SYMPOSIUM ON THE FUTURE OF GLOBAL LAW
- Έκδοση: 2021
- Σχήμα: 17x24
- Βιβλιοδεσία: Εύκαμπτη
- Σελίδες: 136
- ISBN: 978-960-654-440-8
- Black friday εκδόσεις: 10%
"Athens Contemporary Law Lectures" is a publication aimed to be devoted to contemporary topics and particular issues of international law, mainly private international law, international transactions and international arbitration law as well as public international law. The present fi rst issue was inspired by the International "Symposium on the Future of Global Law", organized by the Department of International Studies of the Faculty of Law of the National and Kapodistrian University of Athens, which took place on May 24, 2019 and brought together renowned international experts, professors from prestigious universities from all over the world. It, thus, contains some of the papers - articles presented during the Symposium, pointing out diverse approaches to its under-explored main theme.
Περιεχόμενα | |
1. Introduction | Σελ. 1 |
2. Fragments of Legal discourse on the Future of Global Law | Σελ. 7 |
Charalambos Pamboukis | |
Professor, Faculty of Law, National & Kapodistrian University of Athens | |
3. Towards a Genealogy of Global Law | Σελ. 19 |
Nikitas E. Hatzimihail | |
Associate Professor of Private Law, Comparative Law and Legal History, University of Cyprus | |
4. The Diminishing State in Global Law | Σελ. 35 |
Alex Mills | |
Professor of Public and Private International Law, Faculty of Laws, UCL | |
5. A New Paradigm for International Substantive Law Conventions | Σελ. 43 |
Franco Ferrari | |
Professor, School of Law, New York University | |
6. Exequatur Going Global: The doctrine of exhaustion of remedies in the Member State of origin of the judgment | Σελ. 61 |
Arnaud Nuyts | |
Professor at the University of Brussels (ULB), Member of the Bar of Brussels | |
7. Transnational Economic Constitutionalism in the Varieties of Capitalism | Σελ. 95 |
Gunther Teubner | |
Professor emeritus, Law Faculty, Goethe-Universitât Frankfurt am Main | |
8. Concluding Remarks: A future for Global Law? | Σελ. 119 |
Nikitas E. Hatzimihail | |
Associate Professor of Private Law, Comparative Law and Legal History, University of Cyprus |
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1
Introduction
“Global Law” is an increasingly popular term, which appears in the names of research institutions and programs of study, but is also used in order to define an emerging field of law, to reconceptualize existing legal doctrines, or to outline the agenda of interdisciplinary engagement. It may be impossible, today, to agree upon a single definition of Global Law. In fact, the very existence of this new legal field is contested and its essence is viewed with suspicion. In this context, trying to envision the Future of Global Law appears at least audacious. However, it is also a worthy exercise: it could be said that thinking about the future of Global Law is thinking about the future of Law itself.
The subject was chosen as the inaugural theme of the “Athens Contemporary Law Lectures” series, which aims at nourishing the reflection on issues transcending the national or regional frontiers. Reflecting on the topic chosen, namely the “Future of Global Law”, taking also into consideration many important contributions, is never a vain exercise despite its fugitive definition and character. It cultivates at least the need for global regulation important to face problems arising at the global sphere and constituting major, even existential, threats for humanity, such as environment damage and climate change, challenges to peace or health crises (as we are reminded presently by the COVID 19 pandemic). Rethinking Global Law, despite its multilevel functions as a constitutional and international private governance, regulation and adjudication, tool, allows free
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dom in approaching it, as a spacious subject, indeed a broader theme. It navigates also in time, in the past, in the present and much more in the future (as an important part of the Legal Futurology). And even if its internal consistency is questioned, even if it lacks a precise content or specific rules, it cannot be contested that Global Law is an ideal following the Kantian idealistic thought and reflects an evolving process, an idea en voie de devenir.
