What is Global Law?

The term “Global Law” is a catchall term the definition of which varies considerably depending on the author who uses it and the context in which it is used; it was exactly the same for the term “State” before its scientific rationalization was attempted. This flexibility is precisely the reason why its various uses should be taken seriously. Global Law, as both a scientific object and a new paradigm, is a process of solidifying the notion as an explicative and unifying mixture of a large number of disparate legal phenomena. The notion may be confusing simply because it designates heterogeneous legal phenomena.

The term has been stigmatized to such an extent that William Twining wisely prohibited his students at the University of London in his “Globalization and Law” class from using the “g word”.^{Footnote 1} It is not shameful, however, to presume that legal regimes and organizations whose scope or field is supra- or trans-national can be characterized as global. In this sense, “global” means worldwide but “Global Law” does not designate an independent legal order that is scheming outside of the existing legal orders. It is not a Worldwide Law, but rather the emergence of supra- and trans-national legal phenomena so inextricably tied to a dense network of legal relations that the different levels of the “sub-global” cannot be analyzed independently of one another. In what follows, the term “Global Law” will refer to this definition.

Ambiguity 1: Global Law and Globalized Capitalism

Global Law is often associated with the promotion of universal human dignity, property, and the freedom to contract. It is also associated with the uniformization of the world through the diffusion of the Common Law, the standardization of legal practices by large transnational law firms (model contracts, etc.), to the phenomenon of forum shopping, to the recourse to private justice (arbitration, conciliation, mediation) in international commercial relationships, and to the production of legal rules by the private actors themselves. In the same vein, Global Law would herald the triumph of commercial interests and/or of the managerial vision of the world and/or of the legal structure of globalized capitalism and/or of liberalism and/or of the Empire. Some would rejoice at this prospect because they consider that the advent of Global Law is likely to create a kind of impending radiant future for humanity, one that is characterized by open markets that ensure (sustainable) development and (environmentally-friendly) prosperity. Commerce would civilize manners; offer everyone the benefits of peace, human rights, representative democracy, and moderate government. Others are unhappy with the phenomenon, as they associate Global Law with the explosion of inequalities, the systematic pillaging of natural resources, environmental catastrophes, the crumbling of the State, its social policies and democratic institutions, the aggressive and arrogant expansion of Western civilization, the standardization of culture, and endless wars.

Global Law has undeniably a lot to do with all that. The dominant strands within Global Law are certainly tied to those of transnational businesses. The hegemonic projects which are expressed within Global Law are generally very imperial in nature. The ideologies that saturate it are certainly not foreign to economic liberalism and managerial ways of governing. Still, Global Law is about certain systems, procedures, and legal arguments which, like all systems, procedures, and legal arguments, are governed in large part by a logic of their own that cannot be reduced to the interests, projects, and ideologies that are invested in it at one given moment. Global Law designates an ocean of practices and legal forms that are too complex to be considered as a single block, too contradictory, too full of metaphysical subtleties, too open to a multiplicity of heterogeneous interests, projects, values, and ideologies.

Global Law cannot be easily reduced to the legal institution of globalized capitalism because it does not simply institutionalize global markets and transnational firms. Since the invention of international litigation of human rights, Total’s liability for the atrocities committed by the Burmese army in connection with the construction of a gas pipeline could have provoked a suit elsewhere than in front of an unsympathetic Burmese court, and there is no indication that this evolution has in any way benefited the firm in question.^{Footnote 8} The term “Global Law” also means the possible convergence, on a worldwide scale, of categories and administrative practices that certain parties hope will strengthen the State’s capacity for action.^{Footnote 9} Islamic Law is globalizing. In certain ways, it presents itself as a cultural alternative to globalized capitalism (and in some ways, it is in perfect sync with it). The inter-civilizational approach to human rights is a radical critique of Euro-centrist biases and of the managerial approach to the Global Law of human rights.^{Footnote 10} The TWAIL (Third World Approaches in International Law) projects welcome analyses that are very openly and very radically anti-capitalist.^{Footnote 11} These projects are not any less legal and no less global than the object of their critique. Everything is globalizing, not only the institutions of global capitalism but also its critics. If we do not see that the practical and legal forms designated by the term “Global Law” play a role in the institution of global capitalism, then we miss both the trees and the forest. But by entirely reducing Global Law to the institutions of globalized capitalism, we deprive ourselves of the opportunity to understand and work out its contradictions.

