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13.1.4 The rise of world society
Baldly stated, the nation-state and its economics facilitated the killing of about
150 million people in conditions of terror associated with the World Revolution
of the two world wars. The natural environment did not fare much better. This
trauma gave rise to the major international or ˜global™ treaties of the twentieth
century such as those constituting the European Union, the United Nations and
the General Agreement on Tari¬s and Trade. Chief vehicles of globalisation “
computer technology, mass media and jet transportation “ are all implicated in
the twentieth-century World Revolution.
Akin to the manner in which the social trauma of continental proportions in
the late eleventh century established a world society of Christendom, nowa-
days a world society appears to be developing, with tentative laws although
an emerging moral conscience. That is not, however, to suggest a single, all-
encompassing society, but rather an alternative society or societies in conversa-
tion with other societies at the sub-global level. The major world treaties must
not be treated as mere obstacles to, or instruments of, social goals in the present.
To endure, this world society must become conscious of its history, its origins,
its purposes.10 Such as it may be, our world society emerged; it was not just
created and imposed in the twentieth century. The twentieth century Universal
Declaration of Human Rights (in chapter 10) required the eighteenth-century
Declaration of the Rights of Man and Citizen (in chapter 8) which required the

10
See Philip Allott, The Health of Nations: Society and Law Beyond the State (Cambridge:
Cambridge University Press, 2002), ch. 11.
302 Globalisation and the Western Legal Tradition


eleventh-century advent of All Souls™ Day (in chapter 5), and many intervening
developments. All souls had to be equal before all men could be equal before all
humans could be equal, in the West.
Is obedience to globalist laws and norms self-propelled, as, for example,
feudal law or canon law was part of the medieval psychology? My own sense is
that allegiance to di¬erent systems comes increasingly naturally for di¬erent
people,11 and that the dispassionate, political approach to law is slowly ceding
to a more moral approach in some realms even if breaches by state governments
continue. Growing global contests between individuals, non-government
organisations and the nation-state attest to this. A polarisation seems to be
ensuing between those who are open to the idea of world society versus those
who cannot see past state sovereignty. Some people are attracted or open to the
norms of the world society through, for example, treaties received in principle,
although not necessarily as, state law, which provide for human, environmen-
tal or free-trade rights. Others may suddenly ¬nd themselves allied with the
legitimacy of the nation-state. There are progressive and reactionary sensibil-
ities which attach to both positions, depending upon the subject-matter of the
contested norms and the particular views of history and visions of the future
held by the onlookers.
Such competitions between jurisdictions vividly recall a medieval precedent.
They venture further than the competing jurisdictions which underlie federally
organised states. They testify to competing systems of norms between territor-
ial societies and societies which exist beyond territorial boundaries. Like a
medieval peasant seeking refuge in a town, choosing urban law over manorial
law, an individual now might look to international human rights or free-trade
law to vindicate a freedom denied by the domestic system of law. Perhaps more
people are not now pursuing self-propelled freedom like lions. Maybe there are
simply more dragons or lawgivers for the lion to choose from. Either way, the
necessary consequence is the articulation of norms and the need to locate
oneself meaningfully in the world. Competitions between jurisdictions may
well be inherently good,12 if the jurisdictions are compelled to justify their
norms and to reconcile con¬‚ict also by reference to other ways of looking at
things.
In the West, a new, universalist, secular religious authority increasingly occu-
pies the place once occupied by the Judeo-Christian God in legitimating the
laws of competing jurisdictions. These new, universalist norms embody a
tension between human rights and free trade. At the same time, the modern

11
Perhaps this is more true in respect of deeper or more fundamental laws such as laws of war
and human rights; and less so for venial laws such as motor tra¬c laws and other collective
laws impinging upon individual convenience (e.g., water or waste restrictions).
12
It is on this basis that I believe the most e¬ective arguments are to be made against European
civil codi¬cation and tendencies towards centralisation. See e.g. Pierre Legrand, ˜Against a
European Civil Code™ (1997) 60 Modern Law Review 44“63, arguing that European
˜plurijurality™ is under threat from administrative convenience and fear.
303 Conclusion: what is to be done?


incarnations of medieval religious beliefs remain important to the conscious-
ness of the legislators. Occasionally, political leaders give voice to their religious
convictions and constituencies. For the most part, though, religious, moralistic
inputs into politics are concentrated in politicians™ private campaigns for elec-
tion and later reconstituted publicly into politically safe, rationalistic language
and authority.
Before we were able to evaluate the constitutional signi¬cance and antece-
dents of globalisation, we had to arrive at a notion of ˜globalisation™. That
important notion deserves re¬‚ection.