This book is a collection of essays on Global Law, written by a select group of distinguished international scholars. The diversity of subjects represented in the present edition is matched with the diversity of perspectives provided by the authors. From constitutional theory to international governance, from private and public international law to legal history and comparative law. From viewing Law as an autonomous field of study to insisting on the interconnections with other disciplines and the unity of human knowledge. From tours d’horizon to concrete explorations or even “fragments” of legal discourse. Regardless of how one instinctively views the concept of Global Law, there is a lot to be gained by setting the basis for this reflection.
This collection of essays is the result of an International Symposium on “The Future of Global Law”, organized by the Department of International Studies of the Faculty of Law of the National and Kapodistrian University of Athens and held in the historic Central Building of the University. The Symposium was a unique opportunity to bring together renowned international experts, professors from prestigious universities from all over the world, in order to discuss on this under-explored contemporary topic. The diverse approaches to the Symposium’s main theme were illustrated through the presentation of a series of thoughtful papers.
The Symposium begun with an opening speech by Charalampos (Haris) Pampoukis under the title “The Future of Global Law: Some Introductory Reflections”, included in this volume, in an attempt to set the tone for the discussions that are about to follow.
The first panel, under the title “Global Law and Global Governance”, aimed to encourage broader reflections. With his paper on “History and Genealogies in Global law” Nikitas Hatzimihail invited the audience to take a historical perspective in defining Global Law but also to be mindful of the “genealogical” uses of history.
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With his own paper on “The Diminishing State in Global Law”, Alex Mills provided a pragmatic tour d’horizon of the fields in which the traditional divisions between private and public, domestic and international law have been overcome by developments. The next two papers, having as point of departure the public international law, demonstrated the benefits of reconceptualization in two critical subjects: international adjudication and environmental protection. Photini Pazartzis explored the idea – and doctrines – of “A Global Law of Adjudication”, while Maria Gavouneli presented her paper on “Codifying international environmental law? - The Global Pact for the Environment”.
The second panel was devoted to “Global Law and Dispute Resolution”. It begun with a paper with strong theoretical implications by Franco Ferrari, raising the issue “Is Arbitration a Global Dispute Resolution Mechanism?”. He was followed by two presentations on civil litigation and international arbitration. Showcasing the developments of civil procedure scholarship and transnational legal practice towards a global approach, Arnaud Nuyts presented a paper on “Exequatur Going Global: the Emergence of the Doctrine of Exhaustion of Remedies in the State of Origin of the Judgment”. Anastasios Gourgourinis returned to the field of international arbitration, but this time on investor-state disputes, with his paper on “Global Law and Investment Arbitration”.
The third and final panel, on “Rethinking Global Law”, attempted to go further into theoretical explorations of Global Law and global governance. It begun with a paper by Gunther Teubner bearing the title “Transnational Economic Constitutionalism in the Varieties of Capitalism”. Then, Horatia Muir Watt returned back
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to private international law, with her paper on “Private International Law under globalisation. Rethinking law’s spatialities”. Finally, Jacco Bomhoff presented a paper on “Global Law and Mobility”.
The Symposium concluded with a keynote speech, delivered in the Hall of Ceremonies of the University of Athens, by H.E. The President of the Hellenic Republic, Professor Prokopios Pavlopoulos, under whose auspices the Symposium was graciously placed. The speech had the title “The predominence of ‘financial’ over ‘institutional’. From the democratically ‘institutional’ to the financially ‘structured’ regulatory power of the rule of law”. President Pavlopoulos’s speech fittingly signaled the end of this very interesting gathering of minds and exchange of ideas. But that end was only the beginning of an ongoing discussion. Professor Hatzimihail has undertaken the interesting burden of providing us with brief concluding remarks on the book’s contributions.
In concluding this introduction, I wish to acknowledge in particular the valuable contribution of Miss Aliki Gkana both in the organization of the event and in liaising with authors and publisher. The publishing house, Nomiki Vivliothiki, has supported us regarding the Symposium materials and undertook the publication of this edition.
