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accomplished by cold legal systems and formalities. Inquisitions and world
wars bespeak the passions and shifting spiritualities and ultimate concerns
which underlie fundamental legal challenges. Legal systems which ignore
these allegiances do so at the peril of missing out on the increased e¬ect-
iveness of laws which are believed in, rather than simply coerced.
• Western history shows that humans invest their constitutions with vital
visions for the future which are all too easily forgotten when revolutionary
urgencies are perceived to have passed. Treaties associated with globalisation,
establishing the United Nations, the European Union, the Bretton Woods
economics institutions and the International Criminal Court, should all be
regarded as constitutional documents responding to the World Revolution of
the two world wars in the twentieth century.71
At present, there is a widespread need to contemplate, deeply and critically, just
what the challenges of globalisation mean to the way we think about law and
social order in the West, and what are the historical continuities and disconti-
nuities in the Western legal tradition which can be illuminated by globalisation
studies. What is of value in the Western legal tradition? What should, or indeed
can, be retained in a time of change? Answers to these questions may best be


71
See ch. 10, section 10.3, pp. 220“6 below.
21 Introduction


pursued by reference to the historical, philosophical and normative struggles of
Western societies for the constitution of authoritative social orders.
These are not just matters for legal or social philosophers. Hopefully, in con-
sidering these questions, teachers and their students, writers, curious practi-
tioners and policy-makers grappling with their own particular areas of legal
doctrine in the face of globalisation, may ground their pedagogy, practice and
research, both strategically and normatively. That is, strategically, they may con-
template what might be conceptually new about particular doctrinal and social
challenges occupying their attention. Thoughts on legal strategies for dealing
with these ˜globalisation and law™ challenges, such as legislative regulation, cod-
i¬cation or encouragement of customary norms, may be stirred. Normatively,
these teachers, writers, practitioners and policy-makers may appreciate the
limits and the potential of law, by reference to the moral, political, conservative
and radical dimensions inherent in the discourses of authority which have con-
stituted the Western legal tradition.
The balance of this book attempts to address these key issues. For now, an
exploration of the challenge of our time as it intersects with law “ globalisation “
can be postponed no longer.
Part 1
Towards a Globalist Jurisprudence
2

Globalisation and the World Revolution




Technology is a key element of globalisation. The e¬ects of globalisation are fre-
quently explored in the context of sovereignty. Technology therefore has con-
stitutional implications. Perceived legal correlates to globalisation, such as the
blurring divide between private and public international law through present
constitutional issues associated with competing jurisdictions, legal pluralism,
multinational enterprises and a ˜world society™, are related to the technological
innovation associated with the World Revolution of the two world wars of the
twentieth century. Yet it would be a mistake to assume that these legal develop-
ments are simple reactions to technological and economic forces of globalisa-
tion representing the latest political and economic goals. Far from today™s legal
responses being surface events, deeply layered sediments of legal and political
philosophy and history underlie the topsoil intersections of law and globalisa-
tion. Globalisation and law cannot be understood without delving into the
deeper sediments, pursued in later chapters. In this chapter, the topsoil forma-
tions are ¬rst surveyed in order to identify the sites of authority for later
excavation.
The general notion of globalisation as ˜the accelerated interconnections
amongst things that happen in the world™ will be maintained after some inves-
tigation. The terrorist events of ˜September 11™ 2001, in the United States,
con¬rm this de¬nition. (Within a fortnight, the world aviation industry was
plunged into dire ¬nancial circumstances, international tourism reeled and the
insurance industry faced massive losses.) After observing the profound associ-
ated challenges for social time and space in this chapter, a novel model will be
proposed in chapter 3 to complete the outline for a globalist jurisprudence the
subject of part 2. That will in turn enable, in the balance of this book, an appre-
ciation of the nature of legal authority today by reference to the past millen-
nium. Patterns of law and authority from the ¬rst half of the second millennium
will be seen to be recurring today. Recognition of these patterns and the assess-
ment of law in di¬erent locations and times will be essential to advancing a
general, globalist jurisprudence.
26 Towards a Globalist Jurisprudence


2.1 Grappling with globalisation

2.1.1 Symbols and political change
Before being able to think about something, that thing must have its symbols in
the world.1 This insight will aid the attempt to de¬ne and understand global-
isation. Michael Walzer has argued that the symbolic ˜changes in the way
men conceived the cosmological reference-world™ made possible the political
changes which occurred in the seventeenth century.2 That is, when the earth was
found not to be the centre of the universe, alternative political ideas emerged
from these new symbols. The notion of a Godly, harmonious, hierarchical body
politic was challenged by the socially contracted state comprising clashing indi-
viduals. What symbols of globalisation preceded the thoughts and ultimate
incarnation of globalisation in our world?
Symbolically, the nation-state has, as its scienti¬c correlates, order, precision
and containment within manageable, territorial bounds, certain of time and
space. That very type of Newtonian science was part of Walzer™s example, in
which territorial, parliamentary government became incipient. As the twenti-
eth century unfolded, certain very di¬erent models from the natural sciences
emerged. Einsteinian cosmology posited the relativity of time and space.
According to Albert Einstein, there is no absolute measurement across space:
clocks, for example, will vary according to the speed travelled. Measurement is
localised.3 Although this has only the most miniscule fractional signi¬cance
for any activity on earth, it may have remarkable consequences for philosophy
and, in a less direct way, society. It undermines certainty and increases relativ-
ity, particularly where judgements are concerned. That is, there may be other
ways of looking at things. There may not be one divine set of norms to govern
all people.
Chaos theory provides more useful symbolism. The study of natural phe-
nomena in all their complexity is attempted by chaos theory, unlike classical
science which tends to be reductionist and limiting of its variables. Chaos
theory posits the signi¬cant interconnections amongst relatively distant,
minute things that happen in the world.4 In the common example now
approaching a clich©, a butter¬‚y ¬‚uttering its wings in one hemisphere of the
world may have a signi¬cant e¬ect in the other hemisphere, by way of snow-
balling weather e¬ects which are initiated by the seemingly minor activity of the
butter¬‚y. Benoit Mandelbrot discovered a mathematical formula in fractal
geometry which underlies chaos theory “ positing that randomness produces

111
Langer, Philosophy in a New Key cited in Michael Walzer, ˜On the Role of Symbolism in
Political Thought™ (1967) 82 Political Science Quarterly 191“204, 194.
112
Walzer, ˜Role of Symbolism™, 197.
113
See Boaventura de Sousa Santos, Toward a New Common Sense: Law, Science and Politics in the
Paradigmatic Transition (New York: Routledge, 1995), p. 18.
114
See James Gleick, Chaos: Making a New Science (New York: Penguin, 1987).
27 Globalisation and the World Revolution


recurring patterns, re¬‚ected in the related shapes of, for example, a tree, broc-
coli or the coastline viewed from a distance. His formula, in plot form, pro-
duces a psychedelic, paisley-like pattern which, when magni¬ed, discloses at
the edges of the pattern a further paisley-like pattern, within the edges of
the ¬rst pattern which decrease in intricacy and complexity with magni¬ca-
tion and further enquiry. Magni¬cation may be repeated ad in¬nitum. The
e¬ect is that what appears to be, on the surface, a single uni¬ed pattern, con-
tains underneath ever expanding, complex sub-patterns which, when mag-
ni¬ed, stabilise into the single pattern, demonstrating complexity within the
singularity.
The simple“complex, general“particular, identical“di¬erent paradox5 of
chaos theory is typical of globalisation studies, particularly by sociologists and
cultural theorists. There is complexity behind the easy assumption that global-
isation is a singular, domineering tendency in an emerging global society of cen-
tralised norms. At the same time, there are universalist themes deriving from all
sorts of social diversities, such as human rights. With this caution in mind, an
attempt to de¬ne globalisation may proceed.


2.1.2 History
Literature which explores the notion of globalisation in any depth acknowl-
edges that its origins go way back. Those historical origins and developments
are not, however, globalisation itself “ they are factual precursors which enable
the concept of globalisation to be better understood.
Roland Robertson has proposed, in skeletal terms, the phases leading to glob-
alisation. The ˜germinal phase™ lasted from the early ¬fteenth century to the
mid-eighteenth century, featuring increasing individualism and awareness of
humanity, with the spread of the Gregorian calendar and the heliocentric idea
of the world. The ˜incipient phase™ began in the mid-eighteenth century and
ended in the 1870s. The concept of the unitary state emerged, with standard
citizens and formalised notions of international relations, although there were
problems with non-European societies being admitted to ˜international™
society. The third phase, the ˜take-o¬ phase™, from the 1870s until the mid-
1920s, witnessed the increasing importance of national identity, the inclusion
of some non-European societies in ˜international™ society, and, perhaps most
signi¬cantly, the ˜[v]ery sharp increase in the number and speed of global forms
of communication™ and the development of global competitions such as the
Olympics. From the early 1920s to the mid-1960s, the fourth ˜struggle for hege-
mony™ phase saw disputes and wars about national ideals formalised from the
previous phase. Humanity was confronted with the Holocaust, atomic bomb