13.2 Revisiting the concept of globalisation
The idea of globalisation we began with was ultimately the idea of globalisation
which sustained the enquiry in this book, after exploring more elaborate
notions in chapter 2. The relatively simple notion retained was of globalisation
as the accelerated interconnections amongst things that happen in the world.
Some features accompany this idea of globalisation.
Signi¬cantly, globalisation is a process. It is not a thing. One may touch glob-
alisation no more than one may touch evolution or entropy. No single descrip-
tion or cause-and-e¬ect phenomenon de¬nes globalisation as such. John
Ralston Saul, for example, has promoted the idea that globalisation is dead.13
What he is talking about when he uses the word globalisation is a very narrow
concept of economic globalisation (the ˜death™ perhaps being just a prematurely
pronounced sleep). Of course, there is no monopoly on the meaning of a word
such as globalisation. All usages considered, globalisation means much more
than just economic rationalism, although it does comprehend Saul™s de¬nition
of globalisation as a fraction of the total signi¬cance of the idea.
I have maintained that globalisation can only be grasped if it is thought about
in association with a wide variety of social issues, such as, for example, inter-
national trade and capitalism, diverse cultures facing challenge from universal-
ist sources and vice versa, and technology altering the way we relate to space and
time. All of these phenomena have demonstrated, since the latter twentieth
century, remarkable energies which seem to be related. In this sense, globalisa-
tion, whilst having a long historical background as old as merchants and reli-
gious proselytisers, appears to be a process which deserves to be recognised and
de¬ned by the experiences of the latter half of the twentieth century and beyond
into the twenty-¬rst century, spawned by the World Revolution.
If this is world domination, then it is world domination by a dawning con-
sciousness and energised social network and information economy. As we saw
in chapter 1 with reference to H. Patrick Glenn™s work, a tradition is made up of
information.14 The central place of this information“tradition interchange

13
John Ralston Saul, The Collapse of Globalism and the Reinvention of the World (Camberwell:
14
Penguin Viking, 2005). See ch. 1, section 1.1.3, pp. 6“7 above.
304 Globalisation and the Western Legal Tradition


underlying globalisation is captured in Manuel Castells™ focal point “ ˜the infor-
mational economy™ “ for his three-volume foray into the global condition. For
Castells, the economy which has emerged since the 1970s is informational
because ˜the productivity and competitiveness of units or agents in this
economy . . . fundamentally depend upon their capacity to generate, process,
and apply e¬ciently knowledge-based information™.15 Globalisation, then, as
the accelerated interconnections amongst things that happen in the world, is
essentially about the exploding nexus of alternative traditions and information
from those traditions. This information includes all of the logical, cultural,
political and moral references which have dynamically interacted to make this
era of the West so prone to change in all aspects of human endeavour.
By considering globalisation in these informational terms which emphasise
the mobility of tradition, we can comprehend why globalisation can be per-
ceived to represent world domination and be threatening to established cul-
tures. Universalised Western values re¬‚ected, for example, in World Bank
lending criteria to the Third World, can be characterised on the Time Axis of
the Space“Time Matrix as the imposition of a Western economic vision of the
future over less industrialised, more conservative visions. On the Space Axis,
this would suggest an impersonal, exterior political vision unevenly superim-
posed on the cultural, moral bonds of an agrarian or traditional society.
Information ¬‚ows and dynamics embodying and re¬‚ecting competing norms
are therefore important for understanding globalisation. Those ¬‚ows are
uneven, and it is that unevenness which gives rise, understandably, to the ¬xa-
tion by many observers on domination and imperialism as the signal charac-
teristics of globalisation. Globalisation is, however, more than just domination.
There are pluralistic and emancipatory tendencies in the process of globalisa-
tion too, such as the increasing recognition of marginalised people. Depending
upon the universalist values of globalisation chosen for discussion, they are not
all intrinsically Western, such as the prohibition, in principle, of murder, rape
and torture.


13.3 Some implications for legal education and practice
Earlier I suggested, using Nietzsche™s simile, that humans are like lions and the
lawmaker (typically the state) is like a dragon. Ideally, the lawmaking dragons
should breathe less ¬re, and humans as leonine creatures should be as free as
their endowments would allow them whilst living in a stable social order. To this
end, law- and norm-making processes should incorporate references from trad-
itions which appeal to the individual at the moral level and cause the individ-
ual to be normatively self-propelled. The turn which globalisation signals, away
from the particular norms of the nation-state to more universalist principles,

15
Manuel Castells, The Information Age: Economy, Society and Culture, 3 vols. (Malden: Blackwell
Publishers, 1997), vol. I, The Rise of the Network Society, p. 66.
305 Conclusion: what is to be done?


across traditions, should be watched with optimism. This should be coupled
with a willingness to debate the universality of the norms in question by way of
philosophically engaging them with the norms allied to one™s innermost per-
sonal attitudes. How might this be pursued in practice, today?
Much can, and is, being written about legal education and globalisation.
Some issues have been touched upon in previous chapters of this book, such as
mutual recognition of quali¬cations from other states and the cosmopolitanism
of student populations and subject o¬erings. A pattern of law generation and
maintenance is recurring. Just as we saw a medieval European, universalistic
legal science generated by a transportable legal quali¬cation from one of many
law schools teaching Roman and canon law, now too we see a common univer-
sity socialisation of global proportions. A possible ˜Americanisation™ of legal
practice looms. For example, Japan has ˜one of the strongest concentrations of
Harvard Law School alumni . . . mainly in the bureaucratic and ¬nancial
¬elds™.16 It has even been suggested that a reception of American law as ius
commune is occurring, akin to the European reception of Roman law ius
commune in the late middle ages.17 Cases from foreign jurisdictions are cited
increasingly in domestic jurisdictions, especially at the appellate level.
All of these local diversities interacting with universalist norms can be
focused with clarity into a vision for a socially inclusive approach to legal edu-
cation and law.