Finally, we are sure that it would have been impossible to carry out such an ambitious organization without the valuable support of our generous sponsors:
- Ilios Shipping Co. S.A and in particular Mr. Panos Iliopoulos
-Athens International Airport
- Hellenic Petroleum S.A.,
as well as without the aid of our supporters:
-John S. Latsis Public Benefit Foundation and
-Athens Mediation and Arbitration Organization (EODID).
The Symposium was not structured as a typical international conference. Beyond the interesting aforementioned lectures and following discussions in public, this gathering offered a two-day occasion to be together with distinguished colleagues and friends visiting and meditating in Delphi, the eternal landmark of religion, culture, concordance and civilization, and, as epitomised by the Delphic oracular divination, oriented towards the future, as actually our new series aspires to do. One
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of the two leading ideas of bringing together these lectures was indeed to be part of a real συμπόσιον, a kind of a banquet which was accompanied by lasting conversations and exchanges. The other was to inaugurate, as said, the “Athens Contemporary Law Lectures” series. The first gathering, which led to this present publication, took place in 2019, while unfortunately the current circumstances, in 2020 and in early 2021 prevent us from organizing the next one.
I am personally grateful to all participants and to our generous sponsors and I apologize for the delay of publication due to the extraordinary global circumstances that took place after our Symposium.
Charalampos (Haris) Pampoukis
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2
Fragments of Legal discourse on the Future of Global Law
Charalambos Pamboukis
Professor, Faculty of Law, National & Kapodistrian University of Athens
Introduction
1. Our Athens Symposium today aims at jointly reflecting on the Future of Global Law. The subject is elusive for more than one reasons. The very essence of Global Law as a new field of law is contested or is, at least, seen with great deal of suspicion. Now, trying to envision its Future is even more audacious.
Fortunately, our reflection does not start ex nihilo. There is already important literature on Global Law with contributions of a very high intellectual caliber; among them indicatively: the work of Giddens, Twinning, G. Teubner, Neil Walker. One should not, of course, omit the important contributions of H. Muir Watt in association with D. Fernandez Arroyo, particularly in the field of Private International Law, having direct a collective theoretical approach in the field with distinguished international globalist scholars. Most recently, a vol-
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ume on Global Private International Law showcases the practical implications of this brunch of law.
The ‘Global Law’ component of our topic allows to dream but it also provides a way of expressing realities of our era. It is, therefore, not a surprise to see emerging important centers of legal research especially dedicated to the study of Global Law. There are, indeed, many, but I can quote—among others—the Institute of Global Law and Policy (IGLP Harvard University) under the direction of David Kennedy who also has offered refined contributions on Global Law and who wanted to be among us. Unfortunately he was not able to make such a long trip for two days despite his desire. Global Law is not an extraterrestrial subject, but a reality which invites constantly to a rethinking of the Law.
The other component of our subject, the Future of Law, has also benefited from remarkable and pioneer works. In particular, I have to refer to the two volumes under the direction of Muller, Zouridis, Frishman and Kistemaker on The Law of the Future and The Future of Law of Hague Institute for the Internationalization of Law (HiiL). The future of International Law is also closely related. One could say that Global Law is the meta international law and Trachtman sees the future of international law in a renewed functional approach.
The aim of the Athens Symposium on Global Law is to further contribute to the reflection on Global Law and its Future giving to distinguished constitutional and international lawyers the opportunity to think and discuss on various topics. Without thinking, the future cannot be shaped, and Man cannot control his own destiny. The banal, mysterious, and probably indomitable question is how would Global Law look like in the Future? This question hides the fundamental dilemma: the fight between Taxis (Order) and Chaos; between Unity and Diversity; between Integration and Fragmentation. We cannot predict the future. But we can envision the future. And vision—visionary approaches in any form—is missing nowadays, leaving the world without a compass.
Thank you all for having accepted that modest invitation. In particular, our foreign Colleagues and friends. We are critical, analytical and globalist in the sense that we aim to shape law in a holistic and forward looking way based on a deep understanding of the present and on a vision for the future.
