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Globalisation and the Western Legal Tradition


What can ˜globalisation™ teach us about law in the Western tradition? This
important new work seeks to explore that question by analysing key ideas and
events in the Western legal tradition, including the Papal Revolution, the
Protestant Reformations and the Enlightenment. Addressing the role of law,
morality and politics, it looks at the creation of orders which offer the possibi-
lity for global harmony, in particular the United Nations and the European
Union. It also considers the uni¬cation of international commercial laws in the
attempt to understand Western law in a time of accelerating cultural intercon-
nections. The title will appeal to scholars of legal history and globalisation as
well as students of jurisprudence and all those trying to understand globalisa-
tion and the Western dynamic of law and authority.

Dr David B. Goldman is a Special Counsel at Deacons, Sydney, and an Honorary
Af¬liate, Julius Stone Institute of Jurisprudence, University of Sydney.
The Law in Context Series

Editors: William Twining (University College London), Christopher McCrudden
(Lincoln College, Oxford) and Bronwen Morgan (University of Bristol).

Since 1970 the Law in Context series has been in the forefront of the movement
to broaden the study of law. It has been a vehicle for the publication of innova-
tive scholarly books that treat law and legal phenomena critically in their social,
political and economic contexts from a variety of perspectives. The series partic-
ularly aims to publish scholarly legal writing that brings fresh perspectives to bear
on new and existing areas of law taught in universities. A contextual approach
involves treating legal subjects broadly, using materials from other social sciences,
and from any other discipline that helps to explain the operation in practice of
the subject under discussion. It is hoped that this orientation is at once more
stimulating and more realistic than the bare exposition of legal rules. The series
includes original books that have a di¬erent emphasis from traditional legal
textbooks, while maintaining the same high standards of scholarship. They are
written primarily for undergraduate and graduate students of law and of other
disciplines, but most also appeal to a wider readership. In the past, most books in
the series have focused on English law, but recent publications include books on
European law, globalisation, transnational legal processes, and comparative law.

Books in the Series

Anderson, Schum & Twining: Analysis of Evidence
Ashworth: Sentencing and Criminal Justice
Barton & Douglas: Law and Parenthood
Beecher-Monas: Evaluating Scienti¬c Evidence: An Interdisciplinary Framework
for Intellectual Due Process
Bell: French Legal Cultures
Bercusson: European Labour Law
Birkinshaw: European Public Law
Birkinshaw: Freedom of Information: The Law, the Practice and the Ideal
Cane: Atiyah™s Accidents, Compensation and the Law
Clarke & Kohler: Property Law: Commentary and Materials
Collins: The Law of Contract
Cranston: Legal Foundations of the Welfare State
Davies: Perspectives on Labour Law
Dembour: Who Believes in Human Rights?: The European Convention in Question
de Sousa Santos: Toward a New Legal Common Sense
Diduck: Law™s Families
Elworthy & Holder: Environmental Protection: Text and Materials
Fortin: Children™s Rights and the Developing Law
Glover-Thomas: Reconstructing Mental Health Law and Policy
Goldman: Globalisation and the Western Legal Tradition: Recurring Patterns
of Law and Authority
Gobert & Punch: Rethinking Corporate Crime
Harlow & Rawlings: Law and Administration
Harris: An Introduction to Law
Harris, Campbell & Halson: Remedies in Contract and Tort
Harvey: Seeking Asylum in the UK: Problems and Prospects
Hervey & McHale: Health Law and the European Union
Holder and Lee: Environmental Protection, Law and Policy
Kostakopoulou: The Future Governance of Citizenship
Lacey & Wells: Reconstructing Criminal Law
Lewis: Choice and the Legal Order: Rising above Politics
Likosky: Transnational Legal Processes
Likosky: Law, Infrastructure and Human Rights
Maughan & Webb: Lawyering Skills and the Legal Process
McGlynn: Families and the European Union: Law, Politics and Pluralism
Mo¬at: Trusts Law: Text and Materials
Monti: EC Competition Law
Morgan & Yeung: An Introduction to Law and Regulation, Text and Materials
Norrie: Crime, Reason and History
O™Dair: Legal Ethics
Oliver: Common Values and the Public“Private Divide
Oliver & Drewry: The Law and Parliament
Picciotto: International Business Taxation
Reed: Internet Law: Text and Materials
Richardson: Law, Process and Custody
Roberts & Palmer: Dispute Processes: ADR and the Primary Forms of Decision-
Making
Scott & Black: Cranston™s Consumers and the Law
Seneviratne: Ombudsmen: Public Services and Administrative Justice
Stapleton: Product Liability
Tamanaha: The Struggle for Law as a Means to an End
Turpin and Tomkins: British Government and the Constitution: Text and
Materials
Twining: Globalisation and Legal Theory
Twining: Rethinking Evidence
Twining & Miers: How to Do Things with Rules
Ward: A Critical Introduction to European Law
Ward: Shakespeare and Legal Imagination
Zander: Cases and Materials on the English Legal System
Zander: The Law-Making Process
Globalisation and the Western
Legal Tradition
Recurring Patterns of Law and Authority




DAV I D B . G O L D M A N
CAMBRIDGE UNIVERSITY PRESS
Cambridge, New York, Melbourne, Madrid, Cape Town, Singapore, São Paulo

Cambridge University Press
The Edinburgh Building, Cambridge CB2 8RU, UK
Published in the United States of America by Cambridge University Press, New York

www.cambridge.org
Information on this title: www.cambridge.org/9780521688499
© David B. Goldman 2007


This publication is in copyright. Subject to statutory exception and to the
provision of relevant collective licensing agreements, no reproduction of any part
may take place without the written permission of Cambridge University Press.
First published in print format 2008


ISBN-13 978-0-511-48042-3 eBook (NetLibrary)

ISBN-13 978-0-521-68849-9 paperback




Cambridge University Press has no responsibility for the persistence or accuracy
of urls for external or third-party internet websites referred to in this publication,
and does not guarantee that any content on such websites is, or will remain,
accurate or appropriate.
Contents




Preface ix

11 Introduction 1
1.1 The Western legal tradition 3
1.2 Patterns of law and authority: from the celestial to the
terrestrial 8
1.3 Grand theory in the human sciences 10
1.4 General jurisprudence 12
1.5 Danger and opportunity 16
1.6 Key issues in globalisation and legal theory 19

Part 1: Towards a Globalist Jurisprudence 23

12 Globalisation and the World Revolution 25
2.1 Grappling with globalisation 26
2.2 Globalisation and legal categories 34
2.3 Globalisation as an integrative concept 36
2.4 The sphere of containable disruption 42
2.5 The ˜World Revolution™ and legal theory 48

13 Law and authority in space and time 52
3.1 Normative foundations of a historical jurisprudence 52
3.2 The Space“Time Matrix 58
3.3 Law as culture (nomos) and reason (logos) 70
3.4 Law as autobiography in a global world 74

Part 2: A Holy Roman Empire 77

14 The original European community 79
4.1 A rhetorical ˜holy Roman empire™ 80
4.2 Tribalism 81
viii Contents


4.3 Charlemagne™s short-lived political universalism 82
4.4 Christian moral and political universalism 84
4.5 Feudal moral and political diversity 88
4.6 Lessons for a globalist jurisprudence 93

15 Universal law and the Papal Revolution 95
5.1 Apocalypse 96
5.2 The Papal Revolution 97
5.3 Papal supranationality 102
5.4 Legal education and practice in a universe of meaning 106
5.5 Threshold characteristics of the Western legal tradition 111

Part 3: State Formation and Reformation 113

16 Territorial law and the rise of the state 115
6.1 The birth of the state 115
6.2 Legal diversity and universality in the emerging European
states 117
6.3 The decline of the Christian commonwealth 128
6.4 The arrival of the state 138
6.5 Lessons for a globalist jurisprudence 142

17 The reformation of state authority 144
7.1 The neglect of the Protestant Reformations by legal theory 144
7.2 Supranationality legislation prior to the Reformations 145
7.3 From ˜Two Swords™ to single sword sovereignty 146
7.4 Protestant legal authority 151
7.5 Understanding the legislative mentality 157
7.6 Religion, Mammon and the spirit of capitalism 161
7.7 Demysti¬cation and globalist jurisprudence 167

Part 4: A Wholly Mammon Empire? 171

18 The constricted universalism of the nation-state 173
8.1 Universalism in a di¬erent guise 173
8.2 The secularisation of international law: European public
law 175
8.3 The secularisation of the economy 176
8.4 The French juristic vision 178
8.5 The struggle for European community 193
8.6 Globalist jurisprudence and the Enlightenment 194
ix Contents


19 The incomplete authority of the nation-state 196
9.1 The cultural foundation of the nation 196
9.2 Logical aspects of the modern state 202
9.3 The problematic hyphenation of the nation-state 203
9.4 Friendship and self-interest as sources of global allegiance 207
9.5 On the way to authorities di¬erently conceived 210