13.3.1 The contingency of law and justice
If a society is to ¬‚ourish in its ordering and quest for improvement, education
in general, and legal education in particular, must rediscover their former, com-
bined moral and political relevance to the psychology of identity. Law as it is
taught must be presented in lectures, tutorials and texts in such a way that it is
capable of appealing to the individual in all four dimensions of the Space“Time
Matrix. Take a very general example of norms of native title law. What is the
political signi¬cance of those norms? What sorts of moral and cultural prob-
lems might individuals have with those norms? What sort of view of history are
those norms based upon? What do they mean for the future? By appreciating
that di¬erent individuals and corporate groups may have very di¬erent (and
understandable) responses to these questions, the way is opened not only to
participating in that discourse but also to learning the complexities of that doc-
trinal area of law and practising it more e¬ectively. The evolution of this law,
and much law in general, is the story of lawyers, academics, legislators, litigants
and activists opening the leaves of the law reports and statute-books to di¬erent
perspectives and allegiances. We have seen this in our discussion of law as a
16
Yves Dezalay and Bryant Garth, ˜Law, Lawyers and Social Capital: “Rule of Law” versus
Relational Capitalism™ (1997) 6 Social & Legal Studies 109“41, 129“31.
17
Wolfgang Wiegand, ˜The Reception of American Law in Europe™ (1991) 39 American Journal of
Comparative Law 229“48.
306 Globalisation and the Western Legal Tradition


Zenonic paradox of motion. Just as the still snapshot of an arrow in ¬‚ight does
not describe the arrow, law too is always moving. When we try to state the law
in the present or reduce law to some simple proposition, we are really seeing
something out of its context.
Returning to our proposition in chapter 3 that law does not really exist in the
present, and that enquiry into law will do well to include what ˜is not™ law, the
notion of dissent emerges as a philosophical strength.18 It is crucial to the very
notion of a ˜general jurisprudence™.19 Common law legal education underplays
dissenting judgments. Fortunately, Continental legal education, at least in
Germany, rigorously teaches ˜minority views™ in the highly in¬‚uential academic
discourse.20 Alas, common law dissenting judgments tend to be taught as the
˜wrong™ approach to a legal problem. Law actually comprises the majority and
the minority views in a state of ¬‚ux, sometimes to the point of utter obscurity.21
Yet from this confusion, a treatment for the current malaise a¬ecting law and
contemporary legal education can be proposed. The multiplicity of norms
which vie for legal authority, sometimes successfully, at other times in persua-
sive dissents, can be used to speak to the multiplicity of students with their mul-
tiplex allegiances. Dissenting opinions are conducive to dialogue and may even
inspire students, in e¬ect calling them by name to see themselves in what they
study. History shows that minority views today may be the majority views of
tomorrow. This should give some hope to those who feel their norms are
unrecognised in the dominant law of the state. To this extent, law may be eman-
cipatory and not just regulatory.22
The importance of connecting legal education to the moral, interior orienta-
tion of the human is captured by Boaventura de Sousa Santos: ˜each great period
of intellectual history is characterized by a speci¬c close relationship between
subjectivity and knowledge™.23 Slavery and child labour have been overturned
18
See e.g. Cass R. Sunstein, Why Societies Need Dissent (Cambridge, MA: Harvard University
Press, 2003); David Daube, ˜Dissent in Bible and Talmud™ (1971) 59 California Law Review
784“94. Dissent is often required and is frequently endemic in the most sacred of texts. The
diversity of biblical interpretations and emphases underlying the changing constitutions of
society in parts 2, 3 and 4 of this book attest to the revolutionary progress which is built upon
dissent.
19
Jeremy Waldron, Law and Disagreement (Oxford: Clarendon Press, 1999), pp. 6“8.
20
See Stefan Vogenauer, ˜An Empire of Light? II: Learning and Lawmaking in Germany Today™
(2006) 26 Oxford Journal of Legal Studies 627“63.
21
It can happen that the majority orders of an appellate court can be based upon con¬‚icting
statements of principle which in fact amount to dissenting judgments within the majority: see
e.g. Northern Sandblasting v Harris (1997) 188 CLR 313.
22
Cf. Boaventura de Sousa Santos, Toward a New Legal Common Sense: Law, Globalization and
Emancipation (London: Butterworths, 2nd edn 2002), ch. 9; Heidi Libesman, ˜Between
Modernity and Postmodernity™ (2004) 16 Yale Journal of Law and the Humanities 413“23,
421“3, critiquing Santos™s dismissal of liberal and modern constitutionalism. According to
Australian popular music icon, social activist, now politician and law graduate Peter Garrett,
˜know that a law degree equips you in ways unimaginable to do anything that really stirs your
heart™: NSW Young Lawyers, Debrief (February 2002).
23
Boaventura de Sousa Santos, Toward a New Common Sense: Law, Science and Politics in the
Paradigmatic Transition (New York: Routledge, 1st edn 1995), p. 489.
307 Conclusion: what is to be done?