Ambiguity 2: Global Law and the Obsolescence of the States

The second ambiguity is related to the role of the States in the development of Global Law. We often associate, in France at least, Global Law with the loss of State influence. Global Law obviously includes a strong supra- or trans-national dimension, not only in the sense that it is deployed on a worldwide scale, but also in the sense that it takes place independently and outside of the State. Some rightly talked about Non-State Law. It is rare, however, that we manage to identify legal phenomena that are clearly independent of national legal orders. Most common examples are forms and practices that do not have their origin in the State, in which the role of the State is transformed, but the State does not disappear. From the perspective of Global Tax Law, which is a product of the competition among national Tax Law regimes (Law shopping), the sovereignty of the State can be a source of Law and political authority, a complex network of tax regimes and inter-state conventions, and possibly a valuable commodity. International Criminal Law causes the emergence of the “States of Justice” (those States that declare themselves as having universal jurisdiction), States that don’t play the game (those States that have not signed international treaties), and even—a newer entity in the history of Law—“Criminal States”. The Lex Sportiva is the product of a complex game of actors including regional and international federations, private actors (sponsors, the media), but also States, which intervene as States, and also through their own national federations or via regional and international federations and private actors (to which they often have very strong ties). These phenomena don’t lead to the “death of the State”, but rather to its integration in a deep and radically changed legal context that puts their prerogatives into perspectives while, at the same time, offering it new mechanisms of action.

All this is rather new. The cartographer of the world before the “post”—before Global Law—was Thomas Hobbes. The planet was a vast jungle (“State of Nature” in philosophical terms) whence emerged various oases (the national legal orders) that were tied together by customs, treaties, and a little bit of jus gentium (to the extent that they consented to be tied). From time to time, a State would attempt to become the Dominus Mundi and would inevitably fail. “Sovereignty” was the term that designated the unbridled and absolute liberty (at least by the Law) that was accorded to each State in relation to the other States. These States ended up grouped together at the Center of the World, or in other words, in the West. In this great jungle, we had also discovered (starting in 1492) bizarre entities (societies, nations, tribes, clans, etc.) that have since been linked to civilized States by an unnamed mesh of legal relations that were forced upon them (colonies, protectorates, unequal treaties, etc.). Starting from the second half of the 20th century, the landscape changes by becoming more complex.

There are still States (there are even more since the bizarre entities are now all presumably States, at least on paper), but these States are now integrated into a dense network of diverse legal obligations, weaved together by a myriad of entities that have authorized themselves to produce Law.^{Footnote 12} Judges have given themselves universal jurisdiction. Others (or the same) have elevated the decisions of their foreign colleagues as a source of Law in matters of domestic Law. Private international arbitrators created considerable bodies of Law that they began to codify. International organizations—including athletic associations, humanitarian associations, transnational corporations, religious institutions, and universities—produced rules and standards that are meant to be respected.^{Footnote 13}

If we want to continue with the naturalist metaphor, we can say that the mesh of legal regimes has become dense enough to form something like a complex and moving environment that now constitutes the ecosystem in which recently and formerly civilized States are now obliged to operate. The world is no longer a virgin forest in which we perceive several independent national legal orders, but a tangle of regimes, institutions, jurisdictions, prerogatives, powers, immunities, norms, labels, rankings, standards, privileges, doctrines, concepts, etc. Always a jungle, and always chaotic, but of a second nature, an urban jungle. Global Law as a worldwide legal Metropolis. ^{Footnote 14} Global Law is thus post-State, not because States would have disappeared or would not have had any use (they have not disappeared and they are still useful), but because it is the legal environment within which States now operate. State sovereignty is no longer the unbridled freedom in the state of nature, but a more relative and constrained kind of freedom. States now must interact with other entities (state or not) in the tangle of complex legal relations that they now inhabit. It is not that state savagery is now unthinkable, or improbable (far from it), but its stage is now relatively more urban.

It should be noted that these remarks are not meant to remove the ambiguities present in the term “Global Law”. To the contrary, they are meant to conserve them. Global Law is tied to the deployment of globalized capitalism as it is with the putting into the perspective of state sovereignty. But it does not lend itself to being easily reduced or being assigned a historical or political definition that is simple and unambiguous. This is also the reason why I love the term. It evokes every projection and simplification imaginable, yet it connotes a number of phenomena that turn out to be far more obscure and complicated than we could believe.

The Global Turn in Legal Thought

Now we come back to the first idea. We can do Administrative Law by concentrating on the study of the French legal order (domestic Law), we can mirror multiple national legal orders (classical Comparative Law), or can look to render an account of everything that is left to be subsumed under the term worldwide. Same objects, same theories, different scale: in its first meaning, all the legal theories, even stato-centrist ones, that cover the worldwide legal phenomena can be considered as global. Indeed, this change of scale does not in and of itself condemn the famous “Westphalian Duo” (dixit Twining) of the domestic legal orders and International inter-state Law pairing. This structure was already global, thanks to the universality of the legal forms that it would offer, and also because of its worldwide success. The first waves of globalization of Western legal thought had diffused it to the ends of the earth throughout the 19th century.^{Footnote 15} Numerous jurists have since interpreted worldwide legal phenomena through the prism of this structure. One is never obliged to flip over into the post.