10 The return of universalist law: human rights and free trade 213
10.1 The quest for order in the World Revolution 214
10.2 The global hegemony of the USA 218
10.3 The preambling quest for human solidarity 220
10.4 Universal human rights 227
10.5 Free trade 240
10.6 Globalist jurisprudence, God and Mammon 247

Part 5: Competing Jurisdictions Case Studies 253

11 The twenty-first century European community 255
11.1 The reconstitution of the European community 256
11.2 EU higher laws 260
11.3 Before and beyond the nation-state: international law as
constitutional law 264
11.4 Supranationality and the ˜democratic de¬cit™ 266
11.5 Political versus cultural community 269
11.6 The global signi¬cance of the EU 271

12 International commercial law and private governance 274
12.1 The lex mercatoria 274
12.2 European contract law and codi¬cation 282
12.3 Contract and private governance 287
12.4 Private authority and globalist jurisprudence 292

13 Conclusion: what is to be done? 296
13.1 Lions and dragons: revisiting celestial and terrestrial
patterns of authority 298
13.2 Revisiting the concept of globalisation 303
13.3 Some implications for legal education and practice 304
13.4 The importance of historical consciousness today 311
13.5 Is there anything new under the sun? 315

Bibliography 317
Index 349
Preface




History shows that humans attempt, with some success, to control what was
previously uncontrollable. Now more than ever, globalisation and its techno-
logical manifestations attest to humans surprising older generations by increas-
ing their control over, for example, time and space, the atom, health and food
production. Yet globalisation has a history with roots deeper than the topsoil of
its late twentieth-century receipt into popular language. The roots penetrate to
a core reservoir of philosophical, theological and legal aspirations. Thought
about in this way, these aspirations appear never to leave us even though, tech-
nologically, humans can make such incredible advances over their physical con-
straints (with good and bad implications).
This book explores the recurring, deeper level problems of authority under-
lying law in ˜the West™, with a sense of hopefulness for the future, but also with
some anxiety about the way law is conceived and used today. The conviction
emerged during the composition of this book that a major theme of the Western
legal tradition is that humans invest their constitutions and legal discourses with
vital visions for the future which are too easily forgotten when revolutionary
urgencies are perceived to have passed. Today, it seems important to be aware of
this decadent potential of law. Rights can be proclaimed as ˜global™, ˜fundamen-
tal™ or ˜universal™ in the service of partisan objectives without thought for the
bloody signposts of their evolution. If those historical signposts are forgotten or
worse still ignored, what foundation can there be for the changes which must
come in the future? In making choices, what con¬dence can be available?
These signposts come into focus, in chapter 2, with the exploration of dual-
ities from globalisation literature such as universality and diversity, space and
time, and state sovereignty and world society. A ˜Space“Time Matrix™ is o¬ered
as a comparative model for attempting to understand historical patterns of law
and authority, by reference to interior moral and exterior political impulses,
and versions of history and visions of the future, in chapter 3. This model is then
applied to Western history in order to illuminate the development of the
Western legal tradition and its usefulness for understanding globalisation and
its challenges to the sovereign nation-state.
Chronological discussion begins with the unrest of the original European
community, in chapter 4, culminating in the Papal Revolution and the birth of
xii Globalisation and the Western Legal Tradition


the Western legal tradition around 1100, in chapter 5. An expansive notion of a
˜holy Roman empire™ is adopted to describe the God-centred norms and
government which grew amidst a universalist moral and political discourse
maintained by a supranational Catholic church, constitutionally co-ordinated
with feudal princes and their diverse realms. Territorial ideas of law and author-
ity grew away from the Christian commonwealth, leading to the idea of the
state, considered in chapter 6. Notwithstanding a universalist European legal
science, states fostered their own particular legal orders after the Protestant
Reformations, assisted by the ˜legislative mentality™, explored in chapter 7.
The emergence of a European public international law system of states in the
seventeenth century was increasingly secular. Universalist moral and political
authority decreased. By the eighteenth century, and the arrival of the liberal
political economy, it becomes possible to see the God of the loosely de¬ned
Holy Roman empire being challenged by what might be thought of as a new god
of Mammon. In the extreme, this may be associated with a ˜wholly Mammon
empire™, although the picture is more complicated. Contemporary with the
Enlightenment and the French Revolution, universal human rights and the
˜codi¬cation mentality™ have their origins, discussed in chapter 8, although con-
stricted in operation to the nation-state and its particularistic notions of
authority which are explored in chapter 9. The common human catastrophe of
the twentieth-century ˜World Revolution™ of the two world wars, we see in
chapter 10, has established human rights and free trade norms as morally and
universally attractive although politically problematic as tenets of a pervasive
new secular authority.
Two case studies of competing jurisdictions highlight, respectively, the recur-
ring natures of public authority and private authority. Publicly, the European
Union demonstrates the constitutional reversion from the European public
international law model to a modernised version of the Christian common-
wealth, centred less on God than on market values. This we see in chapter 11,
where lessons of regional and global scope are drawn from European Union
constitutionalism. Privately, international commercial law is traced historically
to illustrate the change in the underlying god-concepts and to show the histor-
ical viability of law without the state, in chapter 12. The lex mercatoria, inter-
national arbitration and the codi¬cation of European contract law are evaluated
for their elucidation of cross-border authority.
I have not been able to separate bookish tendencies from my practice as a
lawyer and concern as a human being. (These latter two attributes are not nec-
essarily mutually exclusive.) These pages endeavour to re¬‚ect more than a
purely historical or conceptual approach to law. Recommendations are pre-
sented by way of conclusion, in chapter 13, for understanding and participat-
ing in law more meaningfully in our global era through a renewed historical
consciousness.
Perhaps ironically, the space and time constraints inherent in writing a book
have led to shortcomings in a work devoted to developing a legal theory which
xiii Preface


promotes the relevance of space and time. At the outset, I should respond to two
obvious criticisms. A book about the Western legal tradition which is based
upon sources appearing only in English commits an injustice by ignoring shelves
of relevant Continental writings. For this I must plead personal linguistic limi-
tations and practical experience of only the Anglo-Australian legal system.
Fortunately there are some (but not enough) books in translation which I have
considered. Also inviting criticism is this book™s degree of generalisation in cov-
ering such vast spaces and times, a defence of which is o¬ered in chapter 1.
Because no discipline, profession or vocation alone tells the whole story about
the creation, acceptance and maintenance of authority, I have trespassed outside
my own experiences of legal education and practice. Whatever criticisms may be
deserving, I do hope that they will be vindicated in some measure by provoking
debate about the relationship of history, globalisation and law in the quest for
meaningful and just social orders at all levels.
This book has bene¬ted immensely from the support and encouragement of
the persons and institutions below, to whom I extend my deepest gratitude (of
course, without implicating them in any de¬ciencies which remain in my text).
Momentum for the thoughts in this book was sprung from a stimulating under-
graduate legal education at Macquarie University Law School in the early 1990s.
The book began as a Ph.D. thesis at the University of Sydney Faculty of Law,
supervised by Klaus A. Ziegert, later with indispensable co-supervision by
Jeremy Webber and associate supervision from Patrick Kavanagh. The law ¬rm
Deacons accommodated my need at times for ¬‚exible employment arrange-
ments. An Australian Postgraduate Award scholarship enabled me to undertake
full-time research between 1999 and 2001. William Twining has generously
commented on the revised manuscript of this book, amongst other kindnesses.
I have also bene¬ted greatly from comments and kind support at various stages
from Harold J. Berman, H. Patrick Glenn, Ian Lee, Heidi Libesman and James
Muldoon. Anonymous reviews from Cambridge University Press were also
helpful. The Julius Stone Institute of Jurisprudence at the University of Sydney
and its Law Library have extended vital research facilities and collegiality.
Cambridge University Press, particularly Finola O™Sullivan and Sin©ad
Moloney, have been patiently supportive, and provided professional produc-
tion by Richard Woodham and Wendy Gater with keen-eyed copy-editing by
Sally McCann.
My mother, Rhonda, and sister, Jane, have been encouraging of this enter-
prise and tolerant of my distractedness; in addition to which my father, Alec,
has assisted with current a¬airs observations from his many subscriptions.
Especially to my wife Yvonne, and infant sons, Benjamin and Jeremy: thank you
for your patience and for being a voice of measure for this book and in life “ it
is now time for an overdue holiday and much more play.
Christmas Eve 2006
Sydney, Australia
1

