The Sociological Origins of Global Law
The Sociological Origins of Global Law
Chris Thornhill
What is global law?
There is currently much debate about global law, and in particular about global constitutional law.[1]In very general terms, the defining outlooks in this debate can be aligned to two distinct camps. Observers in one category define global constitutional law as an intensification of classical international law. From this perspective, global constitutionalforms an overarching hierarchy of norms, which has its origins in principles of international law seen as havingerga omnes standing, and it determines basic rules for the different actors or subjects, be these states, persons, international organisations, or even corporations, that populate the international arena.[2]On the other hand, a rival set of observers now conceive of global constitutional law as a legal order emanating mainly from private law, or at least from a confluence between private and public international law. These observers argue that this law is formed through relatively spontaneous engagement between different norm providers and the specific exigencies of different transnational social exchanges. On this account, the various functional domains of world society engendertheir own particular regulatory structures, often combining elements of classical public law and elements of private law, which are reproduced across the boundaries between national jurisdictions, and which acquire quasi-constitutional character both for national states and for actors locating within different functional domains. Broadly speaking, observers in the first category still work within the monism/dualism paradigm of late positivism, and they perceive the rise of global constitutional law as the final triumph of classical monism. Interpreters in the second category accept a hybrid monism as a basic fact of global legal order. Both outlooks, however, argue that global society now possesses a distinct constitutionality.[3]
Whilst owing great appreciation to the above theoretical camps, this article offers an account of global constitutional law that differs in certain respects from both these constructions. On one hand, first, it opposes the international-law perspective in these debates, as it claims that we can identify a body of global constitutional law which, although doubtless in part attributable to norms assuming sanction as international law, is not reducible to international law, and it does not originate, or it only very obliquely originates, in inter-state acts. Global constitutional law is in fact engendered, in relatively fluid adaptivefashion, by actors moving quite freely between the national and the international domain. In this respect, my view of global constitutional law has a certain proximity both to Philip Jessup’s original idea of transnational law,[4] and to the theory of dédoublement functionnel proposed by Georges Scelle.[5]Then, second, in contrast to the alternativeor transnationalist view outlined above,this article differentiatesglobal constitutional law quite strictly from private law. Some emerging accounts of transnational constitutional law opt for radical fragmentation and deeply hybridized pluralism over hierarchy and normative structure as principles of legal form.[6]Although I agree with Gunther Teubner that we can observe autogenetic legal forms in different subsystems of transnational society ,my approach is underscored by the claim that we do not need to abandon the more conventional plane of public law to identify a corpus of transnational or global constitutional law. On my approach, we can observea number of processes in contemporary society which clearly produce law with de facto constitutional rank at a global or transnational level. This occurs in a fashion which clearly differentiates such law from international conventions or inter-state agreements, so that, to agree with theorists of transnational as a hybrid form, transnational law retains a distinct autonomy against international law. Yet,thisalso occurs in a fashion which means that the constituent subjects of transnational constitutional law are still identifiably and in fact categorically public.
To substantiate this, I wish to suggest that global constitutional law is generated through complex interactions between courts and other judicial bodies (i.e. between bodies with clear public standing), which are positioned at different points in the global political system, and which radiate norms of original international provenance through and across jurisdictional boundaries. As a result of these interactions,legal norms migrate quite spontaneously across boundaries between formally distinct jurisdictions,they are often proportioned to objectives far removed from the principles of international law that first shaped their formation, and they generate constitutional norms, in often unpredictable fashion, both within and for national states. To this degree, a network of transnational judicial interactions gives rise to a corpus of global constitutional law, but this legal corpus is marked by a distinct public character.
On my account, this judicial production of global constitutional law takes place, typically and primarily,through three distinct lines of interaction between international law and national law. Two of these are easily observable, but oneis somewhat less immediately evident.
Line of interaction1: Direct interaction between national constitutional courts and international courts.