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I believe our proceedings and works in this Symposium might be more precisely described as fragments of legal discourses—to paraphrase Roland Barthes famous book—on the Future of Global Law but I believe that it cannot be done differently. It is a puzzle, which needs to be construed gradually with a multiplicity of pieces corresponding to more than one theme.
Athena—Goddess of wisdom and symbol of the University of Athens which hosts us—might inspire our Symposium which has been honored to be under the auspices of the President of the Hellenic Republic, Professor Prokopios Pavlopoulos who wishes to contribute with a speech to be given at the end of today’s sessions.
I. The environment of the contemporary era: Globalization in a nutshell
2. There are two axiomatic initial considerations: the first is that the law is a societal phenomenon in the sense that it accomplishes several societal functions.
Law is multifunctional. The function of regulation, adjudication, and enforcement are the constituents of regulation stricto sensu. Therefore, the implications of Global law should be primarily analyzed through the prism of these functions.
But in excess of the regulatory lato sensu function, law has an important unrevealed pedagogical implication. It educates—or it should educate—citizens’ behavior. Therefore, the cultural soft function of law is important even if that aspect has not been consistently revealed and emphasized. Law expresses, but it also creates culture.
That is particularly important in the fundamental struggle between integration and fragmentation. Law covers potentially everything and, therefore, a system, a synthesis in our era of “complexification” is very difficult, seemingly impossible at the level of global law.
The second axiom is that we cannot think (ως ον) outside our own era, our environment. The first step, therefore, in the discourse is to understand and describe the characteristics of our era while also projecting its fundamentals to the future.
3. The contemporary era is dominated by the mysterious yet eloquent notion of globalization including both the communications and global web revolution and the
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exponential technological advances. Often described as post-modern—by opposition to modern—our era is characterized primarily by the revolution of communications (and, therefore, the expansion and interconnection of societies around the globe).
Important consequences derive from this: change of the perception of time and location, amalgamation of societies, globalization of knowledge, relativity of borders, formation of new multiple societies transcending if not exceeding people limited in a Nation-State, internationalization of financial and economical activities and markets, important changes in societal organization (web organizations and civil societies unions) and family (no sexes unions). Importantly, we note the fall (at least partially) of the Westphalian model and the associated notion of state sovereignty. A non-exclusive State regulatory future designs the present and the future.
It is important to emphasize the growing speed of technological advances. The changes, concerning especially time, by globalization are qualitative and create more rapidly the necessity of regulation. The world is in dire need of faster and globalized regulation. The incapacity to respond to that need creates a vacuum, which moves the line between law-regulation and no law-regulation in favor of the second.
4. The rise of the individual as international actor allows the affirmation that, even with a degree of exaggeration, every human is potentially a legal order in the sense that (he or she) could be a source of regulation. It is, thus, no surprise that in the field of Private International Law we observe the dominion of the principle of autonomy of will in international regulation. As a consequence, we observe the rise of private legal regimes. The individualism has, if not defeated, importantly limited the force of State sovereignty. States are not the exclusive protagonist in regulation and their sovereignty is limited by other non-State actors. We do have legal orders beyond the State. And, as a matter of fact, we do experience non-State
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organizations more powerful than many States from a capacity perspective. That evolution is notable in particular in the domain of private legal relations.
This is not to suggest, however, that public law is exempted from Global law. It should embrace pluralism; in that sense, Global constitutionalism is conceived as plurality. Global Administrative Law focuses on the proliferation of certain sites of transnational regulation and decision-making.
5. Many distinguished intellectuals have tried to foresee the Future from different angles. The list is long and so are the proposals. I am referring indicatively to George Friedman, to Jacques Attali, and to Yuval Noah Harari as notable and varied examples.
Trying to master the future is a great intellectual ambition, if not vanity. This is because essentially in our sub-conscience it is a way to defeat death and to see beyond the end of our existence. It is humanly legitimate but probably, as for on effective futuristic exercise in vain. It is not useless though. Only through visionary thinking there is a hope that humans will continue somehow to master their future and destiny.
