A Provocative Question

How should one think about global law?¹ This is a provocative question because it presupposes an answer to another question, no lesser than the first one: does global law even exist? Nothing is less certain. One may certainly speak about a globalization movement, which is not always all that global; one can deal with global finance and global economy and bring up global issues, such as the struggle against global warming. But may one truly speak of a ‘global law’, when law remains, at least on the surface and in official addresses, the prerogative of the state or, in the case of international law, of the states? Wouldn’t it be wiser to talk about ‘the effects of globalization on the law’ rather than to invoke a ‘global law’?

A provocative question also in the sense that it catalyzes thought, reflection, inasmuch as by presupposing its object it allows one not only to consider—which is a prerequisite—the destructive effects of globalization on existing legal structures, both national and international, but also to discern and to conceptualize the new legal objects, often still unidentified or not properly identified, which emerge from transnational relations and the global society under construction.

These multiple and heterogeneous devices, that proliferate, often in anarchical ways, in the most globalized fields, challenge the understanding of lawyers by the extraordinary diversity of their origins, their shape, or their effects and by the apparent randomness of their arrangement and their combinations. However, they account for the necessary horizon of the legal philosopher and of the legal theorist of the twenty-first century. We are compelled, and this is not the first time in our history, to rethink law at the scale of the whole world.

We are urged by the changes in the world, and in legal relations and regulations, to re-evaluate the principles, concepts, and tools of modern law, which have been established for several centuries—firmly entrenched it was thought—but which reveal more and more clearly the limits of their relevance and their effectiveness to capture their objects and to put them across. We are forced to reconsider the classifications and categories in which the new objects that emerge every day, like platypuses of the normative bestiary, stubbornly refuse to be encapsulated. To tell the truth, these categories are so undermined that it might be necessary to rethink the legal norms anew, not to say law itself, and probably to resolve to invent a new logic of norms. It just so happens that these are the tasks of the legal philosopher and of the legal theorist, towards which—as always in periods of paradigm crisis—the law professors and often the practitioners themselves turn to, but also the philosophers and the whole of society in demand of law, and above all our students, particularly the most advanced ones.

On top of this practical necessity, there is also another, both more epistemological and more personal, that irresistibly stirs those who take an interest in philosophy and theory of law and therefore seek to understand what law is, to penetrate the secret of the enigma and—to accomplish this—to pit their strength against the most difficult problems in the understanding of legal phenomena that reality offers us.

As Claude Lévi-Strauss wrote, in a short commentary of 1968: ‘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’.²

Let us therefore follow the invitation of this great ethnologist, who received an education in both philosophy and law (even though he did not think much of the latter) and whose first major work was about a legal problem—the rules of marriage—tackled at a global scale.³

Like ethnologists, we should be aware of the evolution of social interactions and we have to analyze those unidentified legal objects that make up the substrate, or should I say the bric-a-brac, from which global law ‘se bricole’, to use another concept of Lévi-Strauss.⁴

But how should one take up this challenge and get down to this arduous and long-drawn-out job? How should one deal with this enormous mass of raw data? How should one organize and conceptualize this global law? So many questions with which those—increasingly numerous—who take up a research program in global law are necessarily confronted.

This chapter aims at providing some insights on these questions. It is based on research that has been carried out at the Perelman Centre for Philosophy of Law, which is the centre of the Brussels School of Jurisprudence. The first part is devoted to the discussion of some methodological issues. In the second part, I summarize some of our theses, based on data collected on several fields explored in previous studies. Both steps are for that matter necessarily linked in the constructive approach of the object. Let us add immediately, and not just as a precaution, that this course of action is only one of the possible approaches to the issue of the Law and Globalization—we do not claim to exclude or invalidate other approaches. It seems to us that the validity of a theory, in this field as well, must be measured pragmatically, primarily using the results and insights it provides.