Globalisation and the Rule of Law

Spencer Zifcak

• Publisher: Routledge
• Year: 2004
• ISBN:
  9781134339464
• Edition: 1
• Topic: Politique et relations internationales
• Subtopic: Politique

Globalisation and the Rule of Law reassesses the idea of the 'rule of law' within the present complex and increasingly internationalized environment. There have been many books studying the phenomenon of globalization and its economic, social or cultural consequences. This book, however, is the first to relate globalization exclusively to law. It examines the impact of globalization upon the rule of law, a fundamental value within liberal democratic sovereign states. The book opens with three chapters discussing the theory of the rule of law and its necessary reconceptualization in a global environment. Then, in three sections considering global trade, security and human rights, it proposes new ways of thinking about global law and its application in new and existing institutions of global governance. Contributors include top-flight academics, politicians and judges, making this book significant and relevant in both jurisprudential theory and political practice.

Part I

From theory to practice

1 Reconceiving the rule of law for a globalizing world

Charles Sampford

Introduction

Strong sovereign nation states emerged in seventeenth century Europe, sweeping aside the previous untidy patchwork of feudal cities, principalities, and empires that, together with guilds and the church, had governed European life for a millennium. After the Treaty of Westphalia ended the Thirty Years War in 1648, ‘[a]n international structure composed of a hierarchy of emperor, kings, princes, and cities was replaced with one composed of many formally-independent and formally-equal states’.¹ The nation-state was welcomed as a solution to the chaos that had followed the break-up of the mediaeval order when religious and trade schisms (or religious schisms and trade) had overflowed across traditional boundaries and submerged them.² Although these nation states were highly authoritarian, their theoretical champions – writers like Jean Bodin, Jean-Jacques Burlamaqui, Thomas Hobbes, and Samuel Pufendorf- applauded and justified them for that very reason. When life was ‘poor, nasty, brutish, and short’ ³ due to civil war, banditry or religious zealotry, a rational man [sic] would happily choose to submit without complaint to a government strong enough to keep the peace by whatever means necessary. Modest and minimalist as it was, the Westphalian bargain was observed within Europe – both ‘horizontally’ among different nations’ governments and ‘vertically’ between each government and its citizens – for almost three centuries.⁴

Once life and civil peace were secure, citizens began to expect more from their states. The eighteenth-century North Atlantic Enlightenment⁵ sought to civilize these authoritarian states by holding them to a set of more refined and ambitious values – notably liberty, equality, citizenship, human rights, democracy and the rule of law. These values were necessary, not for bare survival, but for comfortable, civilized, and dignified existence.⁶ Nineteenth-century thinkers extended the range of rights championed, for example, adding concern for environment and for practical and social equality. By the mid-twentieth century, disputes had moved on to the interpretation and ranking of those rights – especially between civil and political rights and social and economic rights.

Ideals are not self-implementing, especially ideals that aim for a better society. They require institutions to realize them. If the font of new ideas was located in the Atlantic nations of Scotland and France, the centre of gravity for institutional innovation was the eastern seaboard of the United States. Initially, the early European philosophers – apart from a few who wanted to copy English constitutionalism – simply proposed institutions modelled on the monarchical states most familiar to them.⁷ Enlightened despotism, of course, requires a despot, so philosophers like Voltaire and Diderot pinned their hopes in turn on Frederick the Great in Prussia, then Peter and Catherine the Great in Russia, and finally Napoleon in France. But these despots and their institutions, too, eventually dissolved into chaos and violence.⁸

While superficially the US Constitution may seem simply to have ‘frozen’ key elements of the 1776-87 British constitution⁹ (as famously misdescribed by Montesquieu),¹⁰ its most distinctive features – federalism, a constitutionally entrenched court, a states’ upper house, legislative ratification of treaties, and various other ‘checks and balances’ – were important innovations, and have often been copied. It was only in the nineteenth century that Europe began generating institutional innovations of its own: responsible parliamentary government, the welfare state, and accountability mechanisms such as the administrative tribunal and the ombudsman.

However, a series of recent trends, popularly labelled ‘globalization’, have challenged these values, primarily by challenging the power of nation state institutions which are currently the only feasible means for upholding these values. I eschew the two most common responses – (1) abandoning whatever values cannot be realized by global or transnational institutions, (2) clinging to the nation-state as the only possible way of preserving these values. Rather, I advocate a third way, namely reconceiving liberal democratic values, and reinstitutionalizing them for a global world, calls for nothing less than a new enlightenment. Such a global enlightenment should aim to civilize the increasingly harsh global economy, just as the eighteenth-century enlightenment began the process of civilizing the absolutist post-Westphalian states. Of all these values, the rule of law is primary.¹¹

So what exactly does the rule of law require within, and among, sovereign states? What are its implications, foreign and domestic? Most writers today agree that the rule of law can be defined widely or narrowly, depending on how many liberal-democratic values are read into the concept. Certainly there are difficulties in applying it to a wider sphere than the nation-state. Indeed, many argue that, therefore, the rule of law cannot meaningfully exist in the international arena, where there is no ‘common sovereign power’. But these objections are, at most, only arguments for modifying the concept. Almost all the reasons why we value the domestic rule of law are also reasons for working towards an international rule of law.

