspective - to think in terms of broad overviews and total pictures - but it also tempts us to generalise about law beyond our capacity.

o On the whole we lack concepts, hypotheses and data to make confident evidence-based generalisations about legal phenomena in the world.

o In adopting a global perspective, beware of false, misleading, exaggerated, superficial, illusory, meaningless, reductionist, biased, or ethnocentric generalisations and comparisons about legal phenomena.


2. Non-state law

o From a global perspective, a conception of law confined to state (municipal) law and classical public international law leaves out too much.

o For example, it leaves out religious, customary, “soft”, and “unofficial” forms of law.

o We need usable conceptions of non-state law that enable us to make some differentiations, appropriate to context, between the legal and the non-legal. And we should not expect such concepts to carry much weight.


3. Sub-global patterns of law

o Some of the most significant patterns relating to law are sub-global: the legacies of empires, diasporas, alliances, trading blocs, language spread, legal traditions etc.

o These do not fit neat geometrical metaphors: concentric circles, vertical hierarchies, horizontals or diagonals. Our heritage of law is much messier than that.


4. Legal pluralism

o Accepting a conception of non-state law leads to accepting legal pluralism as a social fact. Legal pluralism occurs in all countries and at all levels of ordering not just within particular countries - transnational, supranational, regional, networked, diasporic etc.


5. Legal pluralism and the Rule of Law

o Socio-legal writers on legal pluralism launched a powerful attack on “state centralism” - the tendency to assume that the sovereign state is the only legitimate source of legal authority and the most powerful, most efficient, technically superior, and just form of ordering.

o There is, however, a danger in romanticising legal pluralism: many non-state orders are oppressive, unjust, inefficient, corrupt etc. Some believe that the best hope for achieving and preserving democratic values, the Rule of Law, good governance, human rights, distributive justice rests with strong liberal democratic states.

o What are the prospects for the Rule of Law in situations where the state is no longer the only or even the main form of governance?


6. Diffusion of law

o Adopting a global perspective also points to the importance of the interaction between legal orders: the phenomena variously know as reception, transplantation, diffusion of law.

o It is important to realise the complexity and diversity of these processes: they are by no means only horizontal (government to government, country to country); one-way (e.g. by colonial imposition); or brought about by official actors (migrants, colonists, missionaries, merchants, jurists, educators, the media are also change agents).


7. Surface law

o Diffusion is closely related to talk of convergence, harmonisation, or unification of laws. Western traditions of legal scholarship have been largely text-and-doctrine focused, and unempirical.

o Insofar as talk and claims about diffusion, harmonisation, and convergence tend to be text-oriented, they only tell us about surface phenomena. They tell us little about how imported legal ideas are interpreted, applied, used, manipulated, enforced, avoided, or changed.

o “Surface law” is not necessarily law that is only on the surface; rather it is law about which we have little information about how it operates in practice.


8. Belief pluralism

o There are strong strains of universalism in the Western traditions of ethics—as exemplified by natural law, Kantianism, utilitarianism, and some versions of human rights theory—which have to confront the social facts of differing belief systems, cosmologies, cultural values, ideologies etc. (Belief pluralism).

o 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.


9. A secular age?

o Modern Western state law, public international law, and human rights law are often said to be “secular”. This is ambiguous. It may mean unreligious (agnostic, atheist, antireligious) or it may mean that it is based on ideas of religious toleration and an impartial secular state.

o Human rights are sometimes presented as an ideology for “a secular age”. From a global perspective demographers of religion tell us that we live in an age of religious revival rather than decline.

o Documents such as the Universal Declaration of Human Rights are only likely to be stable if the adherents of different religions and belief systems are persuaded that they are supported by their own religious or other premises.

o This makes internal dialogue and the doctrines on how non-believers should be treated as significant as universalist justifications.


10. Ethnocentrism

o Our Western traditions of academic law and legal practice, parochially focused on the municipal laws of our own societies, have exhibited very little interest in non-Western legal traditions and cultures.

o Collectively we have been largely indifferent to, unaware of and fundamentally ignorant about non-Western legal ideas and practices and the concerns and interests underlying them or the languages in which they are expressed.

o So are we qualified to prescribe global solutions?


Conclusion: what we can and cannot do

o Adopting a global perspective highlights a number of challenges to some widespread assumptions in our Western traditions of legal scholarship and legal practice.

o A global perspective can help us to recognise the diversity and complexity of systems of ordering human relations in the world and to accept that we are not uniquely at its centre.

o Den Haag is not the centre of the world and “we”—mainly a bunch of Western jurists—cannot on our own prescribe solutions for the world’s problems. But we can and should think about how the complex processes of globalisation bear upon our own situations and ideas and what we can bring to the table to negotiate stable and acceptable responses to transnational, supranational and genuinely global issues.