The Globalization of International Law

PaulSchiff Berman, PaulSchiff Berman, Paul Schiff Berman

• Publisher: Routledge
• Year: 2017
• Print ISBN: 9780754624127
• eBook ISBN: 9781351543965
• Topic: History
• Subtopic: International Law
• Index: History

'International law' is no longer a sufficient rubric to describe the complexities of law in an era of globalization. Accordingly, this collection situates cross-border norm development at the intersection of interdisciplinary scholarship on comparative law, conflict of laws, civil procedure, cyberlaw, legal pluralism and the cultural analysis of law, as well as traditional international law. It provides a broad range of seminal articles on transnational law-making, governmental and non-governmental networks, judicial influence and cooperation across borders, the dialectical relationships among national, international and non-state legal norms, and the possibilities of 'bottom-up' and plural law-making processes. The introduction situates these articles within the framework of law and globalization and suggests four important ways in which such a framework enlarges the traditional focus of international law. This book, therefore, provides a crucial reference for scholars and practitioners seeking to understand the varied processes of norm development in the emerging global legal order.

PART I
The Multiplicity of Normative Communities

1
The Folktales of Justice

Tales of Jurisdiction^*

Professor Robert M. Cover^**

I Introduction

The word “law” resonates richly in the language and mythology of western civilization. H.L.A. Hart began his great work, The Concept of Law, with an inquiry into the persistence of the question “what is law?” in our jurisprudence.¹ He argued that it is strange that such an apparently elementary question has persisted in jurisprudence while no analogous question such as “What is chemistry?” has occupied other areas of human inquiry.² Hart’s answer to his own question is, in some sense, the book, itself. He stresses and illuminates the analytic perplexities that constitute the deep structure of our concept of law. But there is an historical and political answer to Hart’s question which may be more to the point. The literature on the question “what is law?” is voluminous and continues to grow not because there are analytic difficulties in our conceptual apparatus—our categories—in this field. There are, indeed, such difficulties, but they are no greater than analogous problems in the categories of the sciences. In the sciences, however, the illumination of a deep structural ambiguity hitherto uncaptured by the “chemistry” paradigm does not lead to another round in a perpetual argument over “what is chemistry” but to the creation of new fields like “biochemistry” or “molecular biology.” The new fields take as their standard cases the problematic case for “chemistry.” The label itself is not the object of controversy.

A label may be the object of controversy, however, if the question is not “what is chemistry?”, but rather, “what is science?”³ For the word “science” is a heavily loaded one, freighted with normative significance. If one is doing “science”—which may or may not be chemistry—then the legitimacy of the enterprise is not in question, only the appropriate administrative label. Such labels are matters of convenience. But if one is not doing science at all, then the charge is that the enterprise itself is outside the scope of legitimate inquiry for a certain sort of truth.⁴

The word “law”, itself, is always a primary object of contention. People argue and fight over “what is law” because the very term is a valuable resource in the enterprises that lead people to think and talk about law in the first place. “Law” evokes the law given on Sinai, Solon’s legislative enterprise, Kant’s categorical imperative. On a political level, it connotes legitimacy in the exercise of coercion and in the organization of authority and privilege.⁵ On a philosophical plane it connotes universality and objectivity. Legal positivism may be seen, in one sense, as a massive effort that has gone on in a self-conscious way for over two centuries to strip the word “law” of these resonances.⁶ But the sacred narratives of our world doom the positivist enterprise to failure, or, at best, to only imperfect success.⁷

Historicist and analytic debunking of “law” have, indeed, rendered the term problematic. There is now a counter-resonance. For law has also come to suggest the mask of privilege.⁸ Nonetheless, the very meaning of law as an effective mask or ideology would be lost were the word to lose its primary mythic resonances⁹. The struggle over what is “law” is then a struggle over which social patterns can plausibly be coated with a veneer which changes the very nature of that which it covers up. There is not automatic legitimation of an institution by calling it or what it produces “law”, but the label is a move, the staking out of a position in the complex social game of legitimation. The jurisprudential inquiry into the question “what is law” is an engagement at one remove in the struggle over what is legitimate.¹⁰

I have recently staked out a position about the nature of law that has obvious and consciously chosen political significance.¹¹ My position is very close to a classical anarchist one—with anarchy understood to mean the absence of rulers, not the absence of law. Law, I argued, is a bridge in normative space connecting [our understanding of] the “world-that-is” (including the norms that ‘govern’ and the gap between those norms and the present behavior of all actors) with our projections of alternative “worlds-that-might-be” (including alternative norms that might ‘govern’ and alternative juxtapositions of imagined actions with those imagined systems of norms.¹² In this theory, law is neither to be wholly identified with the understanding of the present state of affairs nor with the imagined alternatives. It is the bridge—the committed social behavior which constitutes the way a group of people will attempt to get from here to there. Law connects “reality” to alternity¹³ constituting a new reality with a bridge built out of committed social behavior. Thus, visions of the future are more or less strongly determinative of the bridge which is “law” depending upon the commitment and social organization of the people who hold them.