The term “global” might designate, however, other things than a simple change of scale. Rather, it could be that the change of scale also creates a change in the object. If we agree that Global Law is not an independent, universal Law which is separate from the diverse sub-global levels and transversal flows, but rather the interaction of these levels and flows, then the change of scale leads us to think of these legal spaces as existing in their ensemble as well as their possible means of articulation. It is not that the articulation of legal regimes at different levels is something unknown to domestic legal orders (far from it), but the problems that generally arise find their solution in the unity guaranteed by the State, a solution that is by definition lacking in the worldwide Metropolis. The change in scale is thus an invitation to change the object. One could decline this invitation, but it is no surprise that a number of legal scholars make the choice to accept it.

It may also happen that in changing the object, we need new tools. We may come to the conclusion that Comparative Law, as long as its task is primarily comparing institutions of different national legal orders, is not adequate for studying transnational circulations. The change of the object can thus promote something like a change in theoretical perspective. It can create—as suggested by Benoit Frydman—a new paradigm. We might then have to speak of a Global Turn as we have spoken of a Linguistic Turn in philosophy.

None of this is surprising. If Global Law—to repeat—is the tangle of legal relations between sub-global levels and transversal and regional flows relating to heterogeneous legal entities on a worldwide scale, and if this tangle became dense enough to constitute in itself a new ecosystem, it is hard to imagine how academic legal communities themselves (those networks of academic and research institutions that are in charge of thinking about Law) could not belong to this ecosystem. If this is indeed the case, one can bet that the empirical conditions of observation and of theorizing about Global Law have themselves been affected, and we must accept all the epistemological consequences that come with that. However, to adopt a “global perspective” on Global Law does not imply solely changing the scale or the object. It means as well adopting the epistemological perspective of Global Law when talking about the Law globally. The theories relating to worldwide legal phenomena that have adopted this point of view may be labeled Global Theories of Global Law (GTGL).

The number of legal scholars who have taken this Global Turn in the last century is now large. There is nothing surprising here. It is merely a chicken or egg problem between the emergence of an object and the conceptual frameworks that enable its conception, or between the emergence of a legal phenomenon and an academic community that thinks it up. We should thus not be surprised that the emergence of the supra- and trans-national organizations are tied to the academic communities who are themselves supra- and trans-national, whose members no longer perceive themselves as representatives of their national community of scholars, but as belonging to an emerging community of jurists that have adopted a “global perspective”. It is not surprising then that next to these “Global Lawyers”, who practice a wide range of legal work on the global scale, we find “Global Professors”, whose diverse range of educational, institutional and academic work is in line with the after of the turn.

Foundations, Constructions, Limits

The WLT had the ambition of contributing to the building of the National State by rationalizing and legitimizing the national legal systems.

The legitimizing dimension involves the establishment of “foundations” of the State; in other words, it consists of discovering and delimiting the “fundamental principles”. The candidates are well known (the conscience of the people, the power of the sovereign, general will, political liberty, public service, etc.). We also know very well that the weariness of pulling from this list speaks to the exhausting nature of the question.

Because they claim a global perspective on Global Law, the GTGL concern themselves rather little with foundations, constructions, and limitations, but instead, for reasons that I will come back to, with the beginnings and the effects attributable to the existence of legal institutions and regimes that they understand as new. In the Global Turn we become interested in the new, in what is happening, e.g., in what is emerging and in what is circulating.

The Aesthetics of Law According to Pierre Schlag

Pierre Schlag uses the term “aesthetic” in a broad sense. It designates not only artistic activity, but also the sensible way of perceiving exterior objects. According to him, Law is an “aesthetic endeavor” in the sense that theories and legal discourse appeal to and promote a certain mode of sensible perception of the world and its objects. Without going into too much detail, his works are primarily concerned with the theories and discourses of American Law, which is associated with four distinct aesthetics.

The first is a grid aesthetic in which Law is presented in a space of two dimensions, divided by conjoining yet strictly delimited areas. This aesthetic has the constant burden of rigorously distinguishing legal regimes, acts, bodies, functions, and to produce identifiable criteria for these distinctions, offering a representation of Law drawn in with clear lines and well defined spaces.

The second is an energy aesthetic, associated with forces, their relations and conflicts, the movements, dynamics and flows that these relations and conflicts encourage. In this aesthetic, Law is marching, advancing and progressing. This march, these advances, this progress can be measured, quantified, and finally balanced. Pierre Schlag associates this aesthetic with the schools born in the wake of the New Deal when the idea of a State perpetually on the move appeared. The energy aesthetic is about the management of permanent reform; it depends on the ability to quantify magnitudes.