by views of law born on the fringe,24 in this dimension of interior, subjective,
morally compelled struggle and experience of oppression. Recognition of the
historical revelation of justice through social activism, judicial determinations
and multidisciplinary academic writings on social values will do better than the
pretended knowledge of justice at a particular point in time.25 That pretension
epitomises the common law fetish of modern legal thought and education for
majority judgments and statements of what the law ˜is™. That fetish is mis-
guided. It is to misunderstand, profoundly, the social construction of justice
and law. After all, it is conceivable that some things which many people take for
granted today will be harshly judged by future generations. In one thousand
years, ˜civilised society™ might be vegetarian and dismissive of our carnivorous
society, as we are dismissive of slavery, child labour, apartheid, the selling of
holy relics, trial by ordeal and death sports in the Colosseum. Law in the
Western tradition has been alive to (if not animated by) this systemic wisdom.
Accommodating change whilst maintaining stability is a paradigmatic feature
of the Western legal tradition.
By emphasising the worth of dissenting judgments, minority views and legal
history, the space“time approach to legal education appears doctrinally, acade-
mically and socially sound. Doctrinally, this approach ful¬ls the traditional pro-
fessional requirement to teach law according to a practically, professionally
relevant curriculum which survives regular change. Academically, it accords
with the more philosophical and educationally liberal curriculum of traditional
university educators. The social soundness is an aspect of the academic value.
The space“time approach is concerned with forming meaningful relationships
with what is being studied, as an aspect of ˜liberal education™ “ which aims to
re¬‚ect upon the values of the culture26 and to relate ideas from one subject to
another.27 Such interconnections are occurring more than ever in all areas of
society, between cultures, professions, university disciplines and in general ways
of thinking.28 A responsive legal education will recognise these interconnections
and promote the development of one™s humanity, all too often neglected in legal
thought and practice.29
Scholarship and practice seem more entwined than ever in responding to
the demands of globalisation represented by this interconnection. Academic

24
See Keith Mason, Constancy and Change: Moral and Religious Values in the Australian Legal
System (Leichhardt: Federation Press, 1990), p. 88.
25
On this theme, see R. E. Ball, The Law and the Cloud of the Unknowing (Ilfracombe: Stockwell,
1976).
26
See Anthony Bradney, ˜Liberalising Legal Education™ in Fiona Cownie, The Law School “ Global
Issues, Local Questions (Aldershot: Ashgate Dartmouth, 1999), p. 18.
27
See Andrew Goldsmith, ˜Standing at the Crossroads: Law Schools, Universities, Markets and
the Future of Legal Scholarship™ in Cownie, The Law School, p. 79. See too William Twining,
Law in Context: Enlarging a Discipline (Oxford: Clarendon Press, 1997), p. 141.
28
See Adelle Blackett, ˜Globalization and its Ambiguities: Implications for Law School Curricular
Reform™ (1998) 37 Columbia Journal of Transnational Law 57“79, 79.
29
See Harvey M. Weinstein, ˜The Integration of Intellect and Feeling in the Study of Law™ (1982)
32 Journal of Legal Education 87“98, 97.
308 Globalisation and the Western Legal Tradition


scholarship cannot be the only place to search for truth in law, just as legal prac-
tice or social activism will not be enough.30 To indulge the theory without the
practice31 is to perpetuate the divisive opposition between interior and cultural
allegiances (experience) versus exterior and political allegiances (reason). It is
to assume that rationality (logos) is superior to culture (nomos), and to ignore
practical allegiances from historical practices. Returning to the gambit at the
very start of this book, purely theoretical, logical enquiry in law is fraught with
the dynamic of the child attempting to answer the problems of the world with
an untested logic, ignoring the lessons from the adult™s practical experience.
Each is undesirable in isolation.


13.3.2 Speed as virtue
What might all of this interconnection hold for the future of law, at the level of
practice? The accelerated interconnections sprung from the technology and
novelty associated with globalisation are particularly relevant to legal educa-
tion and practice. Electronic precedents, research and knowledge management
have prompted Richard Susskind to suggest that the lawyer will become more
like a ˜legal information engineer™.32 On this prognosis, the lawyer will work
with information like a skilled technician, plucking, grinding and inserting
information where, when and how directed, to build the strongest, most con-
venient argument and document from the materials available. Of critical sig-
ni¬cance is the value this ˜computerisation™ of law salutes, namely economic
productivity, utilising law and lawyers as economic tools. Productivity will be
measured in terms of speed. According to Microsoft chairman, Bill Gates: ˜If
the 1980s were about quality and the 1990s were about reengineering, then the
2000s will be about velocity. About how quickly the nature of business will
change. About how quickly business itself will be transacted. About how infor-
mation access will alter the lifestyle of consumers and their expectations of
business.™33
The ˜nervous system™ or brain of a business will be ˜digital™. Lawyers, in the
estimation of Gates, will have to work ˜seamlessly™34 with such systems. Deals will
need to be completed faster. For private lawyers, more clients will need to be
advised in less time to increase pro¬tability. Existence will be deconstructed by
the panopticon of the timesheet into 6-minute units which are either chargeable
or non-chargeable, rewarded or not rewarded, worthwhile or not worthwhile

30
Contra John Gava, ˜Scholarship and Community™ (1994) 16 Sydney Law Review 443“72,
esp. 450.
31
See Christine Parker and Andrew Goldsmith, ˜ “Failed Sociologists” in the Market Place: Law
Schools in Australia™ (1998) 25 Journal of Law & Society 33“70, 48; O. Weyrauch, ˜Legal
Practice as Search for Truth™ (1985) 35 Journal of Legal Education 123“9.
32
See Richard Susskind, The Future of Law: Facing the Challenges of Information Technology
(Oxford: Oxford University Press, 1998).
33
Bill Gates, with Collins Hemingway, Business @ the Speed of Thought: Using a Digital Nervous
34
System (New York: Warner Books, 1999), p. xiii. Ibid., pp. 37, 140.
309 Conclusion: what is to be done?


