I. Methodological Issues

A. Field studies and UNOs¶

The ‘Global Law’ program is the central research program of the Perelman Centre for Philosophy of Law. The Centre was named after one of its founders, Chaïm Perelman, leader of the Brussels School of Jurisprudence,¹ and has developed and applied his pragmatic approach to the current transformations of law induced by globalization. The Global Law Program started some 15 years ago with the study of the consequences of globalization on law and governance, and progressively focused on the emergence of new forms of regulation in different sectors. Our pragmatic approach to legal phenomena has led us to study the consequences of globalization on law, not grounded in an existing theory, but rather by starting empirically from case studies and field observations. We conducted several field studies in areas particularly affected by globalization, such as the regulation of the internet and of virtual worlds,² the fight against climate change,³ but also corporate social responsibility,⁴ human rights transnational litigation,⁵ financial and accounting regulation, technical standards and indicators,⁶ as well as the European Union as a laboratory of global law.⁷ In order to do that, we often started from specific cases (such as the Yahoo! case about the internet, the Nike case about corporate social responsibility, the Unocal-Total case about human rights transnational litigation), which we studied in great depth, without limiting ourselves to a strict approach of positive law, but on the contrary by providing a 360-degree view on the case, and by taking into account data that are still too often considered irrelevant from a legal perspective: media reactions, strategies of actors, technical constraints, economic consequences, etc.

These case studies often put us on the track of what we call ‘UNOs’—which stands for Unidentified Normative Objects—whose legal character is uncertain or challenged, but which produce or aim to produce regulation effects. In these fields and in the case studies, perhaps unconsciously following Lévi-Strauss’ invitation, we have often favoured quirky, strange, new, and puzzling objects, betting that their strangeness itself was a sign of the value of what they could teach us. And we set off on the tracks of these strange creatures through the jungle of global relations, rather like the zoologist sets off to find new species, while comparing them to known animals and attempting to classify them into families. That is how, in each successfully explored area (naturally, we have also been confronted with deadlocks), we have been able to highlight some specific regulatory ‘dispositifs’, apparatus, or normative devices.⁸ Then, still moving in the direction that leads from practice to theory, we compared these different sectorial apparatus and, on the basis of isomorphisms that we were able to observe, we developed a few general hypotheses and designed a few conceptual tools.

B. Conceptualizing law without legal system—the micro-legal approach¶

This pragmatic approach to global law implies some methodological choices. These choices must be explained for they have important consequences. First, our study of global law is not a global study of law, at least not a priori. Economists usefully distinguish between two branches of their discipline, which also determine two points of view: macroeconomics and microeconomics. Such a distinction of level and of method also exists in other social sciences such as history and sociology. By analogy, we could also distinguish between a macro-legal and a micro-legal approach. The macro-legal approach gives priority to the study of the legal system of norms. The micro-legal approach determines how to decide cases and allocate rights. The concept of the legal system, on the one hand, and the case method, on the other, are the two frames that history has given us to think about law. The case method was handed down to us by the Ancients, through Antiquity and the Middle Ages, while the concept of the legal system was imposed by the Moderns, especially on the continent.⁹ In Continental Europe, the ‘legal system’ was imposed in such a way that when we study law, we almost always give priority to the macro-legal approach, as if there were no other, at least no other scientifically valid approach. It is of course through this form that we consider national legal systems. Moreover, we have extrapolated this concept by applying it to supra-state levels. As early as 1963, the European Court of Justice asserted that ‘the Community constitutes a new legal order of international law’.¹⁰¹¹

Legal theory therefore tackles the question of global law by looking for a global system and noticing that such a system does not exist, which is indeed the case. It follows, for a large number of law professors, that the concept of ‘global law’ does not make any sense and does not deserve any further consideration. In the absence of a legal system on a world scale, there is no such thing as ‘global law’. At the most one can bemoan or denounce the disorder—or the chaos—that prevails at a world level in the area of law. A way of escaping this deadlock is to resort to the solution of pluralism, developed notably by Santi Romano.¹² Romano contested monism (the approach centred exclusively on the state legal order) by showing that there are in our societies not one, but several legal orders that coexist and have various relationships between themselves. Pluralism can therefore be called upon to think about global law, no longer as a unique order—that cannot be found in reality—but rather as an inter-related constellation of legal systems.