The third is the perspectivist aesthetic, which offers a representation of Law that varies with the situation of the observer. The perspectivist aesthetic declines to adopt the perspective of the omniscient narrator, assumes that legal theories are projects, permits their political character, recognizes their constructivist premises and embraces their skepticism. The pioneers of this aesthetic were Robert Hale and Charles Reich, but we find it especially developed by the feminist reconstruction and the identity approaches to Law, for which the Law is generally viewed from a given perspective. The perspectivist aesthetic is an aesthetic of relations, which are assumed to be stable (for example, in the feminist perspective: men are distinct from women, men still dominate women, and it would be best to remedy this through Law).^{Footnote 26}

The fourth and the last is the dissociative aesthetic. This is a radicalization (or a dissemination) of the perspectivist aesthetic. Legal phenomena are no longer understood from a single perspective adopted by the academic jurist who observes them, but from the multiple perspectives that each of the observers of Law adopts respectively within a given legal consciousness, including the practitioners and the academic jurists who produce the theory. The multiplication of perspectives prohibits the adoption of a stable definition or even of a specific shape for legal phenomena. These phenomena are always both “this” and “that”, and sometimes “a little of this and little of that”. The dissociative aesthetic extends the skepticism even to the position of the speaker of the theory, thereby preventing him from proposing a reconstruction of Law, even a partial one. This is an aesthetic of multiplicities and variations that proposes a fluid understanding of Law. It appears prominently in certain postmodern versions of Critical Legal Studies.

The Aesthetics of Global Theories of Global Law

I now come to my second intuition. What follows presents itself as an aesthetic history of dominant legal theories in the United States during the last century (from formalism to realism, from realism to identity politics, from identity politics to post-modern versions of Critical Legal Studies). All this offers an exciting way of writing a History of American Legal Thought. This is however not the reason why I would like to make use of it.

It seems to me—although Schlag does not say it—that it is very possible to interpret these four aesthetics as two pairs that create a structure. The energy aesthetic, because it is an aesthetic of movement, of changing borders, and of overlapping divisions, presents itself as the internal critique of the grid aesthetic. The dissociative aesthetic is very explicitly the radicalization of the perspectivist aesthetic. The first pair is that of the static and the dynamic (A-B), the second pair that of totality and multiplicity (C-D). Inside these pairs, there is conflict. The second member of each (B and D) is respectively the critic of the first member (A and C). Thus in the first couple, viz., ‘grid/energy’, B is the internal critic of A; in the second couple, viz., ‘perspectivist/dissociative’, D is the internal critic of C. Each critical term (B and D) presupposes the relative hegemony of its target (A and C).

My intuition is that the aesthetic of WLT is more a part of the first couple (grid/energy) and the aesthetic of the GTGL is more a part of the second (perspectivist/dissociative). As such, the upheaval in the post would mark a change of aesthetic.

When we place the scientific approach in the fixed framework of a national academic community, we do not have to ask ourselves from where we are speaking and to whom. This is because we may claim to speak in the name of the universality of science and of the rationality of the State. It is because we are talking to people who are accustomed to speaking among themselves, who speak more or less the same language, learned from frequenting the same libraries, and inclined to think that this way of speaking is the only existing way to speak, or the only way available, or at the very least, the best way.

In the worldwide Metropolis, things go completely different. Here, it is about Global Professors who have in common the fact of having to negotiate their (at least partial) departure from their legal communities of origin, of having to all be fresh-off-the-boat immigrants who still carry marks of their heritage. This common experience does not provide a single cultural base, since the meaning and the manner of negotiating the relation with their community of origin varies considerably depending on which community of origin we are talking about, and depending on the distance that the individual has managed to take. There are as many ways to become a Global Professor as there are ways for diffusing the various versions of Western legalism and their reception within unique cultures and unique historical contexts. The recognition of this multiplicity of experiences feeds the perspectivist aesthetic (and its internal critique, the dissociative aesthetic).

It is true that the worldwide Metropolis certainly has a center (or a Conference of centers), peripheries, and semi-peripheries. It is true that the more we are situated at the center of this Metropolis, the more we are inclined to forget our own situation and to observe it through the third person, as if we could abstract ourselves from it. The more we find ourselves at the center (or at one of the centers) of the worldwide Metropolis, the more Global Law appears in the shape of a uniform and universal Law, indifferent to the conditions and the context of its production, a sphere without borders (or edges). In the era of the post, ethnocentrism has not disappeared. It has been transformed into something like global-centrism that faithfully repeats its shape and blindness. Before the post, theoretical ethnocentrism had to make a considerable effort to hide what could have suggested the existence and the value of ‘other’ symbolic universes and modes of thought. In the post, global-centrism spends even more energy trying to forget that the global sphere is fragmented, crisscrossed by borders and fault lines to the point of not even being a sphere. And because these borders and fault lines are stubborn, the perspectivist aesthetic and its dissociative critique are ideal candidates for providing the dominant aesthetics of the GTGL, even at the center.