according to ¬nancial return. For public interest lawyers, backlogs will need to
be cleared and case turnover increased. Novelty will need to be devoured and
fashioned into practical solutions. Economic criteria will be used increasingly to
account for the time of any university graduate pursuing probably any career.
There will be less time to think. There will be less time to wonder. That is just for
the lawyers. For those who require legal services, considerably greater social
justice issues lurk beneath.
Aggressive competition will be a hallmark of what Philip Bobbitt calls the
˜market-state™ which is replacing the nation-state and the predisposition of that
prior model to trade wars.35 Aggressive competition is likely to be more reliant
upon speed to meet impatient goals for the production of goods and services “
including law “ within and across traditional jurisdictions. Humans become
pitted against time. Momentously, the economy now claims ownership of time,
where time was once believed to be owned by God.36 It is an article of faith in
modern Western societies that money, by one of its de¬nitions, captures and
stores time which has been spent on productive work. Generally, money comes
at the expense of time.37 The dependence of advanced capitalist economies on
credit means that the receipt of money in the present by way of credit creates a
mortgage over the future which must be repaid by working ever-harder and
longer hours. For bourgeois and managerial classes, the trend is new on this
scale.
Alas, creative thought requires time as an essential nutrient. In an age
when speed becomes a prized virtue and the time allowed for thinking
decreases, thoughts risk growing reactionary, and instinctively at the service
of unquestioned imperatives. Minds face being run into the ground like the
bodies of Dickensian factory workers. The lawyer becomes homo computans,
absorbed in reckoning other people™s purposes. Education therefore becomes
more important than ever to stimulate the sorts of intuitions and values
which might otherwise be di¬cult to generate independently in the so-called
˜real world™ of professional practice. Education, however, feels the strain.
More law students will need to be produced with less money, a challenge
faced in all university disciplines. This poses problems for learning and prac-
tising law ethically38 and meaningfully, let alone living meaningfully and with
soul.39


35
Philip Bobbitt, The Shield of Achilles: War, Peace and the Course of History (London: Penguin,
36
2003), p. 706. See ch. 7, section 7.6.2, pp. 163“4 above.
37
Christoph Deutschmann, ˜Capitalism as Religion: An Unorthodox Analysis of
Entrepreneurship™ (2001) 4 European Journal of Social Theory 387“403, 392.
38
See Patrick Schiltz, ˜On Being a Happy, Healthy and Ethical Member of an Unhappy,
Unhealthy, and Unethical Profession™ (1999) 52 Vanderbilt Law Review 871“951, 888, 900, 911
and 949 (in a commercial law ¬rm, ˜you cannot practice law ethically “ unless acting ethically is
habitual for you™, at 911 [original italics]).
39
On ˜time of the essence™ society and the loss of soul, see Richard K. Fenn, The Persistence of
Purgatory (Cambridge: Cambridge University Press, 1995), pp. 177“97.
310 Globalisation and the Western Legal Tradition


13.3.3 Time for generalities
Against this surreal confusion between human and machine, wondering and
thinking o¬er the potential to have new ideas and to appreciate what may not
at ¬rst be apparent. Globalisation, we have seen, is popularly perceived as a
dominant set of universalist values such as free trade, global markets and
human rights (however re¬‚ected or not re¬‚ected in practice). In fact, these
notions are fraught with complexities as they work themselves out in particu-
lar contexts. The particular manifestations are often characterised by long, rich
histories and traditions confronted by dominant, universalistic global tenden-
cies which do not respond in typical ways. The confrontations are good for
some and bad for others on both the universalist and the di¬erentiated, partic-
ular teams.40 Importantly, these confrontations must be thought about. They
must be subjected to discourse and curiosity.
General theorising, rather than just production-line-like concentration upon
the particular task for which one has been trained, is essential for understand-
ing what is going on now and for directing the future. We must avoid the admo-
nition in Aldous Huxley™s Brave New World that ˜you won™t have time for
generalities™.41 The Chief Justice of the Vermont Supreme Court has been crit-
ical of the particularistic proclivities of judges. Judges ˜with less time to think
broadly, and more responsibility to decide narrowly, are most comfortable
when speaking of parts™.42 Technical excellence directed to a particular doctri-
nal area will always be important for lawyers attempting to achieve clients™ goals
and for judges seeking to discern and apply ˜the law™, but the big picture must
not be overlooked. Global and technological challenges open a Pandora™s box of
legal issues associated with genetics, arti¬cial intelligence, universal norms for
di¬erent peoples and human disregard, if not contempt, for the natural envir-
onment (which will eventually be avenged). Such questions are neither to be
answered quickly nor even by reference only to the humanities or the sciences.
Certainly, more than just narrow legal doctrine will be required for the educa-
tion of a profession which must pursue meaningful order amidst all of this
change.
The treatment of knowledge as so many units of information on a database,
to be imparted to students as quickly as possible, encourages simplicity where
there is actually complexity. Insu¬cient time to re¬‚ect duly upon these phe-
nomena induces a satisfaction with simple answers in the face of complex legal,