Introduction




Children often wonder why things are the way they are. Although a child
appears to enjoy what can become a never-ending game of asking ˜but why?™
after every answer given by an adult, the child is innocent enough to be dissat-
is¬ed with what the adult is forced by experience to take for granted. Children
are naturally curious and question what the adult has become accustomed
not to question. The child™s logic challenges the adult™s custom. So might the
curious social observer challenge the legal status quo. In this vein, I seek to
investigate what globalisation can teach us about law in the Western tradition,
and what the Western legal tradition can teach us about globalisation. The sub-
title of this book anticipates my conclusion that globalisation demonstrates
recurring patterns of law and authority. Recognising these patterns is crucial to
advancing law in the third millennium. To appreciate these patterns requires the
child™s sustained wonder, and the uncommon sense that the world we see today
began long, long before the adult™s lifetime.
Philosophy has its origin in simple wonderment perhaps akin to that of the
child. Such simple wonder at things being the way they are is captured in the
Ancient Greek concept of thaumazein, for example in the dialogue of Socrates
with the perceptive youth Theaetetus.1 This curiosity is a ˜playful looking about
when one™s quite immediate vital needs are satis¬ed™, which, if unchecked,
develops into the philosophy of philosophers.2 An enquiry which proceeds
explicitly under this banner may hazard being childish, especially when the
enquirer has worked long enough in the legal profession to be considered an
adult or at least a youth who knows his way about. I believe this risk to be worth
taking. The prevailing, unquestioning acceptance of law as a tool of the state
for achieving social goals with which one may or may not agree as a matter of

11
Plato, Theaetetus, in B. Jowett (ed. and trans.), The Dialogues of Plato, 5 vols. (Oxford: Oxford
University Press, 1892), vol. IV, 155c“d, p. 210: ˜[W]onder is the feeling of a philosopher, and
philosophy begins in wonder. He was not a bad genealogist who said that Iris (the messenger
of heaven) is the child of Thaumas (wonder).™
12
Edmund Husserl, ˜The Vienna Lecture: Philosophy and the Crisis of European Humanity™
appearing as Appendix 2, in The Crisis of European Sciences and Transcendental Phenomenology,
trans. David Carr (Evanston: Northwestern University Press, 1970), p. 285. Husserl was critical
of this purely theoretical attitude. His criticism can be de¬‚ected if better questions can be
formulated independently of staid answers.
2 Globalisation and the Western Legal Tradition


convenience (as opposed to being a measure, say, of virtue or redemption with
ethical signi¬cance) demands the asking of basic questions in the quest to shed
light on what is happening to law today in this time of ˜globalisation™.
Adopting the stance of the inquisitive and inadvertently philosophical child,
enquiry about law might proceed with the adult as follows (and this is not so far
from contemporary, mainstream jurisprudential thought):

Question 1: Why is something law?
Answer 1: Because the state says so.
Question 2: Why does it say so?
Answer 2: Because people must listen to the state.
Question 3: Why must they listen to the state?
Answer 3: Because the state has power over them.
Question 4: Why does the state have power over them?
Answer 4: Because the people gave it the power.
Question 5: Why did the people give it the power?
Answer 5: Because people want to live orderly lives.
Question 6: Why is this orderly?
Answer 6: Because the people said so.
Question 7: Why did they say so?
Answer 7: Because that™s what™s best for people.
Question 8: Why is that best for people?
Answer 8: Because they want to get on with their lives.
Question 9: Why do they want to get on with their lives?
Answer 9: Because they™ve got to earn money.
Question 10: Why do they want to earn money?
Answer 10: To feed children. You do want to eat, don™t you?

In this context “ and other paths of frustrating logic can be contemplated “ the
present book seeks to make a contribution. The ˜how?™ instead of ˜why?™ ques-
tion will instead be asked in the hope that better questions should lead to better
answers. ˜How is something law?™ is the better question. Although a little seman-
tic at ¬rst glance, the ˜why?™ question assumes that there is a cause. Maybe there
are causes or even one cause; however those causes would be so imbued with
ideology and contention that there could never be widespread agreement as to
those causes let alone one single cause. Rather, in asking ˜how is something
law?™, the opportunity presents to examine the meaning underlying the social
order. Social order and social change are, above all, testaments to meaning
and humans™ understandings of their relationships to their environment and
ultimate reality and meaning. The ˜how?™ question provides greater scope to
3 Introduction


appreciate law throughout history (time) and across cultures (space) even
within just one tradition “ the Western tradition “ enabling lessons to be
learned from the social manifestations of changes in patterns of thought.3
Enquiries into ˜how?™ changes occurred at di¬erent times, and in di¬erent places
and spaces, yield more helpful answers than speculation merely as to ˜why?™ they
occurred. ˜How?™ is linked to the processes of accomplishing change by refer-
ence to what can be argued to be legitimate; whereas ˜why?™ guesses at causation.
By approaching the enquiry into the modern legal condition as a study in
the achievement of authority, the temptation of a precocious child to answer the
questions of the world with little life experience can be balanced with the
answers dictated by the less critical experiences of an adult.
Detailed enquiry into the word ˜globalisation™ will proceed in chapter 2. For
the time being, the simple de¬nition of it as ˜the accelerated interconnections
amongst things that happen in the world™ will su¬ce. Globalisation presents a
timely opportunity to appreciate law for something it has always been, as the
sovereign nation-state visibly declines as the monopoly law creator and main-
tainer. A major contention of this book is that law in the West has never come
only from one place; it has never, for any extended period of time, been vali-
dated by only one system of doctrine and belief; and it has never required ter-
ritorial exclusivity for its essence. Such recurring themes will be seen in the
selective chronological analysis of the Western legal tradition. Chapter by
chapter, a secular, economics-grounded authority, which might be caricatured
as a ˜wholly Mammon empire™, emerged from the medieval Christian com-
monwealth, which can conveniently be thought of as a ˜holy Roman empire™.4


1.1 The Western legal tradition
Before exploring ˜globalisation™ in the next chapter, in the detail be¬tting such
a ubiquitous buzz word, the ˜Western legal tradition™ presents its own concep-
tual challenges. The phrase as it is used in this book derives from the subtitle of
Harold J. Berman™s ¬rst volume of Law and Revolution “ ˜The Formation of the
Western Legal Tradition™.5 Arguably the term ˜Western legal tradition™ has a life
of its own, popularised if not coined by that author.6 The term has come to carry
a set of speci¬c attributes identi¬ed by Berman, which are considered below in

13
For other approaches which take this question seriously, see Harold J. Berman, Law and
Revolution: The Formation of the Western Legal Tradition (Cambridge, MA: Harvard University
Press, 1983), pp. 336, 361; G. R. Elton, English Law in the Sixteenth and Seventeenth Century:
Reform in an Age of Change (London: Selden Society, 1979), p. 4; and William Twining,
Globalisation and Legal Theory (London: Butterworths, 2000), pp. 76“81 (proposing Karl
Llewellyn as ˜the jurist of the How™). See too chapter 3, section 3.2, pp. 58“9 below for
reference to Husserl™s philosophy of ˜how™.
14
On these nuanced notions, see chapter 4, section 4.1, pp. 80“1 below.
15
Berman, Law and Revolution.
16
John Witte Jr, ˜From Homer to Hegel: Ideas of Law and Culture in the West™ (1991) 89
Michigan Law Review 1618“36, 1619.
4 Globalisation and the Western Legal Tradition


section 1.5. The components of the term do warrant some basic elaboration in
the meantime: the words ˜Western™, ˜legal™ and ˜tradition™ may all mean di¬erent
things to di¬erent people.


1.1.1 ˜Western™
The idea of the ˜West™ is used in this book to locate, culturally, multiplex legal
phenomena occurring at a generalised level in Western Europe and in its
colonial o¬spring (for example, Australia, Canada, New Zealand and the
United States of America). Variations on the ˜West™ will be used alternately with
˜Europe™. England, whilst geographically separated from the Continent, is
undoubtedly part of this description, given its Romanist legal in¬‚uences and
reciprocal intellectual and religious contributions. R. C. van Caenegem™s ˜First
Europe™ of the eighth- and ninth-century Carolingian dynasty “ present-day
France, western Germany, Belgium, the Netherlands, Luxembourg, Switzerland,
north-east Spain and northern and papal Italy “ are clearly within the Western
and European purview.7 Ancient Greek philosophy, Jewish spirituality and
Roman law, whilst outside this territory and time frame, made their way into the
West of my concern, by way of adoption, transformation and reconciliation.8
Since the heartland of the ˜Roman™ Empire shifted to Byzantium in the fourth
century, Greece and more eastern European countries have periodically parted
ways with certain trends in the West (the main political signi¬cance of which was
the ˜Caesaropapism™ of the Orthodox Church fusion with Empire, which was
di¬erent from the Western constitutional separation of the spiritual and secular
powers). Associated Eastern European legal history is therefore not included in
my notion of the Western legal tradition. For the past 500 years, Russia has
teetered on the verge of Europe, although more lately its twentieth-century
Marxist Revolution was directly inspired by European thought,9 and its
main constitutional developments have taken place in the European part of
its territory.10 Distinctive features of Western civilisation, such as Catholicism,
the ¬fteenth-century Renaissance, the Protestant Reformation and the
Enlightenment are mostly absent from the Russian experience.11 For lack of
direct relevance to the task at hand, although not lack of importance to under-
standing law and globalisation (especially in respect of their movement to market
economies), these territories have generally been omitted from my discussion.
There were Arabic in¬‚uences on the West, particularly in philosophy (includ-
ing Aristotelian natural law) and science in the early second millennium. The
presence of Arab communities in the Mediterranean basin may have helped to

17
R. C. van Caenegem, An Historical Introduction to Western Constitutional Law (Cambridge:
8
Cambridge University Press, 1995), p. 43. Berman, Law and Revolution, p. 3.
19
See Norman Davies, Europe: A History (London: Pimlico, 1997), pp. 11“13.
10
van Caenegem, Western Constitutional Law, p. 6.
11
See Samuel Huntington, The Clash of Civilizations and the Remaking of World Order
(New York: Simon & Schuster, 1996), p. 139 and pp. 144“62 on Greece.
5 Introduction


provoke the profound Western developments in law of the late eleventh century.
The Western legal tradition may have been in¬‚uenced doctrinally in a relatively
minor way by Islam.12 Constitutionally, nonetheless, the legal science and sys-
tematisation of legal doctrines associated with the emergence of the Western
legal tradition appear to be a peculiarly Western phenomenon.