The View from Afar

Because the GTGL looks to worldwide legal phenomena, its objects can only be viewed from afar. When the WLT is attached to the precise and meticulous construction of legal doctrines that would be comprehensive enough to provide a detailed account of a given domestic legal order, the GTGL have a tendency to bring up things “in bulk”, with a degree of generality that often leaves little place for technical subtleties. It is understandable why it is this way. Seen from China, Duguit looks more like Hauriou than when seen from Toulouse or from Bordeaux. Seen from Sudan, the composition of the French Constitutional Council does not differ all that much from the composition of the American Supreme Court. We discover the similarities when we view from afar, but we lose sophistication and precision. It is the reign of the great syntheses and strategic shortcuts.

Completeness is also lost. When a study on the precedent and doctrine of expropriation according to the French Conseil d’Etat is conducted, one can still hope to propose to readers a comprehensive bibliography and an exhaustive list of pertinent decisions. But when working on Global Administrative Law of expropriation, the fact that one does not read Chinese or Japanese prohibits one from accessing a pile of Japanese or Chinese studies and cases that are directly tied to the subject. The mass of texts and linguistic obstacles has transformed the ideal of exhaustiveness into an inaccessible dream or into a neurotic symptom. One can regret this, and think that it is the triumph of vagueness, journalism, and weak ideas. It is true that (we will come back to it) the privileged role of the legal technicalities in the world of theorization at work in the WLT has found itself weakened, and that legal technique is still largely seen as what constitutes the beauty and rigor of the legal theories in many different national academic communities. The upheaval in the world of the post would mean a weakening of the rigorousness and of the seriousness that is fitting of something being labeled as “Legal Thought”.

We can however also consider that what is at stake in the Global Turn is less the disappearance of rigor and seriousness than their transformation. The GTGL produce the standards and criteria of their own new modes of reasoning. These are founded on strategic acuteness, originality of theses and clarity of synthesis, the power of perspective, the prolificacy of research perspectives, and the interest of the projects these perspectives allow. We will thus interpret the Global Turn as the emergence of new forms of rigorousness and seriousness in legal thought.

I don’t have the skills necessary to expound on the question of whether there exists a “legal logic”, whether this “legal logic” is particular to legal science or whether this is only the application of a universal logic to legal phenomena, and whether the idea of a “new” logic is a logical monster or not. I would like to suggest however, in this third part, that one doesn’t exactly reason and argue in the same way in the WLT as in the GTGL… I will merely throw out some cursory thoughts.

Normative Pluralism

Whether in the name of the autonomy of Law, of its autotelic and autopoietic character, or by invoking the hermeneutic circularity, we agree to understand Law as a system constituted by arguments that are only pertinent if they are recognized themselves as legal. We can certainly cite political considerations or values of justice, but they must be translated legally. In front of a judge, one does not expect from the parties to plead the superiority of their social status or the impoliteness of the opposing party. Only the legal has teeth.^{Footnote 27} As a result, it is from the perspective of the internal view of Law that jurists define the separation between what is legal and what is not legal, through the recognition by the legal system of the “legality” of the jurisdiction, facts, rules, concepts or arguments in a given case. This is why, during the time when the WLT of the State (the so-called “General Theories of the State”) wanted to be legal Theories, their ambition was to trace with extreme precision the border that separates the State understood as a system of legal norms from a State understood as a sociological or psychological phenomenon, or as a political power. To this end, these WLT have focused, in various ways, on reducing facts to strictly legal phenomena and to express them in a specifically legal form. This mode of theorizing implied three operations: firstly, reducing the chaos of life to several clearly identifiable types of objects (norms, of course, but also at times, depending on the adopted ontology, concepts, ideas, acts, bodies, etc.) and secondly, the formalizing of these legal objects, by using concepts that were recognized as having a legal meaning, then, thirdly, systematically classifying them within legally pertinent typologies. I am going way too fast, but I believe that one will understand more or less what I mean.

It seems to me that one of the characteristic traits of Global Law is to put forward phenomena that are legal in a certain sense, but cannot be correctly described (or a fortiori explained) in the framework of a strictly legal epistemology (in the sense that this epistemology would be grounded on the reduction, formalization and classification that I just talked about). The code of conduct of a large multinational company is not real enforceable Law when it acts as a PR tool on a web site. It becomes enforceable Law when it is invoked before a judge that sees it as grounds for enforcing certain legal obligations.

Inspired by works of legal anthropology, some looked to render an account of these hybrids by talking about “legal pluralism”. The expression ordinarily designates the coexistence of positive norms (in the sense of State Law) and of non-positive norms, stemming from Living Law (Ehrlich) or from Social Law (Gurvitch). This pluralism here is classified as legal to the extent that these theories look to establish the recognition of the “legalness” of non-state rules, with the goal of contesting the reduction of Law to positive (State) Law. Still, even the most centralized national legal orders have always recognized the existence, within a legal system, of rules of non-state origin (customs or professional practices for example). In practice, the State has never seriously claimed a strict monopoly on normative production, but rather that State Law prevails over Living (or Social) Law. In this sense, it could be that the pluralism of Global Law largely exceeds what we ordinarily understand by the expression “legal pluralism”.