115
This is a theme of Fredric Jameson, ˜Notes on Globalization as a Philosophical Issue™ in
Fredric Jameson and Masao Miyoshi (eds.), The Cultures of Globalization (Durham, NC: Duke
University Press, 1998).
28 Towards a Globalist Jurisprudence


and United Nations.6 Finally, there is the ˜uncertainty phase™ from the 1960s,
which brings us to the present, discussed in the next section.
Commerce-led cultural interconnection has been a characteristic of world
and not just Western history since very early times. In the eighteenth and early
nineteenth centuries, it received a boost with the Industrial Revolution and the
free thinking of British economists such as Adam Smith and David Ricardo. The
separation at that time of the economic and political spheres, leaving the market
more to its own devices, in e¬ect de-moralised production.7 The e¬ect on pro-
ductivity was tremendous, illustrated by the hegemonic success of England in
the following century8 as the premier exemplar of this approach to political
economy. Here, most likely, are to be found the profound sources of what is
today termed ˜globalisation™. Although the world economy had been becoming
noticeably more integrated from the sixteenth century onwards, it was not until
the nineteenth century that world prices began to converge “ a truer sign of
interconnection, showing that opportunities for pro¬ts around the world were
being exploited.9 It was a signi¬cant century for economic interconnection.
Migration back then was far greater,10 moving people into new economies.
Indeed, by 1996, world trade as a share of world production was not much
bigger than it had been at the end of the nineteenth century.11 Real time infor-
mation sharing was occurring between ¬nancial markets,12 although, of course,
it was not popularly accessible as it is today via the internet. On balance, there
is today, however, an undeniably heightened presence of interconnection in the
market and cause and e¬ect consequences, for example in interest rate res-
ponses, means of production, macroeconomic policies and growth in develop-
ing countries.
In the ¬eld of legal theory, international law is the most immediate place to
look for the impact of globalisation, being concerned with ˜inter-national™ legal

116
Roland Robertson, ˜Mapping the Global Condition: Globalization as the Central Concept™
in Mike Featherstone (ed.), Global Culture: Nationalism, Globalization and Modernity
(London: Sage, 1990 reprinted 1996), pp. 26“7. Under a title which could have belonged
to our time, the Fabian Society in 1926 sponsored a series of lectures called ˜The Shrinking
World: Dangers and Possibilities™: see Arnold Toynbee, Civilization on Trial (Oxford: Oxford
7
University Press, 1948), p. 97. See ch. 8, section 8.3, pp. 177“8 below.
118
See Paul Kennedy, The Rise and Fall of the Great Powers: Economic Change and Military
Con¬‚ict from 1500 to 2000 (London: Unwin Hyman, 1988), pp. 151“8; Martin Daunton,
˜Britain and Globalisation Since 1850: I. Creating a Global Order, 1850“1914™ (2006) 16
Transactions of the Royal Historical Society 1“38.
119
See Kevin O™Rourke and Je¬rey Williamson, ˜After Columbus: Explaining the Global Trade
Boom, 1500“1800™ (March 2001) NBER Working Paper No. W8186.
110
See David Held and Anthony McGrew, Globalization/Anti-Globalization (Cambridge: Polity
Press, 2002), p. 39.
111
Paul R. Krugman, Pop Internationalism (Cambridge, MA: MIT Press, 1996), p. 212.
112
Paul Hirst and Grahame Thompson, Globalization in Question: The International Economy
and the Possibilities of Governance (Cambridge: Polity Press, 2nd edn, 1999), p. 9. In 1910,
˜international investment as a percentage of total investment was higher than at any other
time™: Samuel Huntington, The Clash of Civilizations and the Remaking of World Order (New
York: Simon & Schuster, 1996), p. 52.
29 Globalisation and the World Revolution


matters as the word, invented by Jeremy Bentham at the end of the eighteenth
century, suggests. It was not until the mid-twentieth century that this notion
began to be modi¬ed with persuasiveness.13 Hans Kelsen was the only major
legal positivist to see international law and national municipal law as part of a
unity: he maintained that the basic foundational norm (Grundnorm) which
gave all law its constitutional validity was from international law.14 For Kelsen,
the international capacity to invoke sanctions was becoming more centralised
in the manner this capacity had developed centuries earlier in national legal
systems.15 In anticipation of the ˜world society™ (as opposed to the international
society of sovereign states), Hersch Lauterpacht contended that international
law had to modify the sovereignty of the state so that the sovereignty of the
person could be re-established in situations of abuse.16
Sociology furthers the idea, in a more thoroughgoing way, that comparative
studies of the nation-state are the appropriate places to look for the conceptual
origins of globalisation. Indeed, sociology is perhaps the most illuminating dis-
cipline for locating the emergence of globalisation as a concept in human con-
sciousness. For a century, critiques of modernisation, notably those of Karl
Marx, had tended to deal with societies (more than just their law) by using a
comparative, mainly national methodology, albeit in a way which sought to
draw out universal principles. That is, comparisons were made between soci-
eties against a Western standard. Yet it was not until the 1970s that these soci-
eties began to be considered as part of an overall system,17 clearing a path for
concerns about globalisation to permeate and transcend national boundaries as
they do now.


2.1.3 Definition and context
In the 1990s, globalisation entered popular culture, if usage of the word in a
major Sydney tabloid is any guide. In 1987, the word ˜globalisation™ appeared
four times, six times in 1988 and fewer than twenty times a year up to 1993;
113
Numerous utopian proposals had nonetheless found their way into the history of
international relations and law, surveyed where they occur in the chronological developments
mapped in parts 2, 3 and 4 of this book.
114
See Danilo Zolo, ˜Hans Kelsen: International Peace Through International Law™ (1998) 9
European Journal of International Law 306“24.
115
See Hedley Bull, ˜Hans Kelsen and International Law™ in Richard Tur and William Twining
(eds.), Essays on Kelsen (Oxford: Clarendon Press, 1986), p. 170.
116
See Hersch Lauterpacht, International Law and Human Rights (London: Stevens & Sons,
1950). Other modern writings to this end, prior to consciousness of ˜globalisation™, include
C. Wilfred Jenks, The Common Law of Mankind (London: Stevens, 1958); Julius Stone, Of Law
and Nations: Between Power Politics and Human Hopes (Bu¬alo: W. S. Hein, 1974), ch. 1. On
the late nineteenth-century capture of preliminary human rights in international law by
Pasquale Fiore, see Martti Koskenniemi, The Gentle Civilizer of Nations: The Rise and Fall of
International Law 1870“1960 (Cambridge: Cambridge University Press, 2001), pp. 54“7.
117
See Roland Robertson, Globalization: Social Theory and Global Culture (London: Sage
Publications, 1992 reprinted 1998), pp. 12“15, discussing Wallerstein™s ˜world-systems
theory™.
30 Towards a Globalist Jurisprudence


growing to 143 times in 1997, 260 in 1998, 280 in 1999, 355 in 2000 and 373 by
early September 2001.18
Around 1996, William Twining ran searches for the words ˜global™ and ˜glob-
alization™ in a library catalogue. After scanning some 250 titles, his synthesis of
a de¬nition of globalisation is useful. He uses the word ˜globalization™ ˜to refer
to those processes which tend to create and consolidate a world economy, a
single ecological system, and a complex network of communications that covers
the whole globe, even if it does not penetrate to every part of it™19 [my italics].
Note the characterisation of this phenomenon as a world undertaking, single yet
complex. This reinforces the paradoxical, chaos theory nature of the phenome-
non, in less abstract terms than another pithy de¬nition “ ˜the compression of
the world and the intensi¬cation of consciousness of the world as a whole™20 “
by Roland Robertson. Anthony Giddens de¬nes globalisation as ˜the intensi¬-
cation of worldwide social relations which link distant localities in such a way
that local happenings are shaped by events occurring many miles away and vice
versa™,21 emphasising the technological feats of communications and travel. The
more speci¬c that de¬nitions of globalisation are, the more simplistic and
preclusive they become by virtue of their focus.22
A mosaic survey of associations will crystallise the most important of the
many inputs which evoke the complex concept of globalisation. Robertson,
continuing his sketch of historical phases of globalisation,23 writes of the ˜uncer-
tainty phase™ of globalisation, referring to technological, world society and indi-
vidual issues. Technologically, he lists the moon landing, nuclear weapons and
global media. More socially, he lists the heightening of global consciousness in
the late 1960s and the inclusion of the Third World, civil rights, interest in world
civil society and world citizenship, the increase in the number of global institu-
tions and movements, social issues of multiculturality and polyethnicity, and
individuals complicated by gender, ethnic and racial considerations.24
Sensitive to local diversities and identities, Boaventura de Sousa Santos writes
that:
the globalization process is connected to other transformations in the world
system which are nonetheless irreducible to it, such as growing world-level
inequality, population explosion, environmental catastrophe, proliferation of
weapons of mass destruction, formal democracy as a political condition for inter-
national assistance to peripheral and semiperipheral countries and so on.25

118
Vic Caroll, ˜What if . . . free trade had won in 1901™, Sydney Morning Herald, 5 September 2001.
119
William Twining, ˜Globalization and Legal Theory: Some Local Implications™ (1996) 49
20
Current Legal Problems 1“42, 2. Robertson, Globalization p. 8.
121
Anthony Giddens, Sociology cited in Boaventura de Sousa Santos, Toward a New Legal Common
Sense: Law, Globalization and Emancipation (London: Butterworths, 2nd edn 2002), p. 165.
122
De¬nitions abound, particularly in the social and cultural studies spheres: see generally, Frank
Lechner and John Boli (eds.), The Globalization Reader (Oxford: Blackwell Publishers, 2nd
23
edn 2004). His sketch to this point was outlined in section 2.1.2, pp. 27“8 above.
124
Robertson, ˜Mapping the Global Condition™, p. 27.
125
Santos, New Legal Common Sense, pp. 166“7.
31 Globalisation and the World Revolution


Globalisation should be thought about in general terms to appreciate it as a
process, not a thing, and to embrace the variety of events and occurrences which
produce the concept of globalisation in our consciousness. Globalisation can be
thought about as much more than just an economic concept. Former World
Bank Chief Economist Joseph Stiglitz de¬nes globalisation as ˜the removal of
barriers to free trade and the closer integration of national economies™, brought
about by ˜the enormous reduction of costs of transportation and communica-
tion accompanied by new cross-border institutions™.26 Whilst many writers treat
globalisation in those economic terms, many including myself do not embrace
such limitations. Such matters must be clari¬ed at the outset of any conversa-
tion about globalisation, to avoid semantic misunderstandings.


