GLOBAL LAW Academic Year 2017-2018 Lesson 4, 5 March, 2018

1. GLOBAL LAWAcademicYear 2017-2018Lesson 4, 5 March, 2018 Roberto Scarciglia Università di Trieste Dipartimento di Scienze politiche e SocialiPiazzale Europa, 134100 TRIESTEe-mail: roberto.scarciglia@dispes.units.it

2. Globalization is the umbrella term used to capture the enormous increase in the flow of people, capital, goods, services, and ideas across national borders. Several influential strands of thought suggest that pressures for international constitutionalization are a product of globalization and the accompanying increase in the reach and density of international legal norms. Question: to what extent does globalization drive constitutionalization in international law?

3. The relationship is mutually reinforcing because, on the one hand, the increase in transnational activities associated with globalization induces greater demand for many forms of ordinary international law, including international economic law. in the other hand, international economic law facilitates the international flows of goods, capital, people and ideas associated with globalization.

4. Other types of international law such as human rights law or environmental law generally do not promote globalization per se. However, these bodies of law may expand in order to address regulatory concerns that only arise with globalization (such as concerns regarding transnational externalities or regulatory competition) or with the advance of international law aimed at market liberalization.

5. international law of economic integration international environmental law some types of human rights law address these types of concerns, they should be understood as sub-constitutional or ordinary international law. the increased transnational interactions that globalization enables give rise to the possibility of various forms of market or political failure. increased globalization may make it more valuable for actors to enter into denser legal and institutional relationships, including constitutionalized relationships.

6. Methodological dangers • 1) Globalizationhas a wide referentialrangeincluding a complex mix of • Economic • Technological • Cultural • Political • factors, interconnected • 2) at other times we define globalization with the prevalence of key factors:

7. by the prevalence of concepts as: • Economic liberalization • Westernization or Americanization • Internet Revolution

8. We said in another lesson that: globalization refers not only to a settled historical accomplishment and its casual preconditions, but also to an ongoing and widely ramified process A gradual accumulation of various forces and tendencies in an unfinished dynamic stretching back to the early modern period There are many forms of resistance and counter-tendency. In any case we have referred to the velocity of these phenomena that are moving in a never-expanding past

9. this dynamic of intensification also operates across and between different fields: Technological development growth, cultural dissemination Cultural convergence new global markets Other factors: The intensity of process of social disembedding (as the main characteristic of interpersonal relationships in contemporary and multicultural societies). The generation of new forms of interconnectedness The compression of time and space:

10. Time-space compression refers to the set of processes that cause the relative distances between places (i.e., as measured in terms of travel time or cost) to contract, effectively making such places grow “closer.” The idea of a “shrinking world” is not new and, in the face of rapid advances in travel, such as the jet airplane, and communications (especially the Internet), has entered into the public geographical imagination

13. In the 'compression chamber' of globalisation similarities and differences of life-chances and experiences alike are amplified as are perceptions of what is valuable or otherwise in the common standards to which we aspire and the different conceptions of the good life we inherit newly dislocated lines of concurrence and antagonism of interest, of co-operation and conflict, of association and dissociation, of identity and difference, of social solidarity and tension all proliferate, each the condition, consequence and reinforcing cause of the other

14. It stimulates new forms of convergence and divergence of interests, outlooks and affinities and involves not only a dense set of connections between the various sectors or dimensions, but also a significant degree of autonomy within each no one sector or dimension (or actor) should be seen as entirely dominant and that none should be seen as merely subordinate. Instead, each dimension should possess its own developmental logic, and each its own trajectory, with all connected through circuits of mutual influence rather than lines of unilateral determination.