Speaking about “Living” or “Social” Law is a way to expand the sphere of the legal to the rules produced by non-State institutions but also to understand these rules as a kind of latent Law waiting for recognition by State-Law. There is no “Living” or “Social” Law out of a context where the State prevails. Furthermore, it is very likely that the prevalence of State Law in a given social context explains how social norms can be understood through patterns of thought and categories that are homologous to those conveyed by State Law. Legal analysis seizes upon the rules of court settlement in matters of divorce and treats them as rules of Law in action because these settlements are produced under the shadow of the Law, that is to say, produced in an institutional context where the conflicts that arise from the failure of “Social Law” are worked out before a judge using clauses from positive Family Law. This pluralism is legal because the non-legal normative orders are strengthening and complementing the prevailing legal order which is modeling them. Rules of civility between neighbors or rules for bargaining between married couples find themselves shaped into procedures, categories, and protocols of thinking that are under the purview of Law and legal thought. The notion of “legal pluralism” does not signal an exit from legalism, neither does it signal that legalism is in danger, but rather, it signals the extension of its margins and the constitution of “the social” as the negative-image version of the Law. There is no “legal pluralism” outside the uncontested supremacy of the Law. This supremacy can either be understood as a universal feature of every human culture (“property is a universal institution, therefore the Cheyenne do have property rights, even if these rights are different from ‘ours’”) or as a jeux de mot, every prevailing normative order in a given context being labelled “Law” (“there are no property rights for the Cheyenne, but the way they are allocating things to each other can be called “Law” since it prevails within their society”). In both of these theoretical perspectives, we lack the words for distinguishing within normative orders that prevail in “their” context, those that run on Western legalism and the others.^{Footnote 28} This lack is a problem, since the key question to answer here is not if “their” prevailing normative order shall be labeled Law or not, but rather, now that western legalism has been exported everywhere, which normative order (may be non-legal) is providing the tools for articulating Western Law with what remains from the non-Western normative orders which were prevailing before the encounter. Despite the axioms on which “legal pluralism” is grounded, it may very well not be Western Law.

Because within the normative hybrids that populate Global Law the Law of western origin does not always prevail, it might not be capable of shaping non-legal normativities the way it does with quasi-legal orders in the West. To the contrary, the Law, its rules, procedures and categories might very well find themselves shaped by other normativities, whose mode of functioning is foreign to legalism. The modes of articulating non-legal orders with the Law might very well be themselves non-legal.

It is therefore possible that the pluralism of these hybrids is not primarily or centrally legal. It could thus be more pertinent to talk of “normative pluralism”. This would lead us to wonder if Law remains Law as long as it does not prevail, or if Global Law is even still Law, in the ordinary sense that this term is used. The term “normative pluralism” is a better fit to describe these situations of multilingualism where the dominant normative language of a community is not necessarily the language of the Law. Sometimes, from the violent encounter of legal and non-legal normative orders, new hybrids have emerged that are neither purely “legal or “non-legal” in the sense that the structural borrowing of building blocks coming from both has produced a new normative order which langue (or structure) can only be understood as the result of a process of creolization. The term “normative pluralism” is loose enough to cover these cases.

Disciplinary Eclecticism

From the perspective of the WLT, none of this is very new, neither is it very interesting. Nobody has ever claimed to actually reduce the State to its Law. Many grant themselves the time and effort to study the other normativities that are at work. All the facts, acts, norms, and legal concepts that are tied to the action of the State are, and have always been, legal from a certain point of view and not legal from other points of view. The administrative act through which the President appoints Dupont as the head of a state-owned agency is a legal act that involves theories of Public Law. However, it is also a psychological act (the president loves Dupont), a political act (Dupont is rightwing), a sociological act (Dupont and the president went to the same judo class when they were kids), etc. But specifically, what interests the legal theory of the State, is the legal aspect of what the president does. Similarly, nothing in the ontologically hybrid character of Global Law should prohibit us from trying to make a legal theory of Global Law. There is no reason to object to this. Global Law does not carry normative hybrids per se. Rather, the adoption of a global perspective on Global Law might weaken the need for promoting a specifically legal theory of Global Law, and strengthen the belief that being interested only in the purely legal dimension of the studied phenomena is reductive and formalistic. It might lead us to be no longer satisfied with this pure and narrow “legal” approach.

WLT mapped out legal knowledge as the juxtaposition of distinct yet complementary scientific perspectives within the ensemble of social sciences (the sociologist teaches us that Dupont and the president did judo together, the political scientist that Dupont is rightwing, the psychologist that the president loves Dupont, etc.). In this context, the work of the jurist is to produce the knowledge that specifically concerns the “legalness” of the phenomena being considered (Dupont is appointed by a decision made in the Council of Ministers, this decision is only valid if it is signed in such or such way, by such and such officials, it can be contested under certain conditions, etc.). To the contrary, the Global Turn encourages the production of eclectic knowledge that strives to think of the various dimensions of the studied phenomena in their ensemble, relatively indifferent to the disciplinary origin and the disciplinary coherence of the theoretical tools which are mobilized.