This option is favoured by numerous important studies on globalization, notably in France, by Mireille Delmas-Marty in her theory of the ‘pluralisme ordonné’.¹³ Our position is not about replacing monism by pluralism, replacing the legal order with a plurality of legal orders, but rather about simply doing without the concept of legal order to immediately consider norms and legal interactions between actors as such, independently of any legal order(s) into which they would fit. I understand that this choice will raise fundamental objections from the perspective of legal theory and that it will be considered by many as absurd. Indeed, it is generally taught that a norm cannot exist by itself, but that it only takes on meaning and takes effect within a set or system of norms, to which the norm necessarily belongs.¹⁴

Why then give priority to this radical option? For a reason that is both simple and decisive in the eyes of a pragmatist: because the phenomena and objects that we observe in practice force us to do so. Most often the cases and normative devices that we examine on our various global field studies either cross the borders of established legal systems, or are located outside of these. Some even borrow their material from several legal systems. In sum, Occam’s razor leads us to abstain from assuming the existence of a system where it is clear to everyone that there is none. In other words, the concept of the legal system, as it was created in the seventeenth century and which used to be so important, appeared to us to be an obstacle, a screen, rather than a helpful tool to comprehend and understand the emergence of global norms. Accordingly, it seemed appropriate and urgent to break loose from it. This does not divert us from the objective mentioned by Lévi-Strauss to discover the ‘underlying order’ in these infinitely diverse and quirky phenomena. Reality brings about this riddle but instils doubts about finding the secret of the new order in the old one.

C. ‘Methodological nationalism’¶

All the more so as the concept of legal system (or legal order) has not only a logical aspect (an ordered and complete set of consistent rules), but also an important political aspect, whose relevance must be reassessed in a global perspective. The legal order is indeed very often understood and used as an instituted order established by an authority, better yet by a sovereign authority, typically a state. In this respect, the notion of ‘order’ refers not only to a system, but also to a command imposed by the authority to its subjects under the threat of sanctions. Historically, the construction of a legal system and the assertion of a sovereign political order have been the two sides (knowledge and power) of the same royal coin.

The logical and political aspects of the legal order merge to form a simple and rather rigid equation: law = legal order = state. Thus for many philosophers, conceptualizing global law (or ‘cosmopolitical law’ to use another term) does not only imply thinking about a new world order, but also implies almost necessarily, even if aporetically, asking the question of the existence of a world state. Some, such as Hans Kelsen, regard the law and the state as synonyms and consider that there is no other law than the law created by the states, ie national legal orders and an international legal order, made up of the law that states create together.¹⁵ We believe, for our part, that we must break off from this expression of what the German sociologist Ulrich Beck calls (well beyond law and legal thinking) ‘methodological nationalism’,¹⁶ while others speak of ‘statocentrism’.¹⁷

To conceive law as a state order would only be accurate from the perspective of sovereignty. It just so happens that if the world in which we live is certainly not a world without states (the UN tallies almost 200), it is, today as in the past, a world without a sovereign. Indeed, the world state is not likely to happen soon. This is probably a good thing according to Immanuel Kant, who taught that a world state would necessarily take the shape of a dictatorship.¹⁸ In a world without a sovereign, the states are forced to behave as actors among others. The state, sovereign (up until a certain point) within its own territory, loses all sovereignty (despite what international public law says) as soon as it crosses frontiers and must compromise with other forces. These forces are those of other states of course, but also those of other kinds of actors of the world society, such as international organizations and non-governmental organizations, or transnational firms and their networks.

Realists are well aware that we live in a multi-polar world on a long-term basis. Most of them divert their attention from the concept of a ‘world state’ to the issue of ‘global governance’. This notion of ‘governance’, borrowed from political scientists and managers, is worthwhile and could, in the fuzziness that is inherent to it, be useful to describe some co-regulatory devices.¹⁹ However ‘global governance’ arguably overly emphasizes the organs, institutional structures, and decision-making procedures, to the detriment of norms, objects, and devices themselves.²⁰ Empirical observation teaches us that norms are not necessarily produced by the structures of inter-state or para-state governance that are most often pointed out (international organizations, G8, G20, etc) so that we prefer to refrain from reducing a priori global normativities to by-products of more or less official institutions of global governance.