2.1.4 Operation
Who is doing what to whom under conditions of globalisation? Take the world-
wide American icon of jeans. The name ˜jeans™ comes from the French name for
Genoa, ˜Gènes™. They are made of denim, derived from a tough blue sailcloth,
called Serge de N®mes, woven in the French town. Levi Strauss, a Bavarian, emi-
grated to New York and supplied prospectors in the 1860s with jeans.27 Who is
doing what to whom may not always be clear, in terms of who is bene¬ting and
who is being exploited. Is or are France, the United States, Italy and/or Germany
the bene¬ciary or bene¬ciaries “ or is the rest of the world? Do the durability
and comfort of these upstart trousers justify ¬‚outing traditional or formal
dress? Di¬erent answers may be possible and all may o¬er helpful distinctions.
The worldwide spread of, for example, Coca-Cola (sometimes described as
˜Cocacolonisation™), demonstrates, on one view, a neat, uncomplicated picture
of a global product. Looking deeper, Coca-Cola is an example of a local product,
originating late in the nineteenth century, in Georgia, USA, as an inauspicious
elixir among many such elixirs which have since fallen by the wayside. In his
model of ideal-types of globalisation, Santos describes this phenomenon as one
of ˜globalized localism™ “ a local product turned global. Oppositely, the phe-
nomenon of ˜localized globalism™ may be identi¬ed “ where a global phenom-
enon has a uniquely local e¬ect.28 According to one of his examples, local
society and environment may change in response to transnational in¬‚uences
such as tourism impacting on local crafts or wildlife. It can also be seen, for
example, in the impact of ˜Americanizing™ ¬lms on Indian or French culture.29
In a peasant Egyptian marriage, the Americanization of femininity, celebration,
happiness, prestige and progress has been observed.30

126
Joseph Stiglitz, Globalization and its Discontents (London: Penguin, 2002), pp. ix, 4“9.
127
See Norman Davies, Europe: A History (London: Pimlico, 1997), p. 774.
128
Santos, New Legal Common Sense, pp. 179“80.
129
Fredric, ˜Notes on Globalization™, pp. 58, 62.
130
Sherif Hetata, ˜Dollarization, Fragmentation and God™ in Jameson and Miyoshi (eds.),
Cultures of Globalization, p. 278.
32 Towards a Globalist Jurisprudence


These two ideal-types of globalisation (˜globalized localism™ and ˜localized
globalism™), although they may be ˜di¬erent dimensions of the same phenom-
ena™, ideally correlate as follows: globalized localism emanates from developed
countries and may be linked with Santos™s idea of ˜hegemonic neo-liberal glob-
alization™; and ˜localized globalism™ is felt in less developed countries and may
inspire ˜counter-hegemonic globalization™.31 Such relationships of subordina-
tion and domination may not always be clear.32 That is, some cultures, in some
ways, appear to bene¬t from globalisation as well as su¬er detriment. A number
of examples can be given. In a developed country like Australia, the impact of
international tourism on the indigenous way of life at a massive sacred rock,
Uluru, is an example of localised globalism. It may be at once good (the indige-
nous community receives ¬nancial reward) and bad (traditional culture is being
a¬ected, particularly as some believe it is sacrilege for tourists to climb the
rock). The Ainu of Japan (unlike Hawaiians) apparently thrive on sales and the
sense of identity which comes of purchases by tourists passing through trad-
itional villages. In a similar vein, the Sapeurs of the Congo have appropriated
the global image of the white coat of the medical profession to bolster the pres-
tige of the witch doctor.33 These general patterns reveal a complexity of partic-
ularistic manifestations which are not the same shape everywhere. These
chaotic manifestations are nonetheless helpful for isolating core themes of glob-
alisation. Perhaps a better description is ˜glocalization™, to transcend the per-
ceived global“local duality.34
Law manifests this complexity. The experience of imperialism from the West,
featuring the imposition of Western legal systems on the new colonies, is a
manifestation of ˜globalized localism™. For example, state law as an emanation
of Western imperialism has an almost ˜alien presence™ in Micronesia.35 Yet
colonialism “ the response of a local community to imperialism, has resulted
in peculiar local responses in local legal systems to more universally imposed
rules “ that is, ˜localized globalism™. For example, a unique jurisprudence devel-
oped in early colonial New South Wales.36 Such processes have been and are
uneven in most jurisdictions.37

131
Santos, New Legal Common Sense, pp. 458“61.
132
See e.g. William Twining, Globalisation and Legal Theory (London: Butterworths, 2000),
p. 222. International legal concepts characteristic of globalisation can be used in counter-
hegemonic ways: Jos© Manuel Pureza, ˜Defensive and Oppositional Counter-Hegemonic
Uses of International Law: From the International Criminal Court to the Common Heritage
of Mankind™ in Santos and Rodríguez-Garavito (eds.), Law and Globalization from Below:
Toward a Cosmopolitan Legality (Cambridge: Cambridge University Press, 2005).
133
See Jonathan Friedman, ˜Being in the World: Globalization and Localization™ in Featherstone
34
(ed.), Global Culture. Robertson, Globalization, pp. 173“4.
135
Brian Z. Tamanaha, A General Jurisprudence of Law and Society (Oxford: Oxford University
Press, 2001), pp. xi, 112“17.
136
Bruce Kercher, ˜Resistance to Law Under Autocracy™ (1997) 60 Modern Law Review 779“97.
137
See William Twining, ˜Di¬usion of Law: A Global Perspective™ (2004) 49 Journal of Legal
Pluralism and Uno¬cial Law 1“45; M. B. Likosky, ˜Cultural Imperialism in the Context of
Transnational Commercial Collaboration™ in Michael Likosky (ed.), Transnational Legal
33 Globalisation and the World Revolution


Two other processes supplement Santos™s theory of globalisation at the ˜para-
digmatic™ level of ˜current worldwide transformations™, with more hopeful
possibilities. ˜Cosmopolitanism™, for Santos, describes the real potential for
˜subordinate nation-states, regions, classes or social groups and their allies to
organize transnationally in defense of perceived common interests™; such cos-
mopolitan examples include human rights organisations, aid organisations and
worldwide labour organisations.38 Along this line, Twining has suggested a
preference for thinking in terms of ˜cosmopolitanism™ over ˜globalisation™.
Cosmopolitanism generally implies an interest in, and loyalty to, humanity as a
whole, rather than globalisation, which is more descriptive and theoretically
dubious in terms of its exclusions, such as more localised issues (for example,
the status of women under Islam) or causes amongst nation-states (for
example, European Union law).39 The concept of cosmopolitanism has, though,
received much criticism from the left. It has been associated with ˜overcom[ing]
the limits of national sovereignty by constructing a global order that will govern
important political as well as economic aspects of both the internal and exter-
nal behaviour of states™.40 It is associated with capitalist market forces, and
American hegemony and hypocrisy. This would appear to be just one reading
of the idea of cosmopolitanism “ and a narrow one at that. The heritage of
cosmopolitanism has a far richer lineage dating back to ancient times, when
Diogenes proclaimed himself ˜a citizen of the world™, ampli¬ed later by
Immanuel Kant in his pioneering enquiry into the conditions for a continuing
world peace. It is not apparent that the Greek Stoics wished to establish a single
world state; they did, however, insist on the individual human™s standing in
the world being viewed as ˜fundamentally and deeply linked to humankind as a
whole™.41 This elucidates the core sense of cosmopolitanism: the notion of a
world civil society, or a world society of interactive human beings, discussed
below in section 2.3.4.
The ˜common heritage of humankind™ is the second of Santos™s more hopeful
paradigmatic processes. Certain issues make sense by reference to the whole
globe, as truly global concerns. These include environmental issues such as
ozone layer depletion, opposition to weapons of mass destruction, together
with positive ventures such as the exploration of outer space. The concept of

Processes (London: Butterworths, 2002); H. Patrick Glenn, On Common Laws (Oxford: Oxford
University Press, 2005), ch. 2; Lauren Benton, Law and Colonial Cultures: Legal Regimes in
World History, 1400“1900 (Cambridge: Cambridge University Press, 2002).
138
Santos, New Legal Common Sense, pp. 180“2; Boaventura de Sousa Santos and C©sar A.
Rodríguez-Garavito, ˜Law, Politics, and the Subaltern in Counter-Hegemonic Globalization™ in
Santos and Rodríguez-Garavito (eds.), Law and Globalization, p. 14.
139
William Twining, ˜The Province of Jurisprudence Re-examined: Problems of Generalization
in a Global Context™ in Catherine Dauvergne (ed.), Jurisprudence for an Interconnected Globe
(Aldershot: Ashgate, 2003).
140
Peter Gowan, ˜Neoliberal Cosmopolitanism™ (2001) 11 New Left Review 79“93, 79.
141
See Martha C. Nussbaum, ˜Kant and Cosmopolitanism™ in James Bohman and Matthias Lutz-
Bachmann, Perpetual Peace: Essays on Kant™s Cosmopolitan Ideal (Cambridge, MA: MIT Press,
1997), pp. 29“30. See, too, ch. 9, section 9.4.2, pp. 209“10 below.
34 Towards a Globalist Jurisprudence


this common heritage contains particular legal responses to globalisation,
which will be discussed below in section 2.4.2.
Our general de¬nition of globalisation as ˜the accelerated interconnections
amongst things that happen in the world™ fares well, considering the foregoing.
It also recognises the unprecedented velocity, intensity and reach of the con-
cept.42 It is a way of maintaining the integrity of globalisation as a process and
not as an event, suggesting that the various aspects of globalisation introduced
above be considered holistically.43 Delving beneath the surface, though, global-
isation is found to be a highly normative phenomenon reliant in large measure,
more so in developed countries, upon law. There, law maintains social stability
and order and facilitates technological progress in these times. Although imper-
fect, the generalisations employed above go a good way to creating some sort of
order from the chaos of globalisation (although lacking the beauty of one of
Mandelbrot™s fractal patterns). What does law contribute to, or re¬‚ect of, this
pattern?