Notably, Harari in Homo Deus suggests that, what he calls the New Human Agenda, describes the ultimate ambition of humanity: Deification by immortality and life creation. Immortality (and anti-ageing) is a project launched by Google and life creation is closely associated to robots and third generation artificial intelligence. The demystification and possible use of DNA will also play a key role to the deification project and, in any event, in combating illnesses and extending the quantity and quality of human life. But it also creates new problems: to whom the DNA belong, what uses will be allowed etc.
It is a fact that the progress in medicine, in biology, in quantum physics, and in every sector of science is tremendous and exponential. Artificial Intelligence and robots will intervene horizontally in all sectors of human activity and will improve and change several aspects.
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6. Due to the disparity of time (the progress is much quicker than the ability to regulate, especially via State Regulation which is long and complex), and because of the complexity of the contemporary problems, law cannot follow the exponential progress and regulate global new issues in a uniform way.
7. Many of these advances pose new ethical dilemmas beyond law, such as to what, by whom and how the consequences of that progress should—if ever—be regulated. Globalization needs its ethical philosophers as guides towards the future.
8. The technological exponential revolution, knowledge, is the dominant characteristic of our contemporary era but it will also certainly mark the future. If that assumption is correct, it also creates important threats for the human race as a whole. I am referring in particular to Artificial Intelligence (AI) and the globalization of data and algorithms. The future will be mastered by algorithms (the globalization of algorithms will be a fact thanks to communication revolution and the interconnection created therefrom) having tremendous intellectual capacity in comparison to human capacity but having not (for the time being) conscience and own will. We are directed to a meta-human society creating opportunities but also containing potential threats.
9. A non-law regulatory area is under creation and normativity is no longer expressed only as law, but it will go beyond law.
10. The Globe is, of course along with Humans, the second essential component of being inherently global. Humans are explorers. The Law of the Outer Space—already a distinct field of law with the McGill University of Air and Space Law being well known in that respect—will also play an important role in the Future. Many regulatory problems arise, and will continue to arise, in a variety of issues concerning Outer Space Law taking accepting also the desire of human nomads for planetary relocation.
11. Of course global governance and democracy are also closely connected to the evolution. The question of legitimacy of private normative regimes is at the heart of any debate. The quest for global democratic governance is a complicated issue and the “constitutionalization” or the “constitutional web coordination” are models expressing integration or fragmentation.
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In this course, we should change the direction in which we are actually trapped correcting the crypto oligarchical global society. Allow me simply to say that Rodrick’s dilemma is neither a necessity nor is it inevitable but it has the tremendous benefit to awaken, as intellectuals ought to do. The way to move forward is a synthesis.
Let me also conclude these, unavoidably introductory, banalités by noting a paradox: although we are experiencing the revolution of the knowledge—thanks also to the mediums fabricated having immensely more intellectual powers than humans—we are experiencing uncertainty; and, certainly we are experiencing complexity. The paradox is that the more knowledge we achieve, the less certain the Future becomes.
II. What is Global law?
12. It is not surprising to state that there is no single definition of Global Law. There are different approaches, often concurrently valid.
We do not need to analyze the issue of foundation of Global Law in depth: its existence and the multiplicity of its functions are at that stage enough to try to systematize the phenomenon. In that respect one should not confuse the existence as foundation of Global Law with its legitimacy.
13. Firstly, global might be seen as a new field of law covering regulation and adjudication of global issues focused at law making beyond and outside the realm of States. Global law is the law of regulation and adjudication of materially global issues. A variety of examples exist, which often constitute the special part of Global Law as Global Financial Markets, Human Rights, Poverty and Food/Water, Global Environmental Law, the law of Outer Space, Global Cyber Law, Robot law, and
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Global Economical Law (comprising Financial Markets, Banking Regulation, Competition etc.). In that geometry, one can find Global Law complementing merely non-State law.
We can also observe that the delineating line between law and non-law (in professional normativity for instance) has moved in favor of the second. There are increasingly more issues not regulated by law.