40
See Immanuel Wallerstein, ˜Opening Remarks: Legal Constraints on the Capitalist World-
Economy™ in Michael Likosky (ed.), Transnational Legal Processes (London: Butterworths, 2002).
41
Aldous Huxley, Brave New World [1932] (Essex: Longman Group UK, 1989), p. 2; see too ch. 1,
section 1.3, p. 12 above. Resorting with some licence to Huxley, legal training should be ˜less
rigid than the training imposed upon those whose business is not to reason why, but merely to
do and die with a minimum of fuss™: Aldous Huxley, Brave New World Revisited (London:
Triad Grafton Books, 1983), p. 108.
42
Je¬rey L. Amestoy, ˜Uncommon Humanity: Re¬‚ections on Judging in a Post-Human Era™
(2003) 78 New York University Law Review 1581“95, 1586.
311 Conclusion: what is to be done?


philosophical and sociological dynamics. Unfortunately these simple answers
may make only for simple people. Education con¬ned only to perceived useful-
ness, in the chrestomathic style advocated by the codi¬er Jeremy Bentham,
serves only to edify present-minded teachers and the perceived needs of the
present. Interconnected societies will not be served well by simple conceptions
of globalisation and law, carried as articles of faith by students encouraged in
their haste to become professional lawyers and unthoughtfully productive par-
ticipants in an economy of unquestioned imperatives.
Speed as a cardinal virtue will discourage re¬‚ection and, in so doing, the very
thing legal practice needs most at this point of time “ critical, creative thought,
born of the wandering, wondering mind, which can adapt to change and con-
strue those changes meaningfully. Students should be equipped neither solely
nor even primarily with technical legal knowledge, which can quickly become
redundant. Skills which will last a lifetime of change and time-pressures will
better serve the student and society “ skills of interpreting legal materials and
materials which can become legal materials (which includes any body of writing
which can be called into evidence, relied upon to advise any manner of client,
or used to understand and to in¬‚uence the laws of judges and legislators).
If lawyers wish to practise law as a vocation with a signi¬cance beyond the
immediacy of client interests and remuneration, they will require some basic
awareness of a variety of disciplines which all add meaning to law and, not least
of all, human life. A consciousness of history will alert that practice to the con-
tingency of the moment.


13.4 The importance of historical consciousness today
In the global context, the major peril besetting law is the ignorance of the sym-
bolism in the major treaties and documents of the emerging world society. That
symbolism is historical. It is bound up with the ultimate reality and meaning of
life. That symbolism is explicit in general terms in the preambles, as we have
seen, to the major European Union and United Nations documents which re¬‚ect
upon the human tragedy of the World Revolution and the need for a world
society existing with other societies. The two world wars and the associated
intervening great economic depression are mostly forgotten in the discourse
relating to these documents. Yet this revolution was the reason for their birth.


13.4.1 Integrative jurisprudence
The United Nations and the European Union are human devices which re¬‚ect,
arguably, the greatest ambition glimpsed by humans in modern history “
namely, a world society coexisting with, and enabling order to ¬‚ourish in, other
societies. EU and UN constitutional preambles have a religious intensity about
them which risks being forgotten if the legal systems they have inspired live only
functionally (and not symbolically too) in the minds of their practitioners and
312 Globalisation and the Western Legal Tradition


subjects. Economic relations are legally established on such a grand scale under
these regimes that they have come into adulthood with only infrequent refer-
ences to the historical circumstances of their important conception. The World
Revolution was no historical tri¬‚e. It claimed the lives of some 150 million
people and scarred their children and environments. Particular cultures, as the
associated events have a¬ected them, have turned composites of this ¬gure into
their own ritual laments. National remembrance days, civic monuments and
holocaust memorials attest to this. Transcending this diversity, at the more uni-
versal level, the greatest chance for avoiding such catastrophe in the future is
linked to the emerging world society and its laws, and remembrance of the
origins of these new institutions of world society such as the EU at the European
level and the UN at the world level. In the midst of relying upon technical
aspects of these legal systems, the preambles to their treaties should recall the
horrors of the World Revolution and inspire the moral allegiance all humans
owe to the avoidance of such catastrophe. Just as the blow to the face of the
medieval knight reminded him for all time of the service he owed to his sponsor,
or as the blood sacri¬ce reminded Old and New Testament peoples of (and
sancti¬ed) social covenants, the preambles must be read and lived in their
bloody yet hopeful context.
As a matter of jurisprudence, the historical dimension to this law must be
integrated with the exterior, positive law which comes from the state and supra-
state law. This is to integrate the positivist school with the historical school.
Joining this equation must be the moral and rational justi¬cations which come
from both the interior and exterior orientations on the Space Axis (morality
being more associated with the interior and rationality with the exterior). This
is to bring the natural law school into the equation. Altogether, this is the project
of ˜integrative jurisprudence™ advocated by Harold J. Berman. His examples of
the three major schools of legal thought may be adapted to ¬t the Space“Time
Matrix. From the exterior orientation of the Space Axis (corresponding to his
use of the positive law school), capital punishment may be legal (or illegal)
because the state says so. From the interior dimension of the Space Axis (corres-
ponding to the natural law school), capital punishment may be wrong because
it contravenes the sanctity of life, or right, because anybody who murders
deserves to die.43 From the past“future orientation of the Time Axis (corres-
ponding to the historical school), capital punishment might be wrong in certain
countries but not other countries; it may be wrong in Germany, given what
Germany lived through under Nazism.44 In a further speci¬c example taken
from Germany, Bruce Ackerman has written that the Basic Law interpreted by
the German Constitutional Court has become ˜a central symbol of the nation™s