Academic communities that dedicated themselves to the production of WLT wanted to be communities of “jurists” and recognized each other as such. We certainly find a considerable number of academic jurists whose project is to construct academic communities of jurists on the global scale. But this project can be interpreted as the simple reproduction on the global scale of that which preceded it on the national or regional scale. Other academics take the Global Turn more firmly and seek to adapt the nature of their knowledge to the objects that they are studying. The task is easier for those who did their studies in one or two (or three) given disciplines (not always Law), but acquired, in one way or another, some knowledge of the Law. This provides points of interest when thinking of the future of legal education. These Global Professors are not particularly driven to attain the status of “jurists”, and do not claim to produce knowledge that is specifically “legal”. To tell the truth, they find the disciplinary distinctions boring. These distinctions belong a little too much to the world before the post. What is important for them is the pertinence and the seriousness with which the required theoretical tools are mobilized. When they speak of Foucault (and it does happen that they speak of him) what is important is not so much knowing what they are doing is really philosophy but that they have read enough of him so that when they talk about him, it remains interesting. When they carry out economic analysis, which happens even more often, it is enough, to their joy, not to be overly mistaken about the fundamental concepts of economics, to avoid errors in calculation, and choosing the wrong statistical models. And of course, when they study the legality of a phenomenon, which happens all the time, they carefully try to avoid confusing the legal texts that are in force, to characterize the facts in a credible way, using categories and legal reasoning in such a way that an observer only sees “Law”, etc.

One could perhaps find this disciplinary eclecticism to be a regression from the perspective of trying to elaborate critical knowledge on Law. Through criticism (according to Kant), knowledge takes charge of its own conditions of possibility and deduces from these conditions the ways in which the object studied can be constructed. In the criticist approach, the constitutive formalities of disciplinary knowledge determine the objects of this knowledge. Before the post, and particularly in the WLT that resorted to this criticism, legal science dealt with what could be known from the point of view of legal science. In the worldwide Metropolis, the objects are dictated by the issues of real life, in other words, by the way in which various communities of actors and experts understand and construct these issues, or even by the various endeavors and projects that these actors and experts pursue. These endeavors and projects are not all (far from it) “legal”. The question of the conditions of possibility of the knowledge they produce is rarely asked.

From the diversity of these communities of actors and experts, from the multitude of endeavors and projects that emanate from these communities, emerge global legal phenomena that manifest themselves most often in shapes elaborated by other knowledge, other protocols of thinking, and other disciplinary projects than those carried out by academic jurists. All this was already largely true when legal science was practiced on a national scale, but the change of scale, the multiplication of actors, and the frightening complexity of issues and stakes that followed (how do we slow down global warming?) has, without a doubt, made it more difficult to believe in the preeminence of a single epistemic perspective for understanding and resolving global problems. Open competition between various types of expertise and knowledge does promote a relativization of authority of scientific knowledge in general (to deal with the problem of hunger in the world, do we look to economists, agronomists, or climatologists? and is this really the question to ask?). Finally, perhaps the concrete conditions in which the world is globalizing have given the first word to those other than the jurists (but it is still a chicken and egg problem, the jurists come often after the merchants and the engineers, but one often needs some kind of Law in order for this kind of commerce and engineering to exist). Whatever the case, the global forum does not promote the isolierung of Law. Rather, it has the tendency to endorse epistemic perspectives that mix, without too much compunction, heterogeneous knowledge, which often includes a smattering of political points. The power/knowledge is seen here in its raw state.^{Footnote 29}

From Whole to Fragments

In Global Law, and this is probably the most striking contrast with WLT, we cannot anymore relay what the national institutions and bodies are doing to a single political unity—call it People, Nation, or Constituent Power. The subjects that manifest themselves are not necessarily less political but they took the shape of networks of actors and experts. The question of the relationship between Law and politics has thus been firmly changed. In the WLT, the political forces were located at the head of the State (the sovereign bodies) and at times at the base (the citizens). In this way, one can interpret the WLT as the (political) enterprise to subject the political (understood as the arbitrary nature of the Prince and sometimes of the Multitude) to legal (technical) rules and procedures. Essentially, this enterprise consisted of separating from actors and actions those who came under the domain of political and those who came under the domain of legal, the latter considered simply as technical and thus politically neutral, all while nevertheless making legal actors and their actions the product of sovereign political entities. The political (the will or the power of sovereign bodies) was thus the source of Law but its operations were depoliticized through their submission to technical rules and procedures. These operations would thus be neutral. Legal actors (and their actions) could appear as passive agents for carrying out the will of the original sovereign subject, and in return for being stripped of their political attributes (far more during the 20th century), would subject the sovereign to technical mechanisms, rules, and procedures of which they were the masters. I will not discuss here whether this endeavor was achieved in a way other than through theory, nor will I discuss whether it was actually achievable in the first place.