2.2 Globalisation and legal categories
No contemporary doctrinal legal textbook is untouched by globalisation.
Whereas the ¬rst chapter of nearly every doctrinal textbook used to contain
discussion of the related legal history (mostly ignored by students), an add-
itional indirectly relevant chapter may now appear, discussing the interna-
tional and global implications and sources of the subject. If such a chapter does
not appear, the chances are that the global implications and sources are woven
into the main text, in the form of treaty references and decisions from foreign
jurisdictions. Books oriented towards practical legal training in areas such as
conveyancing or municipal court procedure are perhaps the exception. Even in
court procedure, in common law countries at least, there will be persuasive
comparative references to authorities from fellow Commonwealth courts, if
not direct references from times when ultimate appellate jurisdiction belonged
to England. Court rules will refer to service of legal process outside the juris-
diction and the treatment of claims in foreign currencies. Even the most
parochial conveyancing manual may contain references to domestic require-
ments for satisfying, for example in Australia, Foreign Investments Review
Board regulations concerning the intrusion of foreign ownership capital into
the jurisdiction. Understanding such intrusion requires identifying how the
intruder is sifted through universal and particular laws into a category of
person with imposed legal attributes, according to the authority underlying
the status quo. The surface view is exposed in the next section, deferring

142
See Andreas Wimmer, ˜Globalizations Avant la Lettre: A Comparative View of Isomorphization
and Heteromorphization in the Inter-Connecting World™ (2001) 43 Comparative Studies in
Society and History 435“66, 438.
143
See Bruce Mazlish, ˜A Tour of Globalization™ (1999) 7 Indiana Journal of Global Legal Studies
5“16, esp. 10.
35 Globalisation and the World Revolution


evaluation of the deeper history of that construction to parts 3 and 4 with the
rise of the sovereign nation-state concept.


2.2.1 Private international law globalisation
When the words ˜globalisation™ and ˜law™ are run together in a phrase, the stand-
ard response (at least amongst commercial lawyers) is to agitate issues relating
to the law of international transactions, global ¬nancial markets, cyberspace,
environmental compliance and barriers to international transactions. These
issues are all of exponentially increasing currency. For the most part, they are
related to unprecedented advances in information technology, tending to be
concerned with questions such as, ˜can the law cope with the complexities of the
technology?™ “ for example, privacy concerns and cross-border jurisdictional
issues. Adopting the demarcation of law into public and private law categories,
these technology issues sound of private international law in the international
con¬‚icts of laws sense; and also what might be termed international private law
as domestic law seeks to regulate the interaction of private interests from
outside the jurisdiction with internal private interests.
Traditionally, private international laws function as tools for getting things
done “ for pursuing economic objectives and redressing breaches of socio-
economic norms. Globalisation has caused codi¬cation and harmonisation of
law initiatives in this category of laws (see chapter 12) to assume a particular
priority for lawyers acting for cross-border interests for the purpose of advanc-
ing client interests more e¬ciently.


2.2.2 Public international law globalisation
Globalisation and law may also evoke thoughts of, for example, human rights law,
international war crimes and the proper domain of the United Nations. Many
commentators write of the decline of the nation-state, in the face of the transfer-
ence of national sovereignty to such structures as the UN, the World Trade
Organization, the European Union and even international arbitration bodies.
Traditional public international law faces other consequences of globalisation:
nuclear weapons testing, cross-border environmental pollution, migration, citi-
zenship and struggles for national self-determination and recognition. Public
international law traditionally conceived has concentrated on regulating the con-
tests for survival and prosperity of the state society as against other state societies,
rather than being concerned with humans in their relationships with one another.
Individual humans ˜were nothing but spectators of the international scene™.44
Traditionally, such matters of sovereignty are of public international law
signi¬cance or what might be termed international public law, with a more

144
Philip Allott, Eunomia: New Order for a New World (Oxford: Oxford University Press, 1990),
[15.48]“[15.49], [16.8].
36 Towards a Globalist Jurisprudence


explicitly moral ambition, loftier than the technological or industrial advances
sought to be addressed by private international law and international private
law (and indeed loftier than concerns individuals might have had about life
within their state borders). Hunting and trying war criminals serves no direct
productive purpose, exciting instead feelings of justice.


2.3 Globalisation as an integrative concept
Contemporary reality is rendering these hallowed distinctions inconvenient if
not intrinsically problematic45 and historically contingent (as parts 2, 3 and 4 of
this book will evidence). Globalisation, thought about as the accelerated inter-
connections amongst things that happen in the world, inherently transcends
notions of public and private international law norms, and, indeed, the
meaning of such words as public, private, domestic and local. For example, the
public international law notion of war and the public national law of crime
appear to be blurring.46 Notoriety surrounding the detention in Guantanamo
Bay of captives taken by the US in Afghanistan is partly attributable to the
detainees not being a¬orded rights according to the laws of war, making them
appear more like criminals “ yet initially without the modern Western rights of
a criminal to be arrested, charged and tried.
The traditional notion of sovereignty and international law is challenged in
a manner which may be illustrated by four contemporary legal phenomena.


2.3.1 ˜Sovereign egg-shells™ and the ˜global community omelette™
Paul Vinogrado¬ appreciated the problematic and unrealistic claims of sover-
eignty as early as 1920 by comparing with King Canute™s inability to control the
tide the inability of a sovereign to direct and command society.47 He noted in
another essay that the basic Western categorisation of law is inadequate because
it starts from forms of state organisation (politically established in an
Aristotelian sense) rather than social organisation.48
A suitable metaphor for sovereignty in the interconnected legal order,
devised by Ken Booth, is of ˜an egg-box containing the shells of sovereignty,
alongside which a global community omelet is cooking™.49 The omelette is a
145
See Alex Mills, ˜The Private History of International Law™ (2006) 55 International and
Comparative Law Quarterly 1“49; Paul Schi¬ Berman, ˜From International Law to Law and
Globalization™ (2005) 43 Columbia Journal of Transnational Law 485“556; and generally the
essays in Paul Schi¬ Berman (ed.), The Globalization of International Law (Burlington:
Ashgate, 2005).
146
See Philip Bobbitt, The Shield of Achilles: War, Peace and the Course of History (London:
Penguin, 2003), p. 354; Michael Sherry, ˜Dead or Alive: American Vengeance Goes Global™
(2005) 31 Review of International Studies 245“63.
147
Paul Vinogrado¬, The Collected Papers of Paul Vinogrado¬, 2 vols. (Oxford: Clarendon Press,
48
1928), vol. II, p. 220. Paul Vinogrado¬, Collected Papers, vol. II, p. 250.
149
Ken Booth, ˜Security in Anarchy: Utopian Realism, in Theory and Practice™ (1991) 67
International A¬airs 527“45, 542.
37 Globalisation and the World Revolution


world society of human beings as an alternative or supplement to nation-state
societies (see section 2.3.4 below). Yet the egg-shells “ the sovereign nation-
states “ are not, of course, spent forces in their own right, and they too feature
interconnections and channels of co-operation with other states (for example,
networks of police, ¬nancial regulators and judiciaries of di¬erent states) con-
stituting a new role for states in Anne-Marie Slaughter™s view of the ˜new world
order™ in which she identi¬es ˜disaggregated sovereignty™.50 The patterns of
authority underlying the social construction of the egg-box “ that is, the society
of nation-states now symbolised by eggshells in the egg-box “ are explored in
detail in parts 2, 3 and 4.


2.3.2 Competing jurisdictions and legal pluralism
Legal pluralism is an alternative to absolutist conceptions of sovereignty which
insist upon the state for legal validity. A discourse has grown from this critical
insight,51 pioneered by Eugen Ehrlich and his notion of the ˜living law™ of
society.52 Organised groups exist alongside and within the state, with their own
autonomous ˜legal™ orderings which can call into play psychological and phys-
ical coercion (for example, an employer with the conditional power to termi-
nate an employee™s employment). Emerging global networks of jurisdictions
and orders feature ˜a multiplicity of diverse communicative processes in a given
social ¬eld that observe social action under the binary code of legal/illegal™.53
That is, the rules of states, the ˜supranational™ rules of regional entities such
as the European Union, the rules of the world market, and rules of conduct
amongst merchants, as often separate communication processes, become their
own sources of the legal and the illegal, taking on the character of law.
This idea of legal pluralism is more than simply admitting ˜multiple perspec-
tives™ of norms; rather, it represents ˜the co-existence of multiple legal orders in
the same context of time and space™.54 A positivist jurist, Neil MacCormick,
admits within the de¬nition of law the species of international law, primitive
150
Anne-Marie Slaughter, A New World Order (Princeton: Princeton University Press, 2004),
p. 34.
151
Space constraints disallow elaboration of the nuances. See generally John Gri¬ths, ˜What is
Legal Pluralism?™ (1986) 24 Journal of Legal Pluralism and Uno¬cial Law 1“55; Sally Engle
Merry, ˜Legal Pluralism™ (1988) 22 Law & Society Review 869“96; Santos, New Legal Common
Sense, pp. 89“98; Tamanaha, General Jurisprudence, pp. 115“17, 172“3; Neil Walker, ˜The Idea
of Constitutional Pluralism™ (2002) 65 Modern Law Review 317“59; Jeremy Webber, ˜Legal
Pluralism and Human Agency™ (2006) 44 Osgoode Hall Law Journal 167“98. For an illustrative
case study of the transnational toy industry, see Francis Snyder, ˜Governing Globalisation™ in
Likosky (ed.), Transnational Legal Processes. Contra Simon Roberts, ˜After Government? On
Representing Law Without the State™ (2005) 68 Modern Law Review 1“24, privileging
centralism over ˜negotiated understanding™.
152
Eugen Ehrlich, Fundamental Principles of the Sociology of Law, trans. Walter L. Moll
(Cambridge, MA: Harvard University Press, 1936).
153
Gunther Teubner, ˜ “Global Bukowina”: Legal Pluralism in the World Society™ in Gunther
Teubner (ed.), Global Law Without a State (Brook¬eld: Dartmouth Publishing Company
54
Limited, 1997), p. 14. Twining, Globalisation and Legal Theory, p. 216.
38 Towards a Globalist Jurisprudence