43
Natural law theory can also issue from the exterior orientation, through the exercise of
rationality which might not necessarily attract personal, moral allegiance.
44
So said the German philosopher Jürgen Habermas, as quoted in the examples taken above
from Harold J. Berman, Faith and Order: The Reconciliation of Law and Religion (Atlanta:
Scholars Press, 1993), p. 301.
313 Conclusion: what is to be done?


break with its Nazi past™.45 This historical style of argument is perhaps pertinent
to raise in the face of any exercise of illiberal trade measures being adopted in
Europe. Barriers to free trade are historically associated with national self-
aggrandisement, the consequences of which have been horri¬c. Such argument
should comprise the ¬rst principles of trade debate and legal interpretation; the
interests of consumers or business should be secondary or at least integrated
with the important historical considerations.
Finally, a re¬‚ection upon the normative complexity of love from an extract
of a novel may further illustrate the importance of historical consciousness to
law and authority.


13.4.2 Justifying authority: a romantic lesson
George Eliot™s novel The Mill on the Floss, originally published in 1860, contains
a dialogue which highlights the sources of authority which issue from the
various orientations of the Space“Time Matrix. Although the dialogue
addresses the normative complexity of love, we can use the principles expressed
in the dialogue to illustrate the way law is justi¬ed. Eliot portrays love in terms
of the interior (natural law), exterior (positive law) and past and future (his-
torical) orientations. The dialogue reveals the great normative value of a his-
torical consciousness outside legislation and resolutions, on the one hand, and
self-serving morality, on the other.
Maggie has inadvertently left behind her sensitive but deformed suitor, Phillip,
¬nding herself on a boat with her best friend Lucy™s suitor, Stephen. Previous
chapters have identi¬ed an undercurrent of love between the couple now alone on
the boat. Maggie and Stephen have drifted too far and must spend the night
together. It seems that with all the shame which must follow, the simplest solution
for Stephen and Maggie would be to elope and consummate their suppressed love.
An emotionally wrenching debate about the circumstance ensues.46 Says Stephen:
˜We have proved that it was impossible to keep our resolutions. We have proved
that the feeling which draws us towards each other is too strong to be overcome:
that natural law surmounts every other; we can™t help what it clashes with.™
By these words, Stephen reveals himself as a naturalist, for whom resolutions
(analogy: legislation) can be overridden by the convenience of one™s personal,
idiosyncratic, interior moral impulses or sense of reason.47
45
Bruce Ackerman, ˜The Rise of World Constitutionalism™ (1997) 83 Virginia Law Review
771“97, 778. See too Michael Sch¤fer, ˜Memory in the Construction of Constitutions™ (2002)
15 Ratio Juris 403“17 and the German concept of Vergangenheitsbew¤ltigung in ch. 11, section
11.6, p. 272 above.
46
These quotations are taken from George Eliot, The Mill on the Floss [1860] (London: Wm
Collins, 1952), p. 466.
47
˜Naturalism in action, striding from declaring reality to prescribing policy, knowing no justice
but the purpose of the party in power, is perhaps the greatest threat to the idea of law . . .™:
Franz Wieacker, A History of Private Law in Europe, With Particular Reference to Germany
(Oxford: Oxford University Press, 1995), p. 458.
314 Globalisation and the Western Legal Tradition


Maggie however follows with an alternative. Says Maggie:
˜It is not so, Stephen “ I™m quite sure that is wrong. I have tried to think it again
and again; but I see, if we judged in that way, there would be a warrant for all
treachery and cruelty “ we should justify breaking the most sacred ties that can
ever be formed on earth. If the past is not to bind us, where can duty lie? We
should have no law but the inclination of the moment.™

Maggie is responding with a positivist emphasis on ties being formed or enacted
outside oneself, and also with a historical emphasis on the binding value of past
action.
Stephen retorts with a further attempt to erode positivism with his naturalism:
˜But there are ties that can™t be kept by mere resolution,™ said Stephen, starting up
and walking about again. ˜What is outward faithfulness? Would they have
thanked us for anything so hollow as constancy without love?™

The narrator then describes the methodology of Maggie:
Maggie did not answer immediately. She was undergoing an inward as well as an
outward contest.