1.1.2 ˜Legal™
Enquiry into the meaning of ˜legal™ is to ask the question: ˜what is law?™ Books
on the philosophy of law and conventional jurisprudence attempt to deal with
this question. A brief statement from a number of schools of thought is all that
is required for deriving an idea of ˜legal™ for present purposes. The popular, pos-
itivist de¬nition of law by H. L. A. Hart holds law to be generally obeyed rules
of behaviour, valid according to rules of recognition (such as a constitution)
accepted by public o¬cials.13 Natural law exponent John Finnis might add to
this de¬nition the requirement that law aspire to practical reasonableness.14
These positivist and naturalist theories are both somewhat dependent upon
each other: Hart™s rule of recognition (and the similar idea of Hans Kelsen™s
Grundnorm)15 requires a naturalistic norm to establish the validity of the legal
system; whilst Finnis™s natural law is dependent upon a positive legal system
being in place. Ronald Dworkin, responding to Hart, has maintained that legal
authority comes from the history of the political community and the individ-
ual™s rights against the state.16 Roscoe Pound, a founder of sociological jurispru-
dence, viewed law as a social institution for satisfying social wants in a civilised
society.17 This latter de¬nition of law seems to encompass the present, predom-
inant legal mentality, as opposed to the more metaphysical and means-driven
(as opposed to ends-driven) philosophy of Finnis.
De¬nitions of law “ of what law is and is not “ continue almost ad in¬nitum.
As William Twining has argued, the continuities and discontinuities between
law and di¬erent types of ordering can be obscured by trying to de¬ne law too
precisely.18 It is possible in this regard to have some sympathy with Richard
12
See chapter 5, section 5.4, pp. 108“9 below.
13
See H. L. A. Hart, The Concept of Law (Oxford: Clarendon Press, 2nd edn 1994), p. 116.
14
See John Finnis, Natural Law and Natural Rights (Oxford: Clarendon Press, 1980 reprinted
1992), esp. pp. 276“7. ˜Natural law™ for Finnis can be conveyed in three ˜rather bald assertions™
encompassing: (1) practical principles for human ¬‚ourishing used by all; (2) requirements of
practical reasonableness leading to morally right and wrong acts; enabling (3) ˜a set of general
moral standards™ (p. 23).
15
There is though a signi¬cant di¬erence between the positivisms of Hart and Kelsen: Kelsen is
satis¬ed that there is a single global normative order, whereas Hart admits the possibility that
di¬erent orders can overlap with fundamental validity depending upon point of view (e.g., as
an English person or as an international diplomat). See Neil MacCormick, ˜Beyond the
Sovereign State™ (1993) 56 Modern Law Review 1“18, 8“9.
16
See generally Ronald Dworkin, Taking Rights Seriously (Cambridge, MA: Harvard University
Press, 1977).
17
See Roscoe Pound, Introduction to the Philosophy of Law (New Haven: Yale University Press,
18
1954), p. 47. Twining, Globalization and Legal Theory, p. 244.
6 Globalisation and the Western Legal Tradition


Posner™s criticism of enquiries in the manner of Hart and Dworkin, which have
attempted to de¬ne what law ˜is™ rather than what law ˜does™.19 The pitfall
should be avoided, however, of succumbing to what law ˜does™ as opposed to
the richness of what law ˜might be™ in light of that which it ˜has been™, across
cultures and through time. Legal authority may come from the state, the tribe,
the international organisation or myriad other organisations. Usually there
will be some manner of hierarchy for resolving con¬‚icts where they occur
amongst these legal systems, in a stable society. Sovereignty may then be said
to reside in this hierarchy (rather than necessarily centrally), and it may be
shared, for example, between church and state or between state and interna-
tional bodies.
Bearing in mind the historical development of the Western legal tradition in
later chapters, it should be accepted that law can be thought about as ˜norms
which, for one reason or another, achieve authority or receive allegiance™,
without the necessity for the centralised sovereign state of the theorists above.
Every society has a constitution, not necessarily written. Not every society is
a state. A neighbourhood association, tennis club, no less than the Group of
Eight, has a constitution, because ˜to be a society™, as Philip Bobbitt observes, ˜is
to be constituted in some particular way™.20 The model of law I advance in
chapter 3 aims to progress beyond stereotypical and historically contingent
ideas of law by showing the social construction of authoritative norms in terms
of space and time. The resulting reliance of law upon intuitive moral and cul-
tural allegiance together with more intellectual political and rational allegiance
will then aid the exploration of authority which continues to be constructed in
traditional ways in our time of globalisation.


1.1.3 ˜Tradition™
To have a tradition means to have a history and a framework for the future. That
is not necessarily something grandiose, abstract or tautological, such as the
satirical school motto, ˜A Heritage of Tradition™, appearing on an episode of the
television cartoon ˜The Simpsons™. According to H. Patrick Glenn, a tradition
is composed of cultural information brought from the past into the present. A
large and great tradition becomes so because it has ˜an over-arching means of
reconciling di¬erent views™.21 Attempts to close traditions (especially legal trad-
itions) from change fail. Witness God (believed to have been via Moses)22
and others including Emperor Justinian, Frederick the Great and French
19
See Richard Posner, Law and Legal Theory in England and America (Oxford: Clarendon Press,
1996), pp. 1“37.
20
Philip Bobbitt, The Shield of Achilles: War, Peace and the Course of History (London: Penguin,
2003), p. xxiii.
21
H. Patrick Glenn, Legal Traditions of the World: Sustainable Diversity in Law (Oxford: Oxford
University Press, 2nd edn 2004), pp. 13, 50.
22
Deuteronomy 4: 1“2. ˜. . . You shall not add to the word which I command you, nor take from
it . . .™ (New King James Version, NKJV).
7 Introduction


revolutionaries trying to state the law in one place, for all time.23 Tradition can
also evoke emotion, pride and inspiration “ for example, church historian
Jaroslav Pelikan de¬nes tradition as the living faith of the dead (as opposed to
traditionalism being the dead faith of the living).24 For present purposes, it is
unnecessary to adopt such evocations. It su¬ces to note that legal if not textual
traditions encompass both continuity and change.25
Eric Hobsbawm™s essay ˜Inventing Traditions™26 is frequently deployed in the
social sciences to undermine the notion of tradition. For example, he contends
that nationalism has seen some traditions invented ˜comparatively recently™,
typically involving anthems and images. To answer Hobsbawm™s notions, the
Western legal tradition is not ˜recent™; it is not based upon an ˜invariant™ vision
of social life with ˜novel situations as anathema™; nor is it pragmatically invalid.
˜Invented traditions™ are di¬erent from ˜genuine traditions™, according to
Hobsbawm, ˜where the old ways are alive™.27 On these criteria, the Western legal
tradition is energetically alive, although not without the usual challenges for
survival and in¬‚uence which all traditions face.