In my opinion, a new field of law having as object the study of regulation and adjudication of global law is required to analyze new problems of communication (web law) technology (technolaw), knowledge (gnosiolaw) and, in more general terms, the Law of Innovation from a holistic perspective comprising ethics and all forms of regulation (soft regulation; hard regulation; state regulation; and non-state regulation).
14. Global law is certainly also a process for achieving regulation. It is defined by its destination rather than its source. It is the process of moving from the Westphalian paradigm to the new integration meta-postmodern paradigm. In this conception, Global law transcends every area of law; it is a modifying, adjusting, and correcting mechanism; a transitional enriching and integration process. It is in that sense that Walker speaks about double normativity.
Internationalization is an unstoppable integration process. Trying to reverse it is not the solution. Trying to make a synthesis of an ordered multiplicity is probably the phase and the. And this is, of course, not only above formalistic normative coordination in regulation or criteria in international adjudication but also it is above global values and principles transported by norms. Finally, Global law has also a
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telos, an aim, in dealing with fundamental values: Peace, Poverty, Human Rights, Democracy, and International Resources.
15. Both approaches are compatible and have a common ground: non-State law without territorial limitations. It expresses in a way a non-local, non-territorial, universal law in comparison to territorial State law.
The Westphalian model has been, if not totally eroded, certainly surpassed. State law (and International State Law) is not any more the exclusive form of regulation. Other forms of regulation have been developed in a variety of domains. Regulation has become fragmented and multifaceted. But also, the postmodern pluralistic model is dominated of a transnational polyarchy. In Private International Law, the field of law aiming at ordering (rationalize) diversity, that discussion has been commenced long ago with the most notable form of the lex mercatoria.
The explanation is rather simple: due to the crisis of the Westphalian model the State has lost the regulation monopoly. Other sets of rules have been developed, acting in parallel or at the sidelines of State law.
16. Global law is, thus, pluralistic, complex, open, non-state centered and has a subsidiary role. In addition, and further to this role, enriching law with new solutions, it constitutes a process of change.
17. Last but not least, global law has an important cultural effect and a paramount pedagogical function. It is, to put it simply, another way of perceiving the complexity and plurality. It creates, gradually, a complex global polity. It is important, even if it is not a legal effect but refers to cultural aspect of the rule of law. It assists in developing common sense and practice of recognition and development of jurisdictionally unrestricted common ground on particular rules, cases precedents, and very important principles. It is a legal and cultural integrating force; global law is not neutral in the clash between integration and fragmentation. It defends and promotes an integrationist approach.
18. Global law will inevitably also lead to a new cultural societal division between “globalists” and “localists” depending on their potential capacity to participate in world structures and webs. Both categories will have distinct activities and different
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cultural approaches. That might be a new important social division. In brief, these two categories participate in different agoras (in every sense that wold many have).
19. It is not surprising that the subject is attractive especially to constitutional, international and conflict lawyer. Constitutional and International Lawyers deal with the “constitutionalization” of Global Law, its form and future law in general. Conflict lawyers deal with normative diversity, pluralism trying to coordinate diversity in quest of uniform private relations which are not internationally fragmented.
But the new post-modern hypothesis in Private International Law is the transition from regulation to coordination of the diversity, especially during the present era of legal fragmentation. Moreover, Private International Law faces the globalization at the front lines of the battle. The recent volume on Global Private International Law dealing especially with international adjudication through cases—which have in common that they transcend state law and requires a new way of legal reasoning—is a quite topical and accurate example of the treatment in Private International Law.
20. Allow me, in that respect, to remind the tendency tomard enlarged of syncretism between International Law and Private International Law which is also explained by the rise of the individual as a subject of international law. International Law and Private International Law will take part in a fusion through an integration process. It is my thesis that Global Law, International Law and Private International Law will progressively merge in an amalgamated field of law.
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III. What is its Future?
21. How Global law will look like in the forthcoming years? The question might appear as epistemologically questionable. Is it possible to predict the future of regulation?