law and church law, plus the living law of universities, ¬rms and families, when
law is considered by de¬nition to be partly institutionalised normative order.55
Importantly, there is a historical connection between, and signi¬cance to,
these more sociological approaches to recognising multiple legal systems and
law in the evolution of the Western legal tradition. In medieval times, with
diverse systems of ecclesiastical, feudal, manorial, royal, urban and mercantile
law operating and sometimes competing in the same territory, legal and social
sophistication ensued. Technical jurisdictional questions belied ˜important
political and economic considerations: church versus town, town versus lord,
lord versus merchant, and so on™.56
The jurisdictional complexity or competing jurisdictions borne of increasing
numbers of legal systems therefore has parallels with the medieval social con-
dition as will be seen in parts 2 and 3 of this book, with promising indications
that legal discourse is equipped with the intellectual resources to ¬nd authori-
tative answers in the process of fathoming important political and economic
considerations. Presently, overlapping networks of national, regional and truly
global tribunals are developing57 beyond internationally contemplated hierar-
chies;58 and ˜functional, overlapping, and competing jurisdictions™ has become
a term of art for an economic evaluation of jurisdictions.59 ˜[M]ultinational
companies, NGOs, governments and ad hoc coalitions share overlapping
authority within a framework of universal commercial law but regionalized
political rules.™60 If this is ˜a key concept of a post-modern understanding of
law™,61 it might well be the key to a medieval and modern understanding, too.
The ˜race to the bottom™ jurisdictional mentality, whereby some jurisdictions
o¬er incentives to law consumers to take advantage of lax laws (for example,
Third World labour laws, Delaware incorporation laws), may be understood in

155
Neil MacCormick, ˜Beyond the Sovereign State™ (1993) 56 Modern Law Review 1“18, 14.
156
See Harold J. Berman, Law and Revolution: The Formation of the Western Legal Tradition
(Cambridge MA: Harvard University Press, 1983), p. 10. As late as the eighteenth century,
Blackstone wrote that English law contained di¬erent systems “ natural law, divine law,
international law, ecclesiastical law, Roman law, law merchant, local customs, common law,
statute law and equity. These systems were administered by di¬erent courts, such as church
courts, admiralty courts, university courts, common law courts and courts of equity,
although parliament and common law courts were by that time supreme (pp. 268“9). And
now, see H. Patrick Glenn, ˜Transnational Common Laws™ (2006) 29 Fordham International
Law Journal 457“71.
157
See Laurence R. Helfer and Anne-Marie Slaughter, ˜Toward a Theory of E¬ective Supranational
Adjudication™ (1997) 107 Yale Law Journal 273“391, 282; Yuval Shany, The Competing
Jurisdictions of International Courts and Tribunals (Oxford: Oxford University Press, 2003).
158
e.g. article 103, UN Charter; article 30, Vienna Convention on the Law of Treaties.
159
See Bruno S. Frey and Reiner Eichenberger, The New Democratic Federalism for Europe:
Functional, Overlapping and Competing Jurisdictions (Northampton, MA: Edward Elgar
Publishing, 1999); Horatia Muir Watt, ˜Choice of Law in Integrated and Interconnected
Markets: A Matter of Political Economy™ (2003) 9 Columbia Journal of European Law 383“409.
160
Bobbitt, Shield of Achilles, p. 363.
161
Jean-Philippe Rob©, ˜Multinational Enterprises: The Constitution of a Pluralistic Legal Order™
in Gunther Teubner (ed.), Global Law Without a State (Brook¬eld: Dartmouth Publishing
Company Limited, 1997), p. 56.
39 Globalisation and the World Revolution


this process. It is not new. Informality and pragmatism in the ¬fteenth-century
Chancery courts attracted business from the common law courts.62 Similarly
a ˜race to the top™ between jurisdictions can be positive “ for example, today
London and New York are popular commercial jurisdictions for their predict-
ability and fairness, just as the emancipatory fairness of a medieval royal court
might attract the vassal away from the feudal court. (Whether these are ˜races
to the top or bottom™ may depend upon standpoint.) Tensions between laws of
di¬erent jurisdictions can be creatively exploited to achieve gains for margin-
alised people “ for example, Portuguese water laws versus European Union
directives, the latter o¬ering more protection to marginalised Portuguese.63
As a matter of legal science, globalisation makes it di¬cult to govern global
spaces by traditional territorial means and laws. Legal rules are typically general
in application. It is di¬cult for such rules to be uniformly applicable, given the
diversity of the world. Two case studies in part 5, on the European Union (chapter
11) and international commercial law (chapter 12), respectively illuminate the
public and private law aspects of the phenomenon of competing jurisdictions.


2.3.3 The multinational enterprise
Pertinently following a discussion of legal pluralism and its tendencies for nor-
mative integration or confrontation amongst di¬erent cultures or interests, the
multinational enterprise or transnational corporation exists simultaneously
under di¬erent state legal regimes. Such institutions include pro¬t-seeking cor-
porations (such as IBM or Toyota), as well as religious institutions, trade, indus-
trial and sporting associations.64 Despite not having its own legal category in
either state or international law (although in a di¬erent national jurisdiction a
branch of it can be recognised as a corporation or a foreign corporation), the
multinational enterprise nonetheless constitutes ˜an autonomous legal order™
with its own coercive means, be they physical or psychological,65 within the
culture of the organisation (for example, the organisation™s attitude to work
hours, attention to detail).
Producing more than a third of the world™s industrial output, multinationals
feature a new international division of labour, characterised by worldwide
sourcing, and low transportation costs allowing for consumption by developed
countries and production in the poorer country.66 Their political distribution
is shifting from almost exclusive American“European origin, to almost two-
¬fths Japanese“Asian origin.67 Although relying upon economic and cultural
peculiarities of nation-states particularly in the area of property rights,68 with
their headquarters and assets often concentrated in one or a small number of

162
J. H. Baker, An Introduction to English Legal History (London: Butterworths, 4th edn 2002),
63
pp. 39“41. Santos and Rodríguez-Garavito, ˜Law, Politics and the Subaltern™, p. 17.
164 65
See Allott, Eunomia [13.80]. Rob©, ˜Multinational Enterprises™, pp. 52“3.
166 67
See Santos, New Legal Common Sense, pp. 167“8. Mazlish, ˜Tour of Globalization™, 12.
168
Rob©, ˜Multinational Enterprises™, p. 51.
40 Towards a Globalist Jurisprudence


states,69 the economic e¬ect of multinationals is powerful. Firms, and particu-
larly global ¬nancial markets, may be said to have an ˜economic citizenship™
beyond the participation of individuals with respect to national governments70
and an economic signi¬cance greater than many nation-states71 without the
democratic safeguards (although there is extensive constitutional regulation
of corporations in most Western jurisdictions). To address this, increasing
numbers of voluntary codes abound.72 A recent draft UN code, Norms on the
Responsibilities of Transnational Corporations and other Business Enterprises with
Regard to Human Rights,73 purports to transform transnational corporations. It
proposes to divert them from the raison d™être of private, shareholder-value-
maximisation into a style of entity with public, state-like functions to enforce
labour, civil and political and human rights, challenging traditional domestic,
international, public and private institutions of governance.74
In terms of brute political power, states still prevail according to the measures
of tax levying and production of weapons of mass destruction.75 Nonetheless, a
theory of international law and society which ignores the multinational ˜is not
worthy to be a theory of the international society of the future™.76
What of the global community omelette?