1.1.4 A world legal tradition?
The above should not be taken to suggest that the Western legal tradition is the
only tradition relevant to globalisation. Nor should it suggest that the Western
social experience has not su¬ered famine, injustice, pestilence, absolutism and
inhumanity, which still have the ability to reappear. The Western narrative has
not been an inexorable journey of progress ˜from Plato to NATO™.28 On the con-
trary, exciting prospects arise for a plurality of legal traditions to exist side by
side, to enrich each other through the sharing of information. The Western legal
tradition as, in e¬ect, the ¬rst legal tradition on the scene with a global reach if
not grasp in some ¬elds may have the constitutional resources to respond to this
challenge through its historical emanation from competing legal systems in
Europe. In mixing with the traditions of other cultures of greater di¬erence, it
may be transformed. In time it may then be possible and desirable to speak of a
world legal tradition.29 Any such tradition would be loose and, if at all possible,

23
Martin Krygier, ˜The Traditionality of Statutes™ (1988) 1 Ratio Juris 20“39, section 7.
24
Jaroslav Pelikan, The Vindication of Tradition: The 1983 Je¬erson Lecture in the Humanities
(New Haven: Yale University Press, 1984), p. 65.
25
See Martin Krygier, ˜Law as Tradition™ (1986) 5 Law and Philosophy 137“62, 251“4. See too
William Twining, ˜Glenn on Tradition: An Overview™ (2005) 1 Journal of Comparative Law
107“15.
26
See Eric Hobsbawm, ˜Introduction: Inventing Traditions™ in Eric Hobsbawm and Terence
Ranger (eds.), The Invention of Tradition (Cambridge: Cambridge University Press, 1983).
27
Hobsbawm, ˜Inventing Traditions™, pp. 1“13.
28
This is shown in David Gress, From Plato to NATO: The Idea of the West and its Opponents
(New York: The Free Press, 1998).
29
The major proponent of “ if not founder of “ the term ˜Western legal tradition™, welcomes this
possibility: Harold J. Berman, ˜The Western Legal Tradition in a Millennial Perspective: Past
and Future™ (2000) 60 Louisiana Law Review 739“63, Section II C, D.
8 Globalisation and the Western Legal Tradition


something of a collection of approaches to the idea of tradition.30 The Western
heritage might still be visible, amidst valuable doctrines and ways of thinking
about law from other traditions. It is to be hoped the result will be a richer con-
ception of law, less reliant upon the normative monopoly of the state in the
Western fashion of the past two or three centuries.
The prospect for something enduringly new to come from the melting pot of
cultures and traditions heralded by globalisation is not without precedent from
the Western legal tradition. Roman law, Hebrew theology and Greek philoso-
phy are often thought to be hallmarks of the Western cultural achievement. Yet
each in its historical time, taken in isolation, was antagonistic to the other. It was
only in their adoption by a later culture we know as ˜Western™ that they became
reconciled and merged in a way of living and thinking.31 A global or world legal
tradition may one day, with the appropriate attitudes, synthesise now disparate
ideas and practices into a discourse which may maintain stability whilst accom-
modating change within manageable, consistent parameters of normativity
and meaning. This may already be within the Western collective experience.
Cultural relativism and understandable fears of Western imperialism must ¬rst
be addressed with appropriate sensitivity, the pursuit of which is embarked
upon in chapter 10.


1.2 Patterns of law and authority: from the celestial to the terrestrial
Whereas once the Judeo-Christian God was the source of meaning at the core
of legality in the Western legal tradition, economics appears now to be emerg-
ing as the signi¬cant discourse. A universal discourse, be it of God or econ-
omics or human rights, or a mixture of such discourses, has been necessary to
legitimate all Western constitutional law, including decisions of legislatures. Just
how these actual sources of authority changed, yet the patterns of authority
underlying Western constitutionalism have recurred, serves to plot the trajec-
tory of my historical discussion and the questions to be asked.
As will be explored in more detail later in chapter 3, all law requires legiti-
macy from discourses of authority purporting to describe some manner of ulti-
mate reality and meaning. By way of introduction and for conceptual ease,
sources of legal authority may be illustrated by reference to the depiction of fun-
damental law in certain artworks.
In the ninth century, the Ten Commandments were portrayed, in an illustra-
tion in the Bible of Montier-Grandval,32 as being literally handed to Moses from

30
On traditions of traditions, see Krygier, ˜Traditionality™, section 7, referring to Karl Popper.
31
See Berman, Law and Revolution, p. 3. This emergence was not smooth, contrary to what
chauvinistic and perhaps nationalistic writers about the idea of ˜the West™ have sometimes
propounded, as observes Gress in Plato to NATO.
32
Moses Receives the Tables of the Law; Moses Presents Them to the People, from the Bible of
Montier-Grandval, mid-ninth century, miniature on parchment, British Museum, London, in
Sara Robbins (ed.), Law: A Treasury of Art and Literature (New York: Hugh Levin, 1990), p. 34.
9 Introduction


a hand penetrating from a heavenly ceiling with two angelic beings hanging
upside-down in the top of the scene. In the lower part of the drawing, in a sep-
arate scene, Moses is portrayed as presenting that law to the people. Papal
authority was similarly thought to be directly, divinely ordained at that time, as
will be seen in chapter 4.
In the seventeenth century, Rembrandt depicted the same biblical event very
di¬erently.33 Pensively, Moses carries the Decalogue above his forehead. He
stands in front of Mt Sinai, with realistically drawn cloud settled on the moun-
tain. There is the hint in the Rembrandt that the seventeenth-century inter-
pretation of Moses had him invested with more personal agency in the carriage
of the laws; neither God nor the angels are to be seen. In chapter 7, we shall
witness a coeval rise of a ˜legislative mentality™ possessed by less inhibited kings
freed from papal law, with a di¬erently conceived divine right and ability to
create law.
A depiction of the authority of the Declaration of the Rights of Man and
Citizen, in the late eighteenth century, features di¬erent symbols of authority.34
Two tablets, slightly resembling those carried by Rembrandt™s Moses, are set into
a Romanesque sandstone monument. A capstone features the French title of the
document, with a smaller reference attributing it to the human agency of the
National Assembly. In keeping with this agency and coeval revolutionary ideals,
a woman crouches, holding a broken shackle. Yet, to the right of the capstone,
an angel sits leaning against it, pointing above towards the Enlightenment
symbol of the all-seeing eye in the triangle “ a (perhaps Trinitarian) symbol of
God adopted on the United States Great Seal.
Further ambivalence towards the source of constitutional authority features
in a nineteenth-century oil painting. J. B. Mauzaisse depicts the French Civil
Code,35 the Code Napol©on, held by Napoleon with his pen poised. Yet this
human legal creation is surrounded with images of historical and divine
authority. Floating on a cloud sitting only marginally higher than Napoleon, an
angelic if not God-like ¬gure representing Time sits over what looks like the
Grim Reaper™s scythe, crowning Napoleon with a Roman laurel. Napoleon™s
foot rests on the outstretched wing of an eagle. He sits over further Roman
imperial imagery in the form of the senatorial mace at the top of which perches
an ornamental gold eagle. Mauzaisse ascribes divine and deeply historical sym-
bolism to Napoleon™s law. The ˜codi¬cation mentality™ of this era, associated
with the deistic belief that God had invented but abandoned the world, is
explored in chapter 8.

33
Rembrandt, Moses with the Tables of the Law, 1659, oil on canvas, Gem¤ldegalerie Staatilche
Museen Preussischer Kulturbesitz, Berlin, in Robbins, Law, p. 35.
34
Declaration of the Rights of Man and Citizen, c. 1789, Mus©e Carnavalet, Paris, in Robbins, Law,
p. 139.
35
J. B. Mauzaisse, Le Code Napol©on Coronne par le Temps (The Napoleonic Code Crowned by
Time), 1833, oil on canvas, Le Mus©e National de Château de Malmaison, Rueil, France, in
Robbins, Law, p. 201.
10 Globalisation and the Western Legal Tradition


These are the observations of no art critic or a¬cionado. The selection is
drawn from one book. No art in that book celebrates the tables of the United
Nations Charter or the treaties of the European Union. If such art exists, it
might not feature supernatural imagery. To re¬‚ect the new sources which
inspire law, one might expect to ¬nd in this art an emphasis on human agency,
industry and a¬„uence, re¬‚ecting a fundamental transformation from celestial
to terrestrial legal authority in the second millennium.36
Although the artworks described above do not amount to a scienti¬c demon-
stration of the constitution of legal authority, they literally if not artistically
illustrate the point that, at least according to these artists in their times, law is
connected to sources of authority outside contemporary time and space, and
these sources are open to change and reinterpretation. Whether law can con-
tinue to be inspired by the profoundest perceived sources of authority will
depend upon the richness of the social philosophies which inspire and are relied
upon by the legal imagination today. The conclusion to emerge in chapter 10 is
that although sources of authority may have changed, the patterns of legal
authority in the West have not. Law is dependent upon perceptions of ultimate
reality and meaning.