15. the combination of globalizing forces produces a shifting, unresolved and unpredictable state of affairs, so too each dimension within that combination displays the same open horizon of development. each sector, in the absence of any overarching logic of convergence or of causal priority must follow its own relatively autonomous course Legal scholars and comparatists have a general commitment to re-situate the state on a multipolar and densely connected legal map in a complex relationship with other economic, political and cultural globalizing forces

16. Reconceptualising global law • Twiningstries to develop a different idea of global law with respect to otherscholars • it is based upon one argument comprising three layers – rhetorical, structural and epistemic. • we should take the idea of global law seriously: • first, because of the increased ‘real world’ currency of global law talk • secondly, because such talk echoes an underlying series of changes in the pattern of formation, distribution and circulation of law; • thirdly, because that objective trend, and the language in which it is articulated, both reflects and

17. encourages an important shift at the margins in the very way that we think about legal authority and strive to refashion law on the basis of that knowledge. Taking ‘global law’ talk seriously question of language and its use, and of the pattern of thought and conceptualization that this expresses. However tempting it might be to seek refuge from the cacophony of global talk We cannot simply assume that no cost to our understanding is incurred by ignoring or sidelining it.

18. We should not lightly disregard the crude fact that ‘global law’ • along with kindred terms such as • World law • Universal law • Common law (or new common law) • Jus Gentium • Earth Jurisprudence • the 'global law' concept could be a general category in explaining the changing shape and texture of the contemporary legal world (Twining) • Proliferation of the discourse of global law and global legality, then, should at the very least give us pause for thought.

19. This may seem a superficial starting point • but if we follow its lead we discover the outline of a basic structural shift in the generation and mobility of law with which the emergence of a general category of ”global law” is aligned • As we shall see, the byword is difference, with the various treatments of global law as law displaying a striking diversity • Different manifestations have something important in common • A common ground of the various new articulations of global law, a powerful diversity of movement of law beyond the state

20. Defining Global Law • From a first point of view, we can speak • beyond transnational law • the idea of global law demand that we reach beyond the old Westphalia duo of national and international: • Domestic law of the state and its citizens • International Law between states • We should comprehend legal space not as a series of self-contained and clearly demarcated jurisdictions both between different states and their respective municipal laws (internal–internal) and between this general domain of national law and an international law (internal–external) whose own horizons are limited to the statist point of view (external–external)

21. In any case, the national state remains important and suffice to think of the system of sources that prevail within a state

22. The Principle of Integration If a Ysystemcomplements the statementsx¹ e x², coming from the X system, and the statesmentsz¹ and z², coming from the Zsystem, the samestatements (x¹, x², z¹ e z²), ARE VALID to the extentthattheyhavebeenintegrated in the Ysystem. z Y X 2 1 1 2 Until the time whenthisintegrationdoesnotintervenex¹, x², z¹ and z² do notbelong to the set Y and are notvalid in thissystem

23. whereas subsequently these elements can be part of the set Y (x¹, x² ∈ Y), since they have become rules of the integrant system. Y x1x2 X x1 x2 x¹, x² ∈ Y

24. Global Law offers us more or less expensive alternatives, depending upon whether yhe emphasis is upon overcoming the division between the domestic and the non-domestic of the received state-centred understanding or upon overcoming a restricted reading of the non-domestic. Is there a model which covers all forms and levels of 'state-uncontained' law and their interdependencies against a backdrop of an increasingly porous division between state and non-state law and between the myriad forms of non-state law? EU (legal framework of regional polities) NAFTA MERCOSUR Islamic Law Ius Publicum Europaeum

25. Key Terms Some categories of law operates at the external global edge of the transnational domain. What qualifies law as global law What alla forms of global law has in common «is a practical endorsement of or commitment to the universal or otherwise global-in-general warrant of some laws or some dimensions of law» (Walker) Global law is far from an entirely new category of law

26. Global Law does not seek to offer a novel definition of law-in-general It is an adjectival category (not nominal category) It supplies a selectively applicable variation on a theme, rather than a complete departure from familiar understandings of law In this regard, we can say that it is not bound to a particolar territorial jurisdiction: it is a recurrent theme in the history of the legal imagination and its efforts to shape and reshape the regulatory environment

27. Under the broad umbrella of contemporary globalisation, is the extentand intensity of the contemporary movement towards global law, whether implicitly understood or explicitly styled as such, and the convergence of that movement from so many different quarters and perspectives.

28. Umbrella as one symbol of (new) global law

29. Another symbol of globalization is the globe

30. Elisée Reclus (1830-1905) and the Great Globe