One can point out in that respect that Futurology—Legal Futurology—is not about guessing but about forecasting, predicting via projections based on a certain process and data.
Obviously, such forecasting can only be general, and the starting point should always be the available data. In that respect, it has been already emphasized that we are facing a complex, fragmented, and multi centered (πολυαρχία) regulation environment.
22. Trachtman’s analysis about Futurology of International Law is helpful. He correctly points out that changes in the fields of globalization cause shocks to the existing equilibrium and that it is unlikely that the overall level of law in the world will decline whereas the ratio between international law and domestic law is likely to swift toward international law. The tendency, validated by various examples in European law, is that internationalization of law will continue and that it will probably be more important in quality and quantity in comparison to local law.
23. Partially having to deal with global problems the holistic approach will gradually prevail as a necessity. Old categories of relations will perish or will lose their importance and new categories will rise. Despite the holistic approach and the reclassification of categories of relations, however, regulation will continue to be fragmented, complex, and asymmetric. The frontiers between law and non-law will also move and a normativity beyond coercion will emerge, especially in dealing in inter relations of non-state actors (for example internal relations of multinationals companies).
24. The shape of global law will probably be a web rather than a pyramid of the vertical Kelsenian model. The important rules will be rules of recognition (connectivity rules)—with Santi Romano’s approach still being valuable—and enforcement will decline.
25. The process will be a dialectic one between global and local with a new synthesis not being foreseeable. The coexistence of laws (state laws) will progress and transform into a cooperation of laws.
The legal world can turn into an order out of chaos but it can also simply turn into a chaotic condition (a short of Regulatory Babel). Both are possible and the second one will definitely signify the decline of law. But the chances are that we will be directed to a complex legal world of both.
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In sum, and as Walker rightly notes, there are two conceptions of global law futures: “one encourages a general dynamic of convergence while the other reflects a focal concern to accommodate a general dynamic of legal divergence”. The future of Global law is ultimately associated with these visions which have in common “...that both acknowledge and seek to address the increasing complexity of the post-national landscape- its diversity and fluidity of form, its multiplication of new forms of legally coded identity and difference, its congestion, its cross-systemic overlapping claims and focal concerns, its mechanisms of mutual recognition and interlock;...”.
Epilogue - The fundamental Crossroads and Vision
26. In the end we reach crossroads dominating the discussion. A vision dilemma too. What is at stake is the battle between order and chaos.
Legal world is neither naturally structured nor does it tend naturally toward order. Order is not, thus, in the ‘nature’ of law (στη φύση του πράγματος). There is, therefore, an aim, a telos, concerning the future of Global law: to contribute to creating order out of the chaos.
27. The first consideration is that in trying to understand, and following Heraclits’ deep thinking, one would believe that the approach concerning evolution is based on a dialectic process. One might also look to the systems theories for the same purpose—although these are not directly transposable to human relations which are fundamentally different.
The second concluding consideration is that the world of humans is characterized by the struggle between order and chaos; Integration and Fragmentation; Global and Local. Struggle between dividing and integrationist factors.
The battle against chaos is the telos of human science as Claude Levi-Strauss affirmed: “The essential task of the person who devotes his life to human sciences is to tackle that which seems the most arbitrary, the most anarchic, the most incoherent, and to attempt to discover an underlying order or at least to try to see whether such an order exists”
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3
Towards a Genealogy of Global Law
Nikitas E. Hatzimihail
Associate Professor of Private Law, Comparative Law and Legal History, University of Cyprus
1. Introduction
I will start this journey in medias res: a mid-eighteenth century maritime case before the Court of King’s Bench, in London, which involved a freight claim to a cargo in a British ship captured by the French and then recaptured, and sold, by a British privateer. The case, originally tried in Devonshire, was reserved for the Court by Lord Mansfield, one of the founding fathers of English commercial law who played a pivotal part in the role asserted by the common law courts in these matters. I read from the Reports:
Lord Mansfield said that though he was of the same opinion at the assizes as he was now; yet he was desirous to have a case made of it, in order to settle the point more deliberately, solemnly, and notoriously; as it was of so extensive a nature; and especially, as the maritime law is not the law of a particular country, but the general law of nations “non erit alia lex Romae, alia Athenis; alia nunc, alia posthac; sed et apud omnes gentes et omni tempore, una eademque lex obtinebit”.