1.3 Grand theory in the human sciences
Attempting to write about the Western legal tradition, in the quali¬ed sense sug-
gested, might appear ambitious enough. Yet globalisation must be brought into
the analysis, too. This venture is not as overcon¬dent as it might at ¬rst seem.
The title is ˜Globalisation and the Western Legal Tradition™. One might know
something of the Western legal tradition or something of globalisation. The
˜and™ could cause some problems by introducing additional scope, although this
conjunctive word can also add much needed re¬nement. This book is neither
an exhaustive treatment of the Western legal tradition nor of globalisation. My
concern is with the Western legal tradition as it can be elucidated by reference
to globalisation, and vice versa. The Western legal tradition is explored by ref-
erence to the supra-territorial interconnections which suggest globalisation is a
challenge less radical to the legal tradition than might otherwise be expected.
Globalisation is explored for associated and recurring legal themes “ namely,
competing legal systems and jurisdictions, and universal patterns of authority
comprising cultural and rational allegiances. This underlies my guiding aim: to
investigate the phenomenon of law from my Western (speci¬cally Australian)
location and dawning third millennium time, and to enquire into its nature by
reference to its history and perhaps its most obvious challenge, globalisation.
An aspiration of this book is to present, more generally, a meaningful
framework for viewing the role of law in the social order, and the role of the
social order in constructing law. The purpose behind doing so is to attempt to

36
But see the background to the EU ¬‚ag, in chapter 11, section 11.5, p. 270 below.
11 Introduction


understand the reality of law and what constitutes law; to attempt to fathom,
where possible, the limits and potentials of attitudes towards the social order
and law; and to formulate a strategy for pursuing meaningful social order and
law.
Each chapter and many sub-headings of this book could perhaps justify a
dedicated Ph.D. or book from one of a number of social science and humani-
ties disciplines. Analytical depth has been of particular concern to historians.
Into how much depth should one delve? How many pages must be written, and
how very many more pages read, about how many numerous topics, before one
can make assertions about the discipline of study within which one writes?
Norman Davies broaches this concern in the introduction to his book Europe:
A History. He makes the critical remark that the magni¬cation of historical
detail into very short time periods ˜is an example of the modern compulsion to
know more and more about less and less™. Against this, the Annales school of
history, from 1929, attempted to encourage ˜specialists, whilst carefully tending
to their own gardens, to take the trouble to study the work of their neighbours™
in not only economics and sociology, but also psychology, demography, statis-
tics, geography, climatology, anthropology, linguistics and medical science.37
Broad enquiry must be balanced with the potential to be too eclectic with
insu¬cient supporting detail. A ˜big-picture™ approach must still, though, have
its place in the attempt to make one™s discipline relevant to contemporary devel-
opments and the wider community. In law, these connections are easy to make
and di¬cult to contain. In the preface to his thoroughgoing theoretical investi-
gation of, and recommendations for, world order, Philip Allott highlights this
plight by remarking that his 400-page book required ¬fteen years of tenured
academic appointment. It was
di¬cult to sustain psychologically, as one area of study led on to another and
there seemed no prospect of ever reaching an overall view of a kind which could
be communicated to others. It is a ramshackle castle of self-re¬‚ection which the
human mind has constructed over the last four or ¬ve thousand years . . . It is a
place of interconnecting rooms, echoing with discordant voices, rooms with
more or less arbitrary names on their half-open doors “ Theology, Metaphysics,
Epistemology, Moral Philosophy, Aesthetics, Philosophy of Science, Political
Theory, Social Theory, Economic Philosophy, Legal Philosophy, Constitutional
History, Economic History, Social History, Diplomatic History, and so on and
strangely on.38

Speci¬cally in the context of globalisation, after nearly ten years of research into
globalisation and legal theory, William Twining felt able to provide only an
˜interim report™. Fortunately, according to the job description he applies to the
jurist, he is ˜a licensed dilettante as well as a hired subversive™.39 In making

37
Davies, Europe, pp. 1, 955“6.
38
Philip Allott, Eunomia: New Order for a New World (Oxford: Oxford University Press, 1990),
39
p. xvi. Twining, Globalisation and Legal Theory, pp. 2“3, 90.
12 Globalisation and the Western Legal Tradition


references to ˜Grand Theory™ or ˜big-picture™ approaches, not only the
di¬culties40 but also the legitimacy attaching to such interdisciplinary study
within the ¬eld of law may be appreciated.
More intuitively, the present age and that which is to come are overly con-
cerned with particulars, at the cost of general themes which can bring under-
standing and ful¬lment. The particularistic mentality was captured in Aldous
Huxley™s prophetically satirical Brave New World. ˜For particulars, as every
one knows, make for virtue and happiness; generalities are intellectually neces-
sary evils. Not philosophers, but fret-sawyers and stamp collectors compose
the backbone of society™, according to Huxley™s Director of Hatcheries and
Conditioning.41 For an unchallenged, strait-jacketed, predictable society, that
may be alright. For our globally challenged society, excessive concentration
upon particulars without reference to overall, general meanings and directions
is seriously detrimental not only to personal ful¬lment and self-awareness, but
also to the economy which relies for e¬ciency upon individuals with a sense of
purpose.
As such, the present book may well fall into the category of a renascent genre
of legal scholarship, ˜general jurisprudence™.


1.4 General jurisprudence
General jurisprudence is a notion which has been around for some time. It
describes a ˜big-picture™ attempt to understand the nature of law in di¬erent
social contexts or legal systems “ that is, with some level of generality. The
concern of Aristotle to separate universally held natural law propositions
from particular positive laws varying from place to place (such as a goat and not
two sheep shall be sacri¬ced)42 was a type of general jurisprudence. The
term developed currency in the eighteenth and nineteenth centuries. In this
recent discourse, discussion begins with Jeremy Bentham.43 In England (the
Continental notion of ˜general jurisprudence™ was di¬erent),44 perhaps surpris-
ingly, in view of their ¬xation on sovereigns resembling states, John Austin45

40
In addition to the scholarly di¬culties of grand theory, many ˜postmodernists™ are cynical of
the human ability to know and to generalise. According to Quentin Skinner, that very
scepticism, when expanded, itself becomes a big picture view of the world, even if that picture
is one of disorder or the need for enquiry into the concepts themselves: Quentin Skinner,
˜Introduction: The Return of Grand Theory™ in Quentin Skinner (ed.), The Return of Grand
Theory in the Human Sciences (Cambridge: Cambridge University Press, 1985 reprinted 1997),
41
p. 3. Aldous Huxley, Brave New World [1932] (Essex: Longman Group UK, 1989), p. 2.
42
Aristotle, The Nicomachean Ethics, trans. David Ross (Oxford: Oxford University Press,
43
reprinted 1980), V, 7, p. 124. See Twining, Globalisation and Legal Theory, ch. 3.
44
A Continental sub-discipline of general jurisprudence sought to establish itself somewhere
between the abstraction of legal philosophy and the practicality of legal dogmatics, in the ¬rst
half of the twentieth century: William Twining, ˜General Jurisprudence™ in Manuel Escamilla and
Modesto Savedra (eds.), Law and Justice in a Global Society (Granada: International Association
for Philosophy of Law and Social Sociology, 2005), section IIb, referring to Van Hoecke.
45
See John Austin, The Uses of the Study of Jurisprudence (London: Weidenfeld & Nicolson, 1954).
13 Introduction


and H. L. A. Hart46 considered themselves to be involved in the project of a
general jurisprudence. That was so because they sought to lay down the princi-
ples of a theory of law which they believed was universally applicable to all law.
In the global age, with these older concepts of centralised law muddied by juris-
dictions of all shapes, sizes and locales, the need for attention to a general
jurisprudence is returning to contemporary thought and legal practice.
Three contemporary theorists have taken the challenge of general jurispru-
dence seriously. William Twining and Brian Tamanaha use the speci¬c phrase
˜general jurisprudence™ in their writings, and Harold J. Berman uses the term
˜integrative jurisprudence™ in similar terms and for the same goal of developing
a general approach to law in the context of particular theories which do not sin-
gularly capture the complexity and diversity of law. Other authors implicitly
suggest the need for a general jurisprudence, signi¬cant contenders perhaps
being Boaventura de Sousa Santos,47 Philip Allott,48 H. Patrick Glenn49 and
Niklas Luhmann.50 Tamanaha, Twining and Berman deal squarely with the
concept of a general jurisprudence for our global era.
Tamanaha develops the notion of a general jurisprudence in what he calls a
˜socio-legal positivist™ fashion, reviewing law-type phenomena and reducing
them to a universalist, ˜core concept™ of law “ namely, ˜whatever people identify
and treat through their social practices as law™.51 The excellence of his theory is
to call for investigation of whatever people identify and treat through their
social practices as law, in di¬erent ˜social arenas™,52 by reversing the usual
assumptions about law into questions which treat critically rather than take for
granted the essence and function of law.53 Arguably this answers only the ˜what?™