From the perspective of the relations between Law and politics, Global Law appears as a mesh of regimes, systems, and institutions that are at times purely technical, at times explicitly political, and at times both. Market laws, information systems, technical or accounting norms do not claim to manifest a political will or an arbitrary political nature that should be limited. Instead, they act as technical systems based on objective knowledge, politically neutral. This is likely the reason why some thought that legal globalization was “post-political”, in the sense that it would herald the triumph of experts and usher in the idea of political that we have known until today (sovereignty). This vision must be balanced by the consideration of other supra- and trans-national regimes, organizations, and legal systems that explicitly meant to achieve political projects. Environmental Law was first promoted by those who were looking to preserve the environment; International Human Rights Law was first promoted by those who made respect for human rights a political priority; development was first promoted by those who believed that they had the solutions to underdevelopment, etc. Other institutions, organizations and systems are presented as technical in their functioning but political in their goals, as being technical is sometimes the best way to be politically efficient—we defend human rights better by presenting them as objective and neutral.

Global Law thus presents itself as a legal mixture of the technical and the political that renders any attempt at their strict separation somewhat futile. It is easy to see their permanent tension at every level. Moving past the national framework does not signal the death of the political in Law, but rather its dissemination at each intersection, border, and fault line of the Metropolis. Politics is everywhere Law is done and thought of: in the ambivalences of each arbitrator, in the denial of each bureaucrat, in the ethic ambiguities of each expert. All this was perhaps not any less true at the national level or in the world of before the post, but it was much easier to simplify the issue by isolating the political at the head of the State (and sometimes at the base), which is all the more reason why we believed in it in the first place.

This dissemination is possibly the hint of a more profound mutation. The impossibility of attributing the origin of Global Law to a single subject makes it more difficult to think of it in terms of a whole (the only candidate would be Humanity itself, but Global Law does not look anything like a universal Law of Humanity). The WLT generally seeks to render an understanding of the national legal system as an articulated, coherent and dynamic whole. These considerations are prevalent in the conversation on Global Law, but it seems to me taking firmly the Global Turn might lead one to forget about these types of aspirations. This is not so much because the proposed material would be too heterogeneous, or too fragmented, or too variable, or too disseminated, but because the endeavor of totalizing had everything to do with the wish to unify the political community by the Law under the power of an originating Sovereign, which is lacking today.

It cannot be repeated enough: the worldwide Metropolis is not a sphere. Global Law looks more like fragments of something than a whole, and nothing indicates that it is destined to become one. The cosmopolitan project is only, in certain global arenas, one project among others. Its advocates often recruit in national or regional communities that fancy themselves to be Empires without always having considered the extent of heterogeneity that would be involved in achieving their vision.

Conclusion

I have just presented three intuitions relating to what legal thought would be if it took the Global Turn. I do not know what they are worth, and cannot in any case claim that they are new. It seems to me that I can name dozens of colleagues who would gladly describe themselves as Global Professors. Surely what I discussed above is too intimately tied to the way in which I myself negotiate the tension between my belonging to a national academic community and global academic communities. Perhaps other ways of negotiating this tension would lead to other intuitions. One can thus also read the above as a testimony.

Nevertheless, what emerges from these intuitions is a thesis. The time of the Westphalian Legal Theory is over, and a new way of theorizing about the State and its relations with its legal environment is emerging. Global Law refers to this new environment as well as the way in which it is conceived. This thesis is fragile. It could be false, or the reflection of a transitory moment. It could be that, through the last ruse of History, the historical meaning of Global Law’s emergence is to pave the way for the Universal and Homogenous State and with it, inevitably, the triumphant return of the Westphalian Legal Theory genre. This time, it would be applicable to what would be the Mega-Global State, the cosmopolitan totality finally realized. As for me, I do not believe too much in History. This scenario seems plausible, but just as plausible as many other very different scenarios. But it also seems quite a bit less plausible than others because its realization flies in the face of projects and interests that appear very strong to me. It is true that there is nothing objectionable about a ruse of History, since it is a ruse. Let’s just say then that, for now, this hypothesis of the Universal and Homogenous State is not very useful. It does not allow us to think about the mesh of networks and flows, normative pluralism, or the fragmentation of lifeworlds [Lebenswelt] and visions of the world [Weltanschauung] within the worldwide Metropolis. Perhaps, one day, it will triumph. But this idea comes either too late or too early. Today, it is useless. After the WLT, comes the GTGL and not the GTMGS—General Theory of the Mega Global State. From now until the Universal and Homogenous State emerges from Global Law, we will have plenty of time to forget and then reinvent State-centered Westphalian Legal Theory, if ever the need arises.