The above is not a definition of law; it is a plea to understand the legitimating force of the term in a certain way. It is a plea to grant all collective behavior entailing systematic understandings of our commitments to future worlds equal claim to the word “law”. The upshot of such a claim, of course, is to deny to the nation state any special status for the collective behavior of its officials or for their systematic understandings of some special set of “governing” norms.¹⁴ The status of such “official” behavior and “official” norms is not denied the dignity of “law.” But it must share the dignity with thousands of other social understandings. In each case the question of what is law and for whom is a question of fact about what certain communities believe and with what commitments to those beliefs. The organized behavior of other groups and the commitments of actors within them have as sound a claim to the word “law” as does the behavior of state officials. The most important consequence of this radical relativization of law is that violence—a special problem in the analysis of any community’s commitments to its future—must be viewed as problematic in much the same way whether it is being carried out by order of a federal district judge, a mafioso or a corporate vice-president.¹⁵

I have argued not only that the nature of law is a bridge to the future, but also that each community builds its bridges iwth the materials of sacred narrative that take as their subject much more than what is commonly conceived as the “legal.” The only way to segregate the legally relevant narrative from the general domain of sacred texts would be to trivialize the “legal” into a specialized subset of business or bureaucratic transactions.¹⁶

The commitments that are the material of our bridges to the future are learned and expressed through sacred stories. Paradigmatic gestures are rehearsed in them. Thus, the claim to a “law” is a claim as well to an understanding of a literature and a tradition. It doesn’t matter how large the literature or how old the tradition. Sinai might have been yesterday or four thousand years ago; the text might be two tablets or the infinity of Borges’ library of Babel.¹⁷

In my earlier work on this subject, I considered primarily the commitments and narratives of those communities who would make a law for themselves apart from that of the State. I believed and still believe that that emphasis is a necessary corrective to the imbalanced character of almost all contemporary legal theory. Nonetheless, I did consider briefly the commitments that are implicit in the assumption of jurisdiction by official judges of the state.¹⁸ In that section of my earlier work I criticized most jurisdictional reasoning as largely apologetic, state-serving enterprises. I did conclude, however, with the following, undeveloped thought:

It is possible to conceive of a natural law of jurisdiction. . . . In elaborating such a law . . . a judge might appeal to narratives of judicial resistance. . . . He might thus defend his own authority to sit in judgment over those who exercise extralegal violence in the name of the state. In a truly violent, authoritarian situation, nothing is more revolutionary than the insistence of a judge that he exercises such a “jurisdiction”—but only if that jurisdiction implies the articulation of legal principle according to an independent hermeneutic. . . .

Such a hermeneutic of jurisdiction [texts], however, is risky. It entails commitment to a struggle, the outcome of which—moral and physical—is always uncertain.¹⁹

In this article, I take up the task of elaborating on the idea that there are sacred narratives of jurisdiction that might constitute the texts to ground judicial commitments. In part II, I shall consider one category of such texts—the resistance to “Kings”. In Part III, I shall consider another, more problematic category—bringing the Messiah. Part II treats of the minimal aspirations of our myths for autonomous “law.” Part III treats of the place of law in more comprehensive Utopian reorderings of the world.

II. Of Judges and Kings

Leonard Koppett once wrote that the most important single fact about hitting a baseball and the one least mentioned explicitly is fear.²⁰ There is in the archetype of an upright judge—as there is in the upright batter—an important element of having conquered a fear, a fear which is always present yet almost forgotten. To understand that fear and its significance we must tell the stories that remember the fear and rehearse the gestures we make in response to it.

There is in the Talmud, tractate Sanhedrin, a fascinating account. The law in the Talmud (Mishneh) seems clear: “The king does not judge and we do not judge him.”²¹ This rule appears to state a not unexpected norm of sovereign immunity and a perhaps unexpected norm of sovereign judicial incapacity. The rule was enunciated almost two thousand years ago and it will, as we shall explore, perhaps ring some bells concerning English law in the seventeenth century.²² In any event, the Talmud, having stated the rule in question, asks about its origin. Let me quote the answer in full:

But why this prohibition? Because of an incident which happened with a slave (servant) of King Yannai, who killed a man. Simeon b. Shetah (head of Sanhedrin) said to the court of sages: Be bold and let us judge him. They sent for the king saying, your slave killed a man. The King sent the slave to them. They sent to the King saying you must appear with him. He appeared but sat down before the court. Then Simeon b. Shetah said, Stand on your feet, King Yannai, so witnesses may testify against thee. For you do not stand before us but before He who spoke and the World was created. The King replied, ‘I will not act by your word but upon the words of the court as a whole. He then turned to the left and to the right, but all looked at the ground. Then Simeon said, Are you wrapped in thought? Let the Master of thoughts come and call you to account. Instantly, Gabriel came and smote them all and they died. Then it was enacted: The King may neither judge nor be judged, testify nor be testified against.²³

What, we might ask, are we to make of this fabulous tale of a not altogether unreasonable king, a courageous, perhaps foolhardly and somewhat inflexible judge, and the Angel Gabriel? It seems clear enough that the taleteller and the redactor of the text consider it both a cautionary tale and a celebration of courage. Simeon b. Shetah is the hero....

Table of contents

• Cover Page
• Title Page
• Copyright Page
• Contents
• The International Library of Essays on Globalization and Law
• Acknowledgements
• Series Preface
• Introduction*
• PART I The Multiplicity of Normative Communities
• PART II Problems of Geographical Borders
• PART III The Relationship Between the National and the International
• PART IV The Role of Transnational Governmental and Non-Governmental Actors
• Name Index