46
See Hart, Concept of Law. This view of the enterprise of general jurisprudence persists in Leslie
Green, ˜General Jurisprudence: A 25th Anniversary Essay™ (2005) 25 Oxford Journal of Legal
Studies 565“80.
47
See Boaventura de Sousa Santos, Toward a New Legal Common Sense: Law, Globalization and
Emancipation (London: Butterworths, 2nd edn 2002), esp. p. 371 for his map of capitalist law
into domestic law, production law, exchange law, community law, territorial (state) law and
systemic (world) law.
48
See Philip Allott, Eunomia: New Order for a New World (Oxford: Oxford University Press,
1990), for his unreferenced attempt to construct, from ¬rst principles, a new theory of law for
a peaceful and uniquely ˜world™ society; and his more orthodox The Health of Nations: Society
and Law Beyond the State (Cambridge: Cambridge University Press, 2002).
49
See Glenn, Legal Traditions, for an evaluation of structural aspects of the major legal traditions
of the world and an attempt to appreciate comparative commonalities and diversity.
50
See Niklas Luhmann, Law as a Social System, trans. K. A. Ziegert (Oxford: Oxford University
Press, 2004), for perhaps the most advanced scienti¬c attempt to describe and understand the
phenomenon of law in modern societies.
51
Brian Z. Tamanaha, A General Jurisprudence of Law and Society (Oxford: Oxford University
Press, 2001), p. 166. Social systems speci¬cally accepted by Tamanaha as law are state law,
customary law, religious law, international law, transnational law, indigenous law and natural
law (pp. 224“30).
52
Tamanaha, General Jurisprudence, pp. 206“8. The social arena is used to identify boundaries
for the study of a particular legal enquiry, such as a nation-state, a village, a local business
community, the international merchant community, etc.
53
Tamanaha, General Jurisprudence, p. 231.
14 Globalisation and the Western Legal Tradition


question “ that is, what law is. That approach may be useful for those theorists
or practitioners who are happy to adopt a broad view of law and who feel
challenged to compare the natures of di¬erent legal orders by reference to
assumed qualities such as law™s social mirroring54 and social control functions.
Tamanaha™s theory does little, however, to illuminate how it is that the law
achieves its authority and e¬ectiveness through the changing tides of time.
Twining™s notion of a general jurisprudence calls for a more open enquiry
without the universalist ambition. Inviting a ˜broader approach to law™,55 he is
concerned ˜about the health of the institutionalized discipline of law for the next
ten to twenty years in the face of “globalization” ™.56 Twining seeks to ˜enlarge the
discipline™.57 His general jurisprudence may be interpreted as a caution against
the precipitate use of the term ˜global jurisprudence™ and ˜global™ especially.
˜[W]henever we hear a g-word we should pause and ask: is it being used pre-
cisely, or in this context is it exaggerated, super¬cial, misleading, simplistic, eth-
nocentric, false or just plain meaningless?™58 Similarly, caution is required before
using the word ˜universal™, which all too often will re¬‚ect a particular way of
thinking, neither universally held nor applicable throughout the world. For
present purposes, of further signi¬cance is Twining™s call for a normative and
historical jurisprudence to add to our understanding, inviting consideration of
the construction of law and authority over time.
Berman™s jurisprudence appears to o¬er a viable way forward in this latter
respect, presciently responding to Twining™s later call. Berman™s notion of an
integrative jurisprudence59 infuses a normative agenda into the study and prac-
tice of law through the programme of ˜historical jurisprudence™, to be recon-
ciled with the positive law and natural law schools which maintained a virtual
duopoly over twentieth-century legal theory. Berman™s suggestive model for a
general jurisprudence is a corollary of his excursus into Western legal history.60
A purpose of the present book is to contribute to the current discourse of
general jurisprudence by attempting to build a normatively and historically rich
general jurisprudence relevant to the global age. That it purports to do so pri-
marily by comparing cultures and orders within the Western legal tradition,

54
That is, the way law re¬‚ects (or is supposed to re¬‚ect) the consensus of society.
55
Twining, Globalisation and Legal Theory, p. 36; ˜A Post-Westphalian Conception of Law™ (2003)
37 Law & Society Review 199“257, 202.
56
See William Twining, ˜Reviving General Jurisprudence™ in Michael Likosky (ed.), Transnational
Legal Processes (London: Butterworths, 2002), p. 4; Globalisation and Legal Theory, pp. 175,
243.
57
William Twining, Law in Context: Enlarging a Discipline (Oxford: Clarendon Press, 1997).
58
Twining, ˜General Jurisprudence™, section IIa; and see his ˜Globalisation and Comparative Law™
in David Nelkin and Elsin Orucu (eds.), Comparative Law: A Hart Handbook (Oxford: Hart
Publishing, forthcoming).
59
See Harold J. Berman, Faith and Order: The Reconciliation of Law and Religion (Atlanta:
Scholars Press, 1993), ch. 13.
60
See Berman, Law and Revolution; and more recently, his Law and Revolution, II: the Impact of
the Protestant Reformations on the Western Legal Tradition (Cambridge, MA: Harvard
University Press, 2003).
15 Introduction


across time, still quali¬es it as a work of general jurisprudence.61 Marginalised
and forgotten texts and ideas in the Western legal tradition have lessons to teach
our globalist age and mentality.
Immediately, I must qualify my use of words such as ˜global™ and ˜universal™.
Twining™s circumspection about using such words is justi¬ed. Often the word
˜global™ is used to describe processes which occur at multiple local or regional
levels. Despite straddling territories if not continents, such allegedly ˜global™
processes may a¬ect certain types of people in a society and leave other societies
out completely. Literally, such processes are not ˜global™ in the sense of touching
everyone or even nearly everyone on the globe. Similarly, ˜universal™ norms
are often universal merely at regional levels or amongst particular peoples.
Imprecision and exaggeration characteristically accompany these ˜u-words™ and
˜g-words™. My own preference is to accept that, in popular parlance, these words
are misused. A more readily comprehensible response requires using the words
under dispute but using them more sensitively. With this intention, an ˜-ist™
su¬x is adopted in this book.62 This is to suggest tendencies or purport rather
than an absolute state of a¬airs connoted by the words ˜global™ and ˜universal™.
In each chapter, the prospects for ˜universalist™ and ˜globalist™ norms are evalu-
ated in di¬erent places and times. I believe it is helpful to consider these
prospects, with appropriate sensitivity and realism. Provided that diversity and
the possibilities for meaningful norm-making at the levels most a¬ected by
those norms are not precluded, improved peace and social ¬‚ourishing are a
prospect of learning to think along universalist and globalist lines. Looking in
this manner beyond the immediacy of oneself and one™s immediate society with
a view to the ˜welfare of the world™ or ˜humanity in general™ is not foreign to
Western social and legal history, as we shall see. There is much still to be done,
to be pursued with alertness to the associated errors (at least to the modern
mind) of the past such as those associated with imperialism, colonisation and
intolerance. Heightened and new sensitivities are required. That is why this
book resorts to terms such as ˜globalist™, ˜universalist™ and ˜purportedly global™,
and dares only to venture a quest ˜towards a globalist jurisprudence™ rather than
to have the hubris to write of an unquali¬ed ˜global jurisprudence™.
So may one wonder what options there are for settling tensions between
global concerns such as human rights, free trade, poverty, overproduction of
consumer items, terrorism and American imperialism. Beholden to that wonder
is the possibility that something bigger than we can imagine today will settle
these tensions characteristic of the globalising society, through a reconciling

61
On the permissibility of these criteria, see Twining, ˜General Jurisprudence™, sections IIb
and III.
62
Grammatically, I arrive at ˜globalist™ and ˜universalist™ as agent-nouns (used adjectivally) from
the verbs ˜globalise™ and ˜universalise™, suggesting the attempt or purport of the act of
globalising and universalising, falling short of the achievement of the actual end of this action.
Such a use of the word ˜globalist™ is consistent with its de¬nition in The Shorter Oxford English
Dictionary (5th edn), as ˜advocating a global approach to economic etc. issues™ [my italics].
16 Globalisation and the Western Legal Tradition


discourse of world traditions and experiences.63 That will not come through
people thinking only of their current political and economic needs in the
context of their current ethical and rational predilections towards what is right
and wrong. It will come only through speaking about all of these things, with
other peoples, in the context of a history which gives meaning to all of these pre-
cepts with the possibility for their reinterpretation to meet the present and
future needs of our interconnected age.


1.5 Danger and opportunity
In 1983, Harold Berman wrote of his belief that the Western legal tradition was
experiencing a crisis. In his opinion, only four out of the ten characteristics of
the Western legal tradition remained:
1 law is di¬erent from politics and religion;
2 law is entrusted to a profession with its own discipline;
3 law is still systematised and conceptualised; and
4 this legal learning is something outside the laws on paper which allow the
legal institutions and law to be understood.64
Despite these continuations, the other six characteristics of the tradition were
no longer thought by Berman to remain:
5 the hierarchy of sources of law has been lost (that is, the con¬‚ict has been
lost, for example, between feudal, royal, manorial, urban and canon law and
with it the possibility of a constitutional synthesis of a solution for a given
situation involving a plurality of jurisdictions), replaced by anti-formal
techniques to justify rules and ˜a new kind of cynicism™ about legal discourse;
6 there has been a weakening in the belief that law is subject to ongoing devel-
opment with the emergence of generations, such that the development of
law is now seen as being simply ideological;
7 changes in the law, both historically and in the present, are thought to be
due to pressure from forces outside the law;
8 in place of the distinction between law and politics, law is viewed as an
instrument of the state and politics;
9 instead of a plurality of jurisdictions more recently including independent
professions and trades but formerly including, for example, canon and
urban law, there is a programme of swallowing up jurisdictions ˜in a single
central program of legislation and administrative regulation™; and
10 rather than law being reinterpreted and adapted to the future during times
of revolution or great social change, there is the view that a new political
regime spawned by revolution brings in a wholly new law, or old forms with
new content.65

63
Insights into this project, and the di¬culties it faces, are to found in Glenn, Legal Traditions.
64 65
Berman, Law and Revolution, p. 37. Berman, Law and Revolution, pp. 38“9.
17 Introduction