2.3.4 World society
Martians might be able to look at the earth and see only one global culture, but
for earth-bound humans, ˜the idea of a “global culture” is a practical impos-
sibility, except in interplanetary terms™.77 So much would be suggested by the
notion of legal pluralism. Yet, although the concept of a single global culture
stretches the imagination, the ability to relate to other cultures and civilisations,
past and present, is widespread. ˜Always and everywhere, the struggle of human
life and the response of socializing humanity have a family resemblance.™78
Ethically, we need to ask ourselves whether it is better to continue to live or at
least think within the boundaries of nation-states, or should we consider our-
selves to be members of a world society?79
169
See Hirst and Thompson, Globalization in Question, p. 272.
170
Saskia Sassen, Losing Control: Sovereignty in an Age of Globalization (New York: Columbia
University Press, 1996), pp. 38“58.
171
Fifty-two multinationals were richer than 120“30 Member States of the UN, according to UN
¬gures quoted in 1999 by Mazlish, ˜Tour of Globalization™, 12.
172
See Ronan Shamir, ˜Corporate Social Responsibility: A Case of Hegemony and Counter-
Hegemony™ in Santos and Rodríguez-Garavito (eds.), Law and Globalization, p. 102.
173
UN Doc. E/CN.4/Sub.2/2003/L.8.
174
See Larry Cata Backer, ˜Multinational Corporations, Transnational Law: The United Nation™s
Norms on the Responsibilities of Transnational Corporations as Harbinger of Corporate
Responsibility (2005) 37 Columbia Human Rights Law Review 287“389.
175 76
See Held and McGrew, Globalization/Anti-Globalization, p. 9. Allott, Eunomia, [13.45].
177
Anthony D. Smith, ˜Towards a Global Culture?™ in Featherstone (ed.), Global Culture, p. 171.
178
Allott, Eunomia, [5.6].
179
See Peter Singer, One World: The Ethics of Globalisation (Melbourne: Text Publishing, 2nd edn
2004), p. 187.
41 Globalisation and the World Revolution


Present moral developments in public international law, such as human
rights and free trade, are attracting personal allegiance to such traditionally
public, meta-state laws previously the domain of states. In this process, inter-
national society is becoming more of a ˜society™ in the true sense of the word,
comprised not only of states caring about narrowly de¬ned state interests but
also of citizens (sometimes mobilised at the transnational level, for example,
through the diverse interests comprising the World Social Forum).80 Such citi-
zens may relate to the international order sometimes with more allegiance than
they relate to the state and are able to e¬ect change within the state. This is dis-
cussed in some detail in chapter 10, in the context of human rights, as is the
problematic of normative universality. In some such cases, citizens can compel
state behaviour according to public international law treaty standards. The con-
tinued development of these norms may be rendering ˜the moral signi¬cance of
the human race . . . available as a moral reality of international society, as the
society of the whole human race and the society of all societies™.81 Global (as dis-
tinguished from national) generations appear to be emerging, connected by
technology.82 Following from our legal pluralism insights, these developments
do not suggest a single, all-encompassing society, but rather an alternate
society “ a global society in a dynamic conversation with powerful ideas and
realities (for example, environmental issues) transcending more local societies.
The increasing numbers of international governmental and non-
governmental organisations (IGOs and INGOs, respectively) also demon-
strate the rise of a world society. At the beginning of the twentieth century
there were only 37 IGOs and 176 INGOs, compared with, in the year 2000,
6,743 IGOs and 47,098 INGOs (less some ˜inactive or dead™ organisations).
Highly active international policy formulators, such as the United Nations,
G7, International Monetary Fund, World Trade Organization, Asia“Paci¬c
Economic Co-operation and the World Social Forum, also evidence the emer-
gence of a world society.83
This so-called ˜transnational civil society™ or world society su¬ers, like any
agency of social order be it the family, incorporated association or state, from
problems of authority such as delegated power and majority will. The particu-
lar problem of the world society is that those who participate in the life of the

180
See Boaventura de Sousa Santos, ˜Beyond Neoliberal Governance: The World Social Forum as
Subaltern Cosmopolitan Politics and Legality™ in Santos and Rodríguez-Garavito (eds.), Law
and Globalization, p. 11.
181
Allott, Eunomia, [6.60], [13.105]. See more generally John W. Meyer et al., ˜World Society and
the Nation-State™ in Lechner and Boli (eds.), The Globalization Reader; Alex Y. Seita,
˜Globalization and the Convergence of Values™ (1997) 30 Cornell International Law Journal
429“91; Thomas M. Franck, The Empowered Self: Law and Society in the Age of Individualism
(Oxford: Oxford University Press, 1999), pp. 35“7, 196“223; Harold J. Berman, ˜World Law™
(1995) 18 Fordham International Law Journal 1617“22.
182
June Edmunds and Bryan S. Turner, ˜Global Generations: Social Change in the Twentieth
Century™ (2005) 56 British Journal of Sociology 559“78.
183
Statistics from Union of International Associations, cited in Held and McGrew,
Globalization/Anti-Globalization, pp. 18“19.
42 Towards a Globalist Jurisprudence


myriad non-governmental organisations may be politically ful¬lled, however
the association may be unaccountable to a sovereign, therefore instilling a lack
of democratic legitimacy. For example, the World Trade Organization routinely
makes decisions a¬ecting states, with only the original delegated consent from
those states which rati¬ed the treaty. The United Nations Security Council has
only ¬ve permanent members “ the US, the UK, France, China and Russia “
each with the power of veto. This ˜democratic de¬cit™ will be explored more in
the context of the European Union in chapter 11.
Most importantly, if the world society is to ¬‚ourish, it will need to become
more conscious of its history.84 That consciousness is required for a sense of
purpose born of common historical debates and grievances upon which to
develop and work for common visions for the future. The historical narrative
in chapters 4“10 is a preliminary o¬ering to that consciousness.


2.4 The sphere of containable disruption
Technology is the locomotive of globalisation thought about as interconnec-
tions. The accelerated interconnections of globalisation spurred by changing
technologies bear signi¬cant responsibility for challenging the legal categories
and underpinning the phenomena of globalisation identi¬ed in the previous
sections. There is an obvious connection between technology and the changing
nature of sovereignty which is so implicated in globalisation discourse, which
has always been so. Technology will be managed and exploited by some form
of government “ or, more popularly in the discourse today, governance 85 “
which exists to bring order to a realm or territory. That government manages
to contain disruption. People have always required government of some sort.
They have always lived in territorial ˜survival units™, initially dependent upon
physical strength, collective ¬ghting capacity and weapons, to prevent possible
annihilation or enslavement by another survival unit.86 These units may
be thought of as spheres “ what I term ˜spheres of containable disruption™.
Sovereignty or political power is exercised within these spheres and amongst
other spheres or collective survival units. They are porous, overlapping, always
changing and are key to understanding the geographical reach of legal and nor-
mative systems.

184
See Philip Allott, The Health of Nations: Society and Law Beyond the State (Cambridge:
Cambridge University Press, 2002), ch. 11. For recent initiatives, see Bruce Mazlish and Akira
Iriye (eds.), The Global History Reader (New York: Routlege, 2005); Patrick O™Brien,
˜Historiographical Traditions and Modern Imperatives for the Restoration of Global History™
(2006) 1 Journal of Global History 3“39 inaugurating that journal; the Journal of World History;
and edited collections of A. G. Hopkins (ed.), Global History: Interactions Between the Universal
and the Local (Basingstoke: Palgrave Macmillan, 2006) and Globalization in World History
85
(New York: W. W. Norton & Co., 2002). See ch. 12, section 12.3.2, pp. 291“2 below.
186
The notion of the ˜survival unit™ comes from Norbert Elias, to which reference is made in
Stephen Mennell, ˜The Globalization of Human Society as a Very Long-term Social Process:
Elias™s Theory™ in Featherstone (ed.), Global Culture, p. 360.
43 Globalisation and the World Revolution


2.4.1 Technological influences on sovereignty
The size and reach of these spheres of containable disruption will vary accord-
ing to historic and economic circumstances. A small territory may only have a
small government and may become part of a big territory because it is easily
taken over by another government. Weak states are weak because they lack tech-
nology.87 A big territory will need a stronger, bigger government, in terms of a
combination of human capital, economic power, military apparatus and/or
perhaps tradition.
Government will be challenged to maintain peace on two fronts. First, peace
will depend upon the government™s capacity to maintain some di¬erentiation
of the realm from the outside space and to protect the realm from the outside
forces which may be hostile to the realm, through war and defence. Secondly,
the government will need to maintain peace within the realm by appealing to
the various communal, political groups, typically as a last resort through polic-
ing, but ideally through less coercive notions of ˜legitimacy™ or ˜authority™ which
receive allegiance. Technology is crucial to this function of government, and to
the territorial reach of government “ and the modern state with its notions of
sovereignty. Strategic and constitutional innovations successfully pursued by
one state tend to be copied by competing states such that new forms of legit-
imacy replace older ones88 (for example, monarchy, parliamentary democracy,
federalism, corporatism) rendering governments or ˜governance™ dynamic.
Technology is integral to the threat of invasion of the realm from within or
without. That invasion may be military, economic or normative.89 Military
invasion speaks for itself. Economic invasion comes from the power to o¬er
bene¬ts from outside the sphere, principally through trade. Normative invasion
may be in the form of new ideas, inevitably relating to justice, being spread by
radical movements, internally; or from the outside, by customs of another
realm or state (for example, communism or Protestantism), via cultural media
technology such as the printing press or, more recently, the internet. At these
˜contact zones™, normative systems and jurisdictions meet and produce new
meanings often amidst social dislocation and innovation, in the recognition
and denial of rights to new subjects. This a¬ects, for example, indigenous
peoples, migrant communities, labour movements, as well as establishment
individuals, communities, states and transnational institutions.90 It is not pos-
sible ˜to prevent the members of a society from recognizing what they share and