In the two and a half centuries since Lord Mansfield, this passage has been often quoted by writers have sought validation for their own normative visions, political agendas and doctrinal aspirations. The Latin quotation comes from Cicero’s On the Republic, a relatively early philosophical work, which at the time was surviving only frag-
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mentary. There is very little law in Cicero’s actual passage, as we shall see below. But Roman law is not the question here. What is more interesting is how this text, and passages like this, have been cited, quoted, misquoted, re-interpreted in discussions about natural law, obviously, but also lex mercatoria, transnational law and, now, also global law.
It is not the ambition of this essay to propose a genealogy, in the strict sense of the word, for global law. In fact, I do not even have to attempt to define global law. Nor am I concerned with pointing to the anachronisms and historical inaccuracies in such genealogies. What I am interested in concerns the stories being told — what narratives are being projected, and what the use of such narratives tells us about their authors, as well as about more general aspirations, challenges and recurring patterns in doctrine and theory. Admittedly, however, such an endeavour has a genealogical function.
The essay constitutes a preliminary exploration of some ideas, building on my ongoing work on the history of, and historical perceptions about, “transnational” commercial governance. It is structured along two axes. On the one hand, the story — rather stories — about the fundamental concepts cutting across the history of legal ideas, which have been employed, or could be employed, in genealogies of global law. On the other hand, a very broad, rough typology of different potential meanings that “global law” could take.
There are two themes running through these axes — and my essay. First, the same term – or even concept – has meant different things to different people and/or in different eras. Second, different terms, and concepts, may be used, across time and space, to express the same thing — the same notion or aspiration, the same need or function.
2. Concepts in search of a story
Those looking for a story of legal evolution towards a global law, are well served by Rafael Domingo’s stimulating book on the New Global Law. The title is telling. Indeed, in his conclusion (“The Third Time is the Charm”) Domingo puts forward a narrative of three ages:
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If the ancient ius gentium served the hegemonic interests of Rome, and international law those of a state-based Europe, the new global law, based on the person, must contribute to the common good of humanity and to the development of world peace. The third time is the charm!
The structure of the book reflects this idea. In the first, historical part, Domingo traces the evolution “From the Ius Gentium to International Law”, in which there are three stages: “The Ius Gentium, A Roman Concept”; “The Ius Commune, a Medieval Concept”; “International Law, A Modern Concept”. This could suggest that global law is the fourth stage, the move towards which is analyzed in the book’s second part.
My own approach is markedly different. In my research project, I am examining all three of these concepts, alongside with natural law and the lex mercatoria. Three of these five have had a long history: natural law, ius gentium and the ius commune. Something similar could be argued about lex mercatoria, even though I would suggest that it has acquired its historical pedigree ex post. International law is a relatively recent term, which at the dusk of the Early Modern era replaces the latest incarnation of the ius gentium.
What all five of these concepts seem to have in common is that they have stood, across time, for an approach to law broader than a very strict, parochial positivism. But even this argument is tenuous, once subjected to historical scrutiny. Moreover, each of these concepts took different meanings across time; sometimes, these different meanings of the same concept even coexisted in the same context. And the concepts thm - selves often coexisted – there were subtle shifts, with one concept often picking up territory that the other had abandoned, but there has been no clear conceptual succession.
2.1 Natural law
Natural law offers the best example. The term itself has been in use for over two millennia – going back to Classical Antiquity, in the very least. It could even be suggested that it has been used continuously since then. But it has meant different things to different eras. At this point, I would happily draw on the Italian jurist Alexander Passerin d’Entreves, who distinguished three past eras (I would say three lives) of natural law.