Perhaps this is overly pessimistic. In the attempt to ¬nd a way out of the present
predicament, Berman confessed his existential need to look back on the fading
Western legal tradition like a drowning man seeing his life ¬‚ash before his eyes,
whilst not bemoaning the changes. Somewhat ambivalently he admitted that
the changes may even be ˜a good thing™, posing the question ˜how do we go
forward?™66 In later publications his position is clearer. The ˜crisis™ of the Western
legal tradition is a crisis in the true, translatable sense of the word. For the
Greeks, krisis means a choosing, a time when choices must be made; in Chinese,
˜crisis™ is described as wei-ji “ danger and opportunity.67
The choice for the individual is primarily one of attitude. How law is thought
about and talked about will be crucial. The broad lesson I shall attempt to draw
from the Western legal tradition for guidance value is the historical reliance of
law upon logical and cultural allegiance for e¬ectiveness and meaning amidst
changing circumstances. My aim, perhaps similar to that of Berman, is to
demonstrate that a consciousness of legal and social history is the only way to
avoid relegating law to the anomie of faceless, ends-driven, majoritarian polit-
ics. Law should not just be thought of as a tool for getting things done “ partic-
ularly during a time of great change.68
Many will argue over the particular lessons of history. In so doing, however,
the belief in the guidance value of history must be conceded as a ˜good thing™,
the more so if the context is the attempt to understand an analogous but
uncharted present state of a¬airs. The present time is seeing to the performance
of modern adaptations of scenes from medieval constitutional theatre which
premiered at the formation of the Western legal tradition almost a millennium
ago. Perhaps we can ˜go forward™ by revisiting some of the points of Berman™s
characterisation of the Western legal tradition.
5 & 9 It is now apparent that the number of viable jurisdictions is increasing,
and the purported nation-state monopoly of authoritative norms is
declining. The laws of the European Union, international trade laws
including the World Trade Organization and human rights committees
(both national and international) attest to this.
6 Arguably law has always been subject to criticism as an ideological institu-
tion, if ˜ideology™ is understood to mean the dominant, self-perpetuating
social reality.69 Those grounds in other times have been theological, philo-
sophical and, perhaps characteristic of the twentieth century, political

66 67
Ibid., pp. v“vi. Berman, ˜Integrative Jurisprudence™, p. 309.
68
˜A social reality in which law is seen, not as the source, the limit and the judge of social power
but as merely an incidental by-product of social power, is an illegitimate social reality™: Allott,
Health of Nations, [3.52]. An instrumentalist conception of law discredits law by associating it
with special interests. It runs the risk of franchising judges to decide cases according to
personally desired objectives, particularly in the US: see Brian Z. Tamanaha, Law as a Means to
an End: Threat to the Rule of Law (Cambridge: Cambridge University Press, 2006).
69
This notion of ideology is derived from Valerie Kerruish, Jurisprudence as Ideology (London:
Routledge, 1991), pp. 34“42.
18 Globalisation and the Western Legal Tradition


(liberalism versus communism). Western revolutionaries always attack the
ideology of the predecessor. That law may now be thought to operate in
the service of free trade or human rights may re¬‚ect, as is suggested later
in this book, an emerging secular theology of our time with its own cul-
tural resources and complexities. The challenge is to explore those com-
plexities, and to keep attempting to reconcile them to an older legal
discourse.
7 & 8 The perception that legal change occurs, for example, through politics as
a result of pressure from outside the law, does indeed appear to underes-
timate the case-based innovation e¬ected by judges in the common law
fashion (sometimes referred to as judicial activism). Even judges are,
though, responding to outside arguments about norms which are put to
them. The outside arguments are ¬ltered by advocates into legal termi-
nology from their source in the outside world, in which change is
ongoing. At revolutionary times, law is forced to take on the concerns
which cannot be dissipated outside the ¬lter of the court process or
through remedial legislation. Nonetheless, there appears to be an
increasing trend for law and legal process to be viewed by the government
executive as a means to a political end, with traditional separation of
powers doctrine under challenge.
10 The popular perception that laws are simply uprooted and replaced at
times of revolution remains current. Although thoughts of revolution are
far from the minds of most individuals born in common law countries,
occasional remarks by professional colleagues to me about the topic of
this book have drawn comments along the lines of ˜I think we are headed
for a world government with a world legal system™. The singularity of
such a government and legal system should stretch the bounds of
credulity for at least another two centuries. Such an overthrow of law
appears unlikely.
Where they touch on globalisation, these themes will be explored in later chap-
ters by reference to the historical precedents of interconnected and non-state
societies with their underlying discourses of authority.
Returning to his question ˜how do we go forward?™, the solution pro¬ered by
Berman is to integrate the theories of positive law and natural law (mentioned
above in section 1.1.2), and to add a third school: that of historical jurisprudence,
which instils ˜the national character, the culture, and the historical ideals and
traditions of the people or society whose law it is™.70 This consciousness need not
be national, but it must be felt as a matter of group attachment to something
outside oneself. Historical consciousness is crucial to the enterprise of maintain-
ing and improving upon a sense of legality which attracts allegiance through,
for example, an appreciation of parliamentary sovereignty as opposed to royal
tyranny, or a common horror such as the World Revolution of the two world wars.
70
Berman, ˜Integrative Jurisprudence™, p. 290.
19 Introduction


In chapter 3, I will suggest a revised analytical scheme to apply to the task of
understanding authority and formulating better law. Notions of positive law,
natural law and historical jurisprudence will be considered in the more histor-
ically and socially transportable terms of ˜custom™ (nomos) and ˜reason™ (logos).
Possibly these terms are transportable across traditions, too. To be e¬ective, law
must be able to appeal from these foundations to the individual, morally and
culturally (nomos), as well as exert a more objective impulsion supported by
reason, maintained politically (logos). This is the science of law, or ˜nomology™,
as it is obscurely known. This ˜Space“Time Matrix™ will be used in the balance
of the book to explore the patterns of law and authority in the millennium of
the Western legal tradition.


1.6 Key issues in globalisation and legal theory
Although historical parallels do not prove anything of themselves, they will aid
investigation into the extent to which jurisprudential thought needs to be
amended to accommodate globalisation and the normative challenges of tech-
nology. To advance the general jurisprudence foreshadowed in the foregoing
pages to understand law in the world today, the following signal themes will be
employed to evaluate the recurring patterns of law and authority in the second
millennium in the context of the historical changes.

• Paradigmatic aspects of the Western legal tradition, such as competing juris-
dictions and transnational legal science, are recurring. Twentieth-century
technology and industry have thrown the state back into the boxing ring with
other jurisdictions. Law and legal authority have never, in the West, come
from only one place, contrary to the popular ¬xation on the state as the only
legitimate source of either.
• The modern ¬xation upon law as a political tool of the state for achieving present
social goals, without necessarily and consciously deferring to deeper principles
of ultimate reality and meaning, is a historically contingent trend. It is derivable
particularly from the twentieth century and the focus on legislation which
emerged. This instrumentalist tradition is a symptom of the modern fallacy in
the point above (that law comes from one place “ the state). For example, human
rights and free-trade developments can be viewed as novel universalistic, natural
law discourses with functional commonalities shared with medieval religious
natural law. Reference to these discourses in law demonstrates the social require-
ment to ground law in an authority subject to sophisticated claims for legitimacy
expressed in a legal science. Legal norms and social authority do not come from
one place. Although a proposition may ultimately be ˜legal™ or ˜illegal™, it will be
so by reference to di¬erent legal or normative systems which compete for prior-
ity in the prevailing discourse of authoritative norms.
• Commonly perceived themes in the globalisation literature, such as univer-
sality versus particularity and diversity, space and time, sovereignty versus
20 Globalisation and the Western Legal Tradition


world society, and cultural forms of community versus political community,
are manifested in the history of Western law and authority. These patterns
may be said to be recurring. In older times, ˜empire™ was the preferred term or
concept for purporting to maintain if not impose order of geographical mag-
nitude amidst diversity. In more recent times, the idea of ˜union™ pre-
dominates. This is demonstrated, for example, by the appellations ˜United
Kingdom of Great Britain and Northern Ireland™, ˜United States of America™
and, most recently, European Union. Easily forgotten, semantically, is that the
oldest surviving Western political institution is the Roman Catholic (or
Universal) Church.
• Thinking about the authority of law in terms of the Space“Time Matrix
expounded in chapter 3 (interior, culturally acquired morality versus exterior,
politically coerced rationality; and retrospection versus radicalism as hori-
zons of social thought) enables us to contemplate, comparatively, the inade-
quacies and bene¬ts of di¬erent approaches to the authority of law at
di¬erent times. The chief pattern of authority is the requirement to have a
core legitimating principle at the centre of the normative system. At the
beginning of the Western legal tradition in the late eleventh century, God was
at the centre of legitimacy (and markets dispersed), whereas today, markets
are towards the centre of legitimacy (and spiritual communities dispersed).
The in¬‚exion of this pattern occurred about the time of the Protestant
Reformations.
• Peace and co-operation at the national and international levels will not be

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