187
See Martin van Creveld, The Rise and Decline of the State (Cambridge: Cambridge University
Press, 1999), p. 378.
188
See Bobbitt, Shield of Achilles, Book I Part II, for the constitutional movement he charts from
princes to princely states to kingly states to territorial states to state-nations to nation-state
and, in Part III and Book II Part III, from nation-states to market-states.
189
See Johan Galtung, The European Community: A Superpower in the Making (London: George
Allen & Unwin, Ltd, 1973), pp. 33“4; Gianfranco Poggi, The State: Its Nature, Development
and Prospects (Stanford: Stanford University Press, 1990), p. 4.
190
Santos, New Legal Common Sense, pp. 472“4.
44 Towards a Globalist Jurisprudence


do not share with the members of other societies™;91 societies and subcultures
are prone to jealousy. Normative invasion may even use the vehicle of a perme-
ating language such as English92 or the Latin of the Holy Roman Empire.
A number of examples of the historical construction of the sphere of contain-
able disruption, by reference to technology, illustrate the dependence of sover-
eignty on technology. Inadequate maps are said to have in¬‚uenced Napoleon™s
retreat from Moscow.93 The prior technology of ˜precisely demarcated territories™
made possible by developments in cartography was essential to the nation-state.
This re¬‚ects what has been termed the ˜territorialization of social relations™.94
Similarly, the invention of the printing press, and its connection, in the sixteenth
century, of fellow readers into particular language ¬elds, fertilised the nationally
imagined community.95 With such technology may come increased strength
inside the designated sphere of containable disruption, balanced by an external,
opposing threat of military and normative invasion from other spheres.
Historical rights asserted over the sea also illustrate that political power is a
correlate of technology. In the thirteenth century, Venice was the transient sov-
ereign of the Adriatic Sea. In the ¬fteenth century, access to the Atlantic (and
thus to the Americas) was papally divided between Spain and Portugal. In the
eighteenth century, when the sun never set on the British Empire, England
asserted sovereignty only over adjacent seas at a time when no state had the
power or technological advantage to pretend to own the Atlantic, nor a city the
impudence to claim the Adriatic. Beyond the nineteenth century, it became an
acknowledged principle of international law that maritime sovereignty was
limited largely to inland and territorial waters “ de¬ned (upon re¬‚ection, not
surprisingly) in military“technological terms by the three-mile rule “ the reach
of the cannon ball from the shore,96 this being the symbolic technological limit
of the sphere of containable disruption. There appears to be a pattern: as soon
as economics, military power and technology increase power and the ability to
contain disruption within a sphere, an opposing force seems to increase the
ability to disrupt that sphere. Arguably, spying from satellites in space has not
been prohibited under international law because such espionage is outside any
191
Allott, Eunomia, [5.23].
192
See David Crystal, English as a Global Language (Cambridge: Cambridge University Press,
1997). English is native to only 8 percent of the world. Its importance derives from being a
lingua franca, or language of wider communication, amongst people of di¬erent tongues:
93
Huntington, Clash of Civilizations, p. 60. van Creveld, Rise and Decline, p. 144.
194
˜Territorialization™ re¬‚ects a trend from status to locus, accompanying Maine™s model of the
movement from aristocratic status to liberal contract-based society. That is, the strength of
kinship and customary relationships grew into convenient contract-based relationships
featuring a new, shared concept of territoriality: see Richard T. Ford, ˜Law™s Territory (A
History of Jurisdiction)™ (1999) 97 Michigan Law Review 843“930, 845, 872.
195
See Benedict Anderson, Imagined Communities: Re¬‚ections on the Origin and Spread of
Nationalism (London: Verso, 1991), p. 44.
196
See James Muldoon, ˜Who Owns the Sea?™ in Bernhard Klein (ed.), Fictions of the Sea: Critical
Perspectives on the Ocean in British Literature and Culture (Aldershot: Ashgate, 2002),
pp. 14“17; Harvard Law Review Association, ˜Note: National Sovereignty of Outer Space™
(1961) 74 Harvard Law Review 1154“75, 1160“1.
45 Globalisation and the World Revolution


realistic hope of containment, in a way that deployment of spy-planes under
international law is not.97
The system of nation-states had evolved, by the twentieth century, as the par-
adigmatic unit of governance, for the ability of nation-states to be internally
regulating and rigid enough externally on the territorial boundaries to protect
the interior. Alas, later that century, the system of nation-states had collapsed as
monopoly spheres of containable disruption, as part of the process of globali-
sation. The European Union provides a ˜tangible expression™ of the fact that the
modern complexity of economic relationships occurs at a scale too large to be
dealt with by the sphere of the territorial nation-state alone.98 The relatively
pluralist ˜super-sphere™ of the EU has been consolidated from some 150
independent political entities in Europe in 1500, to about 25 in 1900.99 This has
occurred apparently in recognition of the economic ine¬ciency of smaller,
stronger spheres of containable disruption and their tendencies towards mutual
annihilation.


2.4.2 Common heritage of humankind
Further illustrative of the technological construction of sovereignty is the doc-
trine of the common heritage of mankind now more regularly known as the
common heritage of humankind. It also has signi¬cance as a more widely,
potentially useful property concept for global times.
The ˜common heritage of mankind™ is taken from a speech in 1967 by the
Maltese Ambassador, Arvid Pardo, in the UN. It is a term which has been given
to areas beyond the traditional nation-state™s sphere of containable disruption,
such as the ocean ¬‚oor, the moon and Antarctica “ to ˜common space areas . . .
owned by no one, though hypothetically managed by everyone™.100 Ownership
as such is legally absent, re¬‚ecting, although it is arguable, the Roman law
concept of res communis: that states have a right to enjoyment, but not owner-
ship, of the property of the community.101 Consequences attach: ˜the entire area
would be administered by the international community, so all people, exclud-
ing states or national governments, could be expected to share in its manage-
ment; economic bene¬ts should be shared according to management; and uses
would have to be peaceful; and research would have to be shared™.102

197
David B. Goldman, ˜Historical Aspects of Globalization and Law™ in Catherine Dauvergne
(ed.), Jurisprudence for an Interconnected Globe (Aldershot: Ashgate, 2002), pp. 64“5.
198 99
van Creveld, Rise and Decline, p. 385. Poggi, The State, p. 22.
100
Christopher C. Joyner, ˜Legal Implications of the Concept of the Common Heritage of
Mankind™ (1986) 35 International and Comparative Law Quarterly 190“9, 191.
101
See Brian M. Ho¬stadt, ˜Moving the Heavens: Lunar Mining and the “Common Heritage of
Mankind” in the Moon Treaty™ (1994) 42 UCLA Law Review 575“621, 587. The possibility
that states could own materials exploited from the moon, with speci¬c obligations, does
however undermine the res communis rule: see Michael E. Davis and Ricky J. Lee, ˜Twenty
Years After: The Moon Agreement and its Legal Controversies™ (1999) Australian International
102
Law Journal 9“33, 19“20. Joyner, ˜Common Heritage of Mankind™, 191“2.
46 Towards a Globalist Jurisprudence


Concerning the moon, article XI of the Agreement Governing the Activities of
States on the Moon and Other Celestial Bodies (1979)103 seeks to dispel any
prospects of national appropriation by claim of sovereignty or occupation,
requiring equal access to state parties (paragraph 4) and an international regime
(paragraph 5) to govern exploitation. This would not, however, prevent the
international regime from creating property rights and ownership, perhaps
providing for leases and licences for exploitation in a similar way to Australian
domestic mining leases.104
The concept of the common heritage of humankind carries the potential for
the development of community interests at a global level, as opposed to the eco-
nomic and dominant political interests hitherto associated with the inter-
national state system.105


2.4.3 New challenges and new spheres
Terrorism perhaps embodies the most feared challenge associated with globali-
sation. A spectre once again haunts the Western world, having taken the place of
communism. Unlike communism, terrorism is not state sponsored, at least to
any signi¬cant, currently discernible, extent in the wake of September 11 and
apparently kindred attacks, for example, in Madrid and London since. Terrorism
is the ¬rst major non-state initiative which threatens the global order in modern
history. Sympathy has been shown by some anti-globalisation protestors for
Islamic jihad terrorists. Both movements in fact rely upon globalism to gain
adherents. The connection is quite plain: common hostility to Western technol-
ogy and capitalistic decadence, which is thought to undermine traditional ways
of life and increase economic inequality. Conventional political means to disrupt
globalisation appear to be limited, as even states on their own are unable, eco-
nomically, to stem the tide of globalisation and its free-trade economic ideology
within and outside their territories.
To what extent are conventional twentieth-century spheres of containable dis-
ruption threatened? Territorially, jihad terrorism appears weak, but the world
is yet to see the survival value of this ˜global™ terrorism. By contrast, the global
anti-terrorism alliance appears very strong. The power of states, too, has been
strengthened in the aftermath of September 11. The domestic policies, as well as
foreign policies, of Western nations and some traditionally non-Western nations
have become relatively uni¬ed in relation to the terrorist threat. The conse-
quence appears to be greater state surveillance and the prospect of restrictions

103
UN Doc.A/AC.105/L.113/Add.4 (1979).
104
See Davis and Lee, ˜Moon Agreement™, 24“5. On other aspects, see Harminderpal Singh Rana,
˜The “Common Heritage of Mankind” & the Final Frontier: A Revaluation of Values
Constituting the International Legal Regime for Outer Space Activities™ (1994) 26 Rutgers Law
Journal 225“50; Bin Cheng, ˜Outer Void Space: The Reason for this Neologism in Space Law™
(1999) Australian International Law Journal 1“8.
105
See Jos© Manuel Pureza, ˜Uses of International Law™, p. 275.
47 Globalisation and the World Revolution


on civil liberties, particularly for those whose appearances ¬t stereotypes. At the
same time as there is increasing state and terrorist cell interconnection, there is
an increase in state power. Although such paradoxes cannot be overcome, an
understanding of this aspect of globalisation can perhaps be enhanced by
regarding the traditional state spheres of containable disruption as being perfo-
rated and reduced to feudal spheres in search of an empire.
Other new spheres and challenges to old spheres abound. Cross-border risks
in the ¬nance industry demonstrate the di¬culties of containing disruption
within the sphere of the nation-state. For example, despite a state protecting
privately owned domestic banks, it is di¬cult to stop those banks from incur-
ring bad debts with banks of foreign nations, thereby creating the possibility
for great domestic insecurity. The problem arises from tying laws to domestic
actors whilst the risks are beyond those actors. ˜[T]ransnationally mobile civil
society actors™ are di¬cult to regulate.106
Major new spheres in the form of internet communities have appeared. They
subvert territoriality and present challenging regulatory issues to the sphere of
the nation-state. Intangible boundaries such as technological compatibility and
language may compete with state borders,107 together with more palpable juris-
dictional obstacles. For example, a French court ordered American internet
company Yahoo to prevent French internet users from accessing any site on
Yahoo which might contest or apologise for the crimes of Nazism. Should
enforcement of the judgment in the US be attempted, it will likely be refused
there under the First Amendment free-speech protection, notwithstanding a
failed attempt by Yahoo for a pre-emptive declaration.108 A literature is devel-
oping surrounding the regulation of cyberspace including its e¬ect upon
democracy.109
It is worthy of note that the guarantee of peace “ of the life and property of
citizens “ is falling to organisations other than the state. By 1972 in the USA,
private security ¬rms had twice as many employees and 1.5 times the budget of
all local, state and federal police combined; and mercenary soldiers have been
used relatively recently in the developing world, for example in New Guinea and
Sierra Leone.110 Nonetheless, mercenary forces are generally thought to be
illegal as a matter of international law. For how long this will be the case is prob-
lematic, given the increasing reluctance of Western states to incur war casual-
ties. Traditional state spheres of containable disruption may avoid disruption
by importing the means of containment or privatising them.111