This process will normally be visible in the acceptance of principles of deference, comity, margin of appreciation, use of local remedies by courts occupying distinct positions in world society.[7]By organizing their relations to each other through such principles, courts create a setting in which norms originally prescribed at an international levelenter, permeate and shape national jurisdictions, and the interaction between courts creates a constitutional form both for national states and global society as a whole. Constitutional law is formed through complex co-operation, often semi-conflictual, between different tiers of a transnational judicial order, and interaction and contest over jurisdiction between courts creates a half-pluralistic, but also half-unified legal system, reaching across national boundaries. In such cases, courts usually dispute and mark out their spheres of competence by adherence to overriding obligations defined by international human rights conventions. Rights form a grammar by which different spheres of judicial discretion define both their independence from, and their basic compatibility with, other components of the judicial system, and rights underpin a transnationally constructed judicial constitution. This can be seen in the way that the local remedies doctrine is practiced by the International Court of Justice (ICJ).[8]However, the controversies between the European Court of Justice(ECJ) and the German Bundesverfassungsgericht, expressed in the rulings Solange Iand Solange II, are the most illuminating example of how rights punctuate the grammar of inter-judicial relations.[9]
Line of interaction2: Judicial borrowing
This process will normally be visible in the citation of rulings of one national court in a different national court, or, more typically, through the application of the jurisprudence of international courts in domestic courts. This is now an almost global phenomenon, which, as one observer has declared, means that ‘the rampart of state sovereignty is breached’. It creates a situation in which, independently of international law strictu senso, normsand judicial decisionsare ablelaterally ‘to pass from the international legal order into the municipal legal order.’[10]This is usually characteristic either of cases relating to problems emanating from the international arena or, most notably,of cases with implications regarding human rights. In this respect, courts produce an informal, yet quasi-constitutional nexus by sharing norms, and they stabilize cross-boundary principles and expectations by so doing. However, this is some distance from the simple vertical imposition of a global constitutional structure. Through judicial borrowing, which is often implicit, international norms undergo context-dictated transformation, and they are often proportioned to nationally specific questions. Through this process a ‘transjudicial model’ of norm production is established, which blurs conventional boundaries between domestic comparative, and international law.[11]
Line of interaction 3: Constructive adaption of international norms to address problems embedded in structure of national societies
This process is rather more difficult to exemplify. To make it intelligible, we need to think of situations in which national states are afflicted by structural pressuresor endemic instability within their own national setting or institutional substance. In such contexts, international law is often assimilated, typically via actors in the high judiciary, to mollify the exposure of the national political system to deep-rooted conflicts and challenges. In particular, we can link this to the differentiation and functional abstraction of the political system. We can observe a number of cases, historical and contemporary, in which the legal interaction between national and international courts gains relevance for the position of the political system in a national society at large, especially in circumstances where the political system is marked only by precarious levels of differentiation and has only been able to abstract itself weakly and uncertainly against other organizations in society. In many such cases, the national political system utilizes international law to harden its stability in relation to actors, which are otherwise able to pull against its formal/differentiated abstraction or autonomy.
To illuminate this, we can think (1) of cases in which states have weak authority for legislation, perhaps operating in divided or factionalized societal landscapes, and they require additional legitimacy to gain compliance for law or even to legislate at all. In such instances, courts often stand alongside and provide backstopping for legislatures by using norms based in international lawto authorize legislation and to enforce laws against highly entrenched factions. An example of this could be Hungary or Poland in the democratic transitions after 1989. We can think (2) of cases in which a state is required to address a high volume of legislation surviving from previous regime, which obstruct its functions and perceived legitimacy. Courts are thus able to use norms based ininternational law to clear away legal debris. One example of this is Italy in the 1950s and beyond. We can think (3) of cases in which a state is beset by rival factions seeking to gain control of power and needs to stabilize its basic structure. In such circumstances, courtsmight use international law to solidify principles that are above challenge by rival parties. Post-apartheid South Africa provides an example of this. We can think (4) of cases in which state is affected by a lateral, divisive pull caused by residues of structural privatism, patron-client linkages, and/or patrimonialism. Under such circumstances, courtsmight use international law to stabilize an inclusionary structure against private actors, and to make visible the distinction between law of state and power of private persons. Post-1992Ghana would seem to furnish an example of this. We can think (5) of cases in which the state is marked by deep and debilitating intersection with trade unions,or rendered unstable by volatile patterns of corporatism, which impede the formation of the state as a relatively autonomous centre of policy making. As discussed below, Argentina after 198s is a key example of this. We can think (6) of cases where the state is marked by a high politicization of ethnicity. In settings of this kind, courts intervene to apply international norms to separate basic substance of statefrom ethnic monopoly. This is exemplified by Kenya. We can think (7) of cases in which the state has difficulty separating public power from private power, especially in geographically extensive national environments.Recent developments in China, Russia, and Argentina provide examples of this. In such cases, the absorption of international law in national contexts is often used to bring consistency to judicial rulings, and to detach legal offices from manifestly local/private authority. We can think (8) of cases where a state is only notionally centralized and in fact marked by high local power monopolies. Post-Franco Spain offers a complex illustration of this phenomenon. In such cases, international law is applied by courts, often in conjunction with processes of decentralization, to construct the legal system as a relatively uniform inclusionary order. We can think (9) of cases in which the state is incapable of producing law with any degree of public reliability. Russia under and after Yeltsin looks like the most obvious example of this. In such cases, the assimilation of international law acts as a source of constitutional law faute de mieux.