In the midst of a crisis, Maggie looks to her own convictions and then outside,
implicitly, to other people, to benchmarks. Phillip, Lucy and Stephen all rely
upon her.
At last she said, with a passionate assertion of her conviction, as much against
herself as against him “
˜That seems right “ at ¬rst; but when I look further, I™m sure it is not right.
Faithfulness and constancy mean something else besides doing what is easiest and
pleasantest to ourselves. They mean renouncing whatever is opposed to the
reliance others have in us “ whatever would cause misery to those whom the
course of our lives has made dependent on us . . .™

Worthy of note are Maggie™s interior self-analysis and attention outside herself
to her exterior, and her concern with the implications of her historical behav-
iour towards Phillip, Lucy and Stephen. These initiatives display greater sophis-
tication than is re¬‚ected in Stephen™s inability to overcome his urges to revoke
inconvenient resolutions. Stephen seems to represent the power of natural law
to criticise, modify and revoke human laws, by relying upon his interior whims.
Maggie is a paragon of the type of legal virtue I have advocated in this book. She
comprehends exterior rules and interior impulses, and balances these concepts
with the duty she attributes to her past actions which have inspired reliance.
Maggie, for our purposes, draws on the paradigm of historical jurisprudence.
The world society is reliant for its survival upon the resolutions by which
bodies such as the UN and the EU were established. They should not be under-
mined by what feels natural in a time of relative peace and prosperity “ namely
the unrestrained pursuit of trade. As we have learned from Kant in chapter 9,
both peace and trade can go together. Nonetheless, when there is con¬‚ict
315 Conclusion: what is to be done?


between free trade and human rights, it would seem fair to revert as a matter of
interpretation to the real historical meaning behind the universalist structures.
No matter what the conclusion, references to history would at least keep alive
the highest human ideals in the legal order.
This tangential exploration of a similarity between the complexity of legal
authority and the norms of love should have shown the bene¬t of integrating
all of the dimensions of human being on the Space“Time Matrix. Interior and
exterior allegiances to norms should be spoken and subjected to dialogue.
Likewise, visions of the future based upon interpretations of history are articu-
lated and can become common or at least subject to empathy through dialogue.
History can remind us that some norms are too important to the future to be
overridden by the logical conclusions of parliaments or the moral conclusions
of individuals. Thus, law may be thought about as ˜the balancing of morality
and politics in the light of history; it is the balancing of justice and order in the
light of experience™.48 The future success of Western law depends no less upon
the wedding if not reconciliation of the past and the future and the inner and
the outer dimensions of authority.


13.5 Is there anything new under the sun?
Vanity of vanities, all is vanity . . . There is nothing new under the sun . . . There
is no remembrance of former things, nor will there be any remembrance of things
that are to come by those who will come after.49

Recurring patterns of law and authority have featured in this book. With the
remembrance of former things, discernment may arrive as to whether there are
actually new things under the sun, overcoming the amnesiac presumption
that challenges such as globalisation are necessarily novel in all respects.
Remembrance can overcome the vanity of forgetfulness, as history can endow,
with meaning, the achievement of a phenomenon such as globalisation.
The radical nature of a development can be measured by the lack of its com-
monality with things past. Constitutionally, it has been shown, globalisation is
manifesting signi¬cant ancestral traits of the Western legal tradition. Chie¬‚y,
we have found that the authority behind law is very much dependent upon
prevailing notions of a universal God, or ultimate reality and meaning. By
these references, the human becomes orientated on the Space“Time Matrix,
generating feelings of interior morality and respect for, or rejection of, exte-
rior political authority, in the context of a sense of historical destiny. Despite
the historical patterns, globalisation also represents an encounter with the
hitherto unseen worldwide destruction of humans and environment. The
periodical suicidal tendencies of human societies are being addressed in an

48
Harold J. Berman, ˜The Origins of Historical Jurisprudence: Coke, Selden, Hale™ (1994) 103
Yale Law Journal 1651“738, 1731, attributing a de¬nition of law to Coke, Selden and Hale.
49
Ecclesiastes 1: 2“3, 9, 11 (NKJV).
316 Globalisation and the Western Legal Tradition


unprecedented way through dramatically increasing interconnections and
unity of response.
A more sophisticated legal science appears to be the principal prospect “ a
science which might draw upon more and more sources of norms, integrating
the technology of ever more complicated legal rules, jurisdictions, discourses of
morality and wisdom from historical re¬‚ection. In this respect, many of the
legal challenges issuing under the trendy modern banner of ˜globalisation™ may
be considered revolutionary in terms of scale, although not necessarily in terms
of conception. That is, we have already seen a number of jurisdictions compet-
ing within and across given territories and social spheres. What has not been
seen until recently is the sheer number of jurisdictions and normative dis-
courses within and across such territories and spheres. The universalist peace
which is being pursued is also revolutionary in response to unprecedented
destruction. In the twenty-second century, schoolchildren may well consider
these matters in their studies of ˜the World Revolution™ or ˜the Global
Revolution™. They should not catalogue and recite phenomena associated with
these studies like the rote learner does of wars and explorers in the school
history curriculum. Permanent insights into the social condition will hopefully
be recalled and located in the human quest for peace and good order.
By the twenty-second century, in response to the question ˜Why is something
law?™, the child of our Introduction, full of philosophical wonder, may be
answered by the adult in terms di¬erent from those we began with. To answer
˜Because the state says so™ will not do. Perhaps the adult may be humbled to say:
˜Now that™s a very good question. As globalisation con¬rms, it is because history,
cultural morality and political logic suggest that it is law, although it may not
always be law.™ Granted, this may all be a bit too serious for a child, even in the
twenty-second century. Perhaps this answer might be more appropriate for ado-
lescents in high school social or legal studies. Today, the approach may not be
lost on university students and lawyers. The complex answer I have attributed to
the adult by way of conclusion may prompt better questions from the enquirer.
By asking better questions, better answers may be pursued. In the end, on this
the advancement of all thought depends, not least of all legal thinking.
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