106
See Jarrod Wiener, Globalization and the Harmonization of Law (London: Pinter, 1999),
107
pp. 33“4, 188. See Bobbitt, Shield of Achilles, p. 354.
108
Yahoo! Inc. v La Ligue Contra le Racisme et l™Antisemitisme 379 F.3D 1120 (9th Cir. 2004).
109
See Paul Schi¬ Berman, ˜The Globalization of Jurisdiction™ (2002) 151 University of
Pennsylvania Law Review 311“545; Neil Weinstock Netanel, ˜Cyberspace Self-Governance: A
Skeptical View from Democratic Theory™ (2000) 88 California Law Review 395“498.
110
van Creveld, Rise and Decline, pp. 404“5.
111
See P. W. Singer, ˜War, Pro¬ts, and the Vacuum of Law: Privatized Military Firms and
International Law™ (2004) 42 Columbia Journal of Transnational Law 521“49.
48 Towards a Globalist Jurisprudence


Our explorations of the notion of globalisation and subsequent look at how
law has generally been a¬ected might arouse the suspicion that what has gone
on in the twentieth century is revolutionary, although, in the instance of law,
not unprecedented. A globalist jurisprudence for the third millennium must
take heed of this, if it is to respond e¬ectively.


2.5 The ˜World Revolution™ and legal theory
A feeling that the end of the world is nigh “ not just the apprehension of revo-
lution “ appears to be helpful in establishing a new legal order. It happened at
the time of the birth of the Western legal tradition, beyond territorial bound-
aries, in the Papal Revolution of the late eleventh, early twelfth centuries, to
be discussed in chapter 5. The sensation of apocalypse also occurred in the
twentieth-century world wars, on the globalised Megiddo Plains of Europe and
the Asia-Paci¬c. In spite of attempts by jurists in recent centuries ˜to work out
a law of nations, the sovereign states have turned modern Europe into a jungle,
with disastrous consequences for that continent and the world™.112 Globalisation
as a process encompasses the unconscious reactions and the conscious
responses to the cataclysm of this ˜World Revolution™.
The years 1914“89 (the outbreak of World War I to the fall of the Berlin Wall)
contain a period in which the accelerated, tentacular interconnections amongst
things that happen in the world were accomplished from an almost global war.
With associated political calamities, this period through its lethal technology
resulted in 187 million people being killed in conditions of terror “ 10 percent
of the population of 1900.113 Between just 1939 and 1945, 40“60 million people
were killed.114 This ˜string of con¬‚icts . . . destroyed more human beings than
all past convulsions put together™115 in Europe, ˜consisting of two periods of
unprecedented public mass murder punctuated by a period of economic and
social anarchy™,116 together with global phenomena such as environmental
degradation (an ˜ecological holocaust™).117 (Judgements cast from the West
about allegedly uncivilised peoples today, blaming their social problems or vio-
lence upon cultural backwardness, are delusional, given the abysmal failures of
twentieth-century Westerners.)118 To the extent that economic integration is

112
R. C. van Caenegem, An Historical Introduction to Western Constitutional Law (Cambridge:
Cambridge University Press, 1995), p. 30; see too MacCormick, ˜Beyond the Sovereign State™,
17; van Creveld, Rise and Decline, p. 224.
113
Bobbitt, Shield of Achilles, p. 61, quoting Hobsbawm, The Age of Extremes.
114 115
van Creveld, Rise and Decline, p. 257. Davies, Europe, p. 897.
116
Allott, Eunomia, [18.44].
117
Jim Chen, ˜Globalization and Its Losers™ (2000) 9 Minnesota Journal of Global Trade 157“218,
159.
118
Because of the cultural interconnection, technology and luxurious levels of health, wealth and
education of twentieth-century Westerners, it should be no consolation to them that the
percentages of annual population deaths due to war in many tribal societies was greater than
in Germany and Russia in the twentieth century (statistic from Singer, One World, p. 121,
citing Keeley, War Before Civilization).
49 Globalisation and the World Revolution


a key component of the globalisation concept, it must also be recognised as
a conscious response to the human carnage. These events are entwined as
both cause and e¬ect with technological and industrial developments which
have revolutionised the human relationship to time and space associated with
˜globalisation™.
Is the word ˜revolution™ warranted to describe this twentieth-century move-
ment? Historian Norman Davies, amongst others, suggests that the word
˜Revolution™ is overused, as for example ˜the Industrial Revolution™,119 ˜the
Scienti¬c Revolution™, ˜the Sexual Revolution™ and the like. His idea of revolu-
tion is ˜the complete overthrow of a system of government together with its
social, economic and cultural foundations™, resulting in an e¬ect beyond the
nation and ˜far beyond mere politics™.120 Such categorical statements risk being
at semantic if not disciplinary cross-purposes just as ˜globalisation™ can be
thought about as more than just economic globalisation.121 Davies™s de¬nition
seems to assume the French Revolution as a benchmark. Harold Berman, fol-
lowing Eugen Rosenstock-Huessy, convincingly suggests six great Western rev-
olutions “ the Papal, the Protestant, the English, the French, the American and
the Russian “ which appear to meet most of the criteria of Davies. These
˜national™ revolutions were of ˜international™ e¬ect as their ideas spread across
territories like nuclear fallout, yet their legal traditions survived with doctrinal
modi¬cations to re¬‚ect the new politics.122 At the intuitive level, there was a
World Revolution in the twentieth century. Even on Davies™s stringent criteria,
a World Revolution can be accepted “ there was an overthrow of a system of
government conceived in terms of exclusive sovereign statehood.
Still maintained, through this revolution, as through the great Western
national revolutions, were patterns of law and authority seen since the twelfth
century, grounding the legal order in fundamental concepts of ultimate reality
and meaning with a professional science of law collection, exposition and
application. Demonstrative of this ultimate reality and meaning is a concept
of time and divinity which gives purpose to law. The Papal Revolution of
Gregory VII was imbued with a Christian view of time, seeking to establish the

119
That there has recently been an information technology revolution associated with globalisation
seems justi¬ed if one accepts, as many historians do, that there were industrial revolutions in
the eighteenth and nineteenth centuries: see Manuel Castells, The Information Age: Economy,
Society and Culture, 3 vols. (Malden & Oxford: Blackwell Publishers, 1996), vol. I, The Rise of the
120 121
Network Society, ch. 1. Davies, Europe, p. 675. See section 2.1.3, p. 31 above.
122
See Berman, Law and Revolution, pp. 5, 24“5. Cf. H. Patrick Glenn, ˜Law, Revolution and
Rights™ in Werner Maihofer and Gerhard Sprenger (eds.), Revolution and Human Rights,
Proceedings of the 14th IVR World Congress, Edinburgh, 1989 (Stuttgart: Franz Steiner Verlag,
1990), p. 11; Alan Watson, The Evolution of Western Private Law (Baltimore: The Johns
Hopkins University Press, expanded edn 2001), pp. 226“30. The natural lawfulness of the
innovation takes precedence over the political illegality of the revolution as part of a cyclical
process which restores some aspects of pre-revolutionary life: see Eugen Rosenstock-Huessy,
Out of Revolution: Autobiography of Western Man (Providence and Oxford: Berg, 1993),
pp. 188, 342 ¬. For the classic idea of revolution as a circular motion or return, see Polybius,
The Rise of the Roman Empire, trans. Ian Scott Kilvert (Harmondworth: Penguin, 1979), p. 350.
50 Towards a Globalist Jurisprudence


conditions for the millennial rule of Christ on earth,123 with law a means to
improve society, in e¬ect to ˜bring on the Messiah™. This was in the context of
one God, and numerous dispersed markets throughout Europe, authorising
law. In contrast, the conception of time and progress underlying the World
Revolution was a belief in unlimited progress “ a belief which, according to
Ernst Kantorowicz, was cherished by the generations preceding the two world
wars.124 More cherished if not coveted than ever, time is now to be consumed,
with more and more consuming activity to be packed into less and less time.
This is in pursuit of a progress which seems intent upon the very achievement
of more progress measured by speed and consumption, checked primarily by
environmentalism, human rights discourses and community groups concerned
about family life. Speed is the new virtue, discussed with relevant recommen-
dations for contemporary legal education by way of conclusion in chapter 13.
This occurs in the context of one market and many di¬erent types of gods and
religions girding the authority of law today. Legal theory must evaluate this
transformation and the optimum role for law in the new context.
That so many tens of millions of people have died not just in wars but at the
hands of their societies in the twentieth century “ through consciously articu-
lated norms and laws (the two most populous nations of Europe killed more
tens of millions of people through murderous political regimes than their wars

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