In each of these cases, we encounter situations in which political actors locatedwithin national states assimilate international law, and in which they actively and strategically impose international-legal norms onthe fabric of a national state and a national society. They do this, typically, in order to remedy, or at least to diminish the consequences of, phenomena that have historically brought acute crisis to domestic institutions and which countervail the abstraction of the political system as a reliable and moderately autonomous centre of inclusionary legislation. In such cases, normally, this process is promoted by, or at least channelled through, judicial bodies, whether acting autonomously or under immediate political pressure, and the articulation between superior domestic courts and courts with international jurisdiction becomes a vital source of law, legitimacy, and stabilityfor the national political system. In such cases, the norms borrowed from international law are usually norms referring to, or derived from, human rights conventions, and internationally defined rights norms are applied to authorize legislation or to stabilize the legitimacy of institutions in contexts where resources of legitimacy are otherwise lacking, volatile or unmanageably contested. In many instances, therefore, national courts construct transnational legitimacy through their engagement with international judicial organs – normally, regional human rights courts, but perhaps also the ICJ, or UN human rights treaty bodies. Through their filtration of international norms into national societies, courtscreate reserves of legitimacy which national states themselves struggle to generate, and they construct an internal foundation for the political system on which it can legislate in relatively insulated manner, even in the teeth of high levels of social polarization, political resistance, institutional fragmentation. In each case, international law is employed as a basis for, or at least as a dimension of, national constitutional law, and national constitutional law is rigidified through its assimilation of international law. In observing these processes, notably, it is difficult to argue that international law remains strictly international: that is,it does not assume constitutional standing because of the external limits that it places on state institutions. On the contrary, international law is modified and transformed by actors who utilize it in order to react to long-standing inner-societal problems, especially problems regarding the inclusionary capacities of the national political system. In such cases, the application of international law is usually highly selective, and certain specified norms of international law are proportioned to the need to resolvequite localized problems of systemic structure. In particular, in all these cases, international lawis used to harden the existing constitutional structure of the state, and to bring additional normative support to the national state and its inclusionary functional within its daily functional domains.
The point that I wish to make, therefore, is that in analyzing global constitutional law our horizon need not be constrained by an emphasis on relatively conventional models of international law. We can observe global constitutional law as distinctively global or transnational, as produced by multiple actors, and as evolving in a sphere of legal production that cannot be tied either to a hierarchy of national norms nor to simple interstate agreements. Despite this, however, we can still approach global constitutional law as constitutional in an eminent sense: that is, as applied by, and binding on, public actors, and as serving to consolidate distinctivelypublic functions and institutions. Global constitutional law typically arises from complex overlapping relations between domestic and extra-national pressures.This law in fact functions in direct analogy to classical constitutional law. Like classical constitutional law, it reacts to problems of systemic abstraction in national societies, and it distils original non-reducible normative residues which facilitate the construction of political legitimacy and the inclusionary transmission of law. In this light, transnational law stands in for or at least reinforces the classical functions of constituent power, and it generates default supplies of constituent power in national societies which have not been able to construct a sustainable national constitutional order.
The transformation of classical constitutionalism
In whatever way we wish to define the current post-national trends in constitutional law, it seems clear that, in recent decades, classical patterns of constitutionalfoundation and norm setting have undergone a substantial transformation. Most societies are marked – to different degrees – by a constitutional order which is connected immediately to the global legal system, and which imposes a transnational normative form on national polities. Thishas given rise to a widespread model of constitutional formation, which, with distinctions, has become visible in most national polities. Most contemporary constitutional polities, admittedly with high levels of variance, are marked by the following features:
1. An increase in judicial power, and a shift in emphasis to the judicial branch
In most contemporary polities, the judicial branch has assumed unprecedented importance, as a check on, or filter for, acts of legislation. This is tied to the fact that national judiciaries form sluices through which international law, often derived from human rights conventions, is admitted to and can circulate through the domestic legal/political order.
2. The end of constituent power as a primary source of norms
In most contemporary polities, the space for ex-nihilo political foundation is reduced, and national democratic agency loses significance as the founding source of legitimacy.Courts in fact now widely pre-define the scope and content of constituent power. In many cases, interactions between courts provide constituent power for polities, and polities conduct processes of constitutional foundation within constraints dictated by international norms. This means that classically constituted bodies exercise constituent power. Constituent power is often already constituted before it is asserted or exercised. The radically external source of legitimacy for the political system, which classical constitutional doctrine defined as the essence of democratic institution building and legitimation, is lost.[12]