In other—more theoretical—words, it is necessary, after having ousted the concept of ‘legal system’, to distance oneself from the other major methodological tool of continental modern law, the concept of ‘legal source’. The main function and effect of that concept is to link the rule, its meaning, its scope, its binding effect, and its legitimacy to the authority or the institution that enacts it.²¹ We must not deny that link, but we must put it into perspective. In the anarchical or polyarchical context of globalization, which is very creative with respect to legal and normative texts, it does not seem necessarily appropriate in our eyes to determine the value of a norm exclusively as a function of its origin or its author. For pragmatists, the value of a norm depends less on its ‘pedigree’²² than on the effects that it produces.²³ Several examples, taken from technical standards, codes of conduct, rankings, and other labels, show that the normative force of these norms has little or sometimes nothing to do with the power, the official quality, or the legitimacy of those who first designed and spread them. For that reason, the analysis of the current transformations of law in terms of an adjustment of the theory of sources (for instance by including various kind of ‘soft law’) although quite logical for lawyers, does not seem to us to be in this case the most promising nor the most appropriate. We are convinced that a theory of global law cannot be reduced to an exhaustive inventory of these sources, even if it were possible to establish.²⁴

One might criticize us for concealing or even denying the link between law and power by separating the rule from its source and the system to which it belongs. We would thus be carrying out, either naively or intentionally, an insidious decoupling between law and politics. In reality, it is quite the opposite. It seems to us that by limiting, at a global level, the study of norms to texts enacted by official authorities, one sinks into a kind of formalism, to which lawyers are accustomed and which has been criticized by both Marx and the realists for concealing or being blind to the reality of power struggles. Moreover it is far from certain that these decision-making bodies of governance actually have the power of decision. A less punctilious analysis, which would extend to ‘soft law’ as well as other kinds of norms, might actually give us a better idea not only of political power, but also of economic powers and technical forces that effectively prevail.

D. Ubi societas ibi ius—the law of the global civil society¶

We have thus got rid, quite expeditiously I am afraid, of the legal system and of legal sources in order to understand global law. But what should we replace them with? How should we characterize the global environment if not as a super-state nor as a legal system? If we refer to the prevailing tradition of modern political philosophy, we would be left to think of the global environment as a ‘state of nature’. Here we are, back to Hobbes, who once described the international society of his times as a state of nature inhabited by Leviathans actually or potentially at war with one another.²⁵ No social contract links those Leviathans with one another. Hobbes thinks of the state of nature—to say it very briefly—as a lawless state where the right of each person knows no other limit than his power or the limit imposed by another’s power. In Hobbes’ state of nature, individuals are completely on their own and there is almost no society at all. However, some of his successors, especially in the jusnaturalist or liberal tradition, believed, as Locke did, that some kind of society might actually exist in the state of nature, in which individuals may claim and even enjoy natural rights, particularly the recognition of their property.²⁶ As the Romans said long ago: ubi societas ibi ius. There is no human society without law (but there are human societies without a state). Moreover the great Hegel, who was neither liberal nor jusnaturalist and who thought of the state as the ultimate form of government, taught that a private law grounded in persons, ownership, and contracts, necessarily precedes state’s law, logically if not chronologically.²⁷ And one may observe the emergence of pre-political institutions, such as corporations and guilds, within this sphere of private law (civil and commercial law), before the emergence of public law.

The position of the Scottish empiricists (like Hume, Smith, and Ferguson), whom Hegel had read and pondered, is of peculiar interest. They rejected, before Hegel, the hypothesis of a social contract and the artificial discontinuity that it implies between the state of nature and the civil state. Hume and his successors reformulated the problem and thus the program of philosophy of law. The problem is no longer, as in the social contract tradition: ‘what are the necessary clauses of a fair social compact?’, but rather: ‘how do legal rules and political institutions progressively emerge in the history of societies?’. With Locke, Hume, Smith, and Hegel, we can therefore conceive of a law logically or historically prior to the state, a law of the world civil society. Better yet, we can tell its story. We are able to observe, as a matter of fact, the transformations operating in different fields with regard to the norms and regulations that are produced by the strategical interactions between actors in the global environment. In the second part of this chapter, we report a few provisional results that we think we can draw from these observations.