The enlightenment and the rule of law

The sovereign nation-state was a response to the chaos of the early seventeenth century. Pre-Elizabethan England and Reformation France caught brief glimpses of that chaos. Germany suffered the full brunt during the Thirty Years War, while England looked into the abyss during its 1640s Civil War almost falling into what Hobbes saw as the ultimate chaos – a state of nature. The only solution was an unquestioned sovereign, a ‘Leviathan’, powerful enough to impose order on what would otherwise be a factionalized, violent, self-destructive rabble. Hobbes argued that individuals in a state of nature would freely consent to subject themselves unconditionally to such a sovereign power because the alternative was too terrible to contemplate.

The parties to Hobbes’ social contract were individuals in the lawless state of nature. The sovereign was established by the social contract, but was not party to it. The sovereign's will would rule and, although it was prudent to express this will in the form of laws proclaimed for the subjects, the law did not bind on the sovereign itself. Hobbes’ conception of the law as command left no room for the commander being bound. Locke, however, subsequently insisted that the sovereign was also a party to the contract, and also bound by laws made under it. For him, the supreme ruler was ‘bound to govern by established standing laws, promulgated and known to the people’.¹² A sovereign who broke the agreement could be brought to account by his/her subjects, through the people's right to revolt. The enforcement mechanism was much cruder and lacked the sophistication of later means of securing accountability (namely the courts and ballot-box). Nevertheless, it did offer a means of ensuring that government officials, right up to the sovereign itself, obeyed the law (or at least did not flagrantly disregard it).

Late seventeenth-century Europe was governed by many absolute monarchs. Several of them based their legitimacy on having imposed order on chaotic states – none more effectively than Louis XIV. The philosophers of eighteenth-century France were much taken by Locke's analysis, and the rule of law was, arguably, the first enlightenment value they propounded and demanded – looking to England as the model. Official behavior had to conform to rules external to the officials themselves and interpreted by courts not subject to direct sovereign control.

By the end of the eighteenth century, other enlightenment values had been asserted. Some of them demanded that the content of the laws secure individual liberty, equality and the ‘Rights of Man’.¹³ Enlightenment thinkers also re-examined who should make the laws (namely a democratic assembly) and, most important of all, who comprised the state (all citizens). These largely superseded Locke's right to revolt because it enabled the people to rid themselves of oppressive laws and rulers by lawful, peaceful, and orderly means. It also produced a Feuer-bachian reversal of the relationship between the state and its people. Individuals no longer had to justify themselves to the state as loyal and obedient subjects of their sovereigns. Rather, the governments of sovereign states had to justify themselves to their citizens.

This story offers some important parallels and contrasts for contemporary international rule of law. In the late seventeenth century, while modern states were being formed and sovereigns were imposing their will on their subjects, philosophers like Hobbes were devising useful creation myths about social contracts. But externally, states were still in a state of nature with each other.¹⁴ Such international law as existed was a matter of contract and custom rather than binding law. The Treaty of Westphalia was a pact between independent and equal states who recognized themselves as such (and, in one of its most important provisions, recognized the United Dutch Provinces). It also provided one of the key foundations of customary international law.¹⁵

It is ironic that while Hobbes was telling his tale about individual citizens contracting to create a constitution and laws, their rulers (governments/states) were in fact contracting with each other. International law was almost entirely composed of these contracts – that is, treaties – and it noticeably lacked a constitution. The content of these treaties was limited to the few matters on which trans-state agreement could be reached. They did not set up any sovereign to police them nor did they create enforcement mechanisms to replace self-help (one of the factors Hobbes saw as contributing to the state of nature). Further, the bargaining positions of states were fundamentally different to those of individuals in a state of nature. As H.L.A. Hart emphasized, the conditions that Hume identified for the establishment of laws – relative scarcity of resources, and vulnerability of individual humans – do not exist in international law.¹⁶ However, the relative vulnerability of states and the normal inability of anyone (between Rome and post-Cold War USA) to dominate the rest was a critical factor in the development of such international law. Had one of these states possessed enough power to establish dominion over the others, a different system would have emerged – one of Empire, instead of equal sovereign states subject to weak international law. In Hobbes’ day, one power did indeed claim the nominal title of Empire, and an alliance with Spain, enriched by its new colonies, gave the Holy Roman Empire a chance to give the title real power. But the defeat of that alliance (before Italian-inspired fortifications were built by the Dutch) led Spain and the Emperor to accept the Westphalian settlement.¹⁷

As a result, international law was even more minimalist and incomplete than the minimal states that are today's neo-liberal ideal and were the early enlightenment reality. Many wondered if international law should even be called ‘law’ – especially as the strength of domestic law of sovereign states increased and became the paradigm for law, and the capacity for enforcement came to be seen as crucial to the definition of law.

International relations and warfare, however, were not subject to the rule of law. Until the twentieth century, their content reflected very few enlightenment values. But that the application of the rule of law, the primary enlightenment value, should extend to international law – it is as urgent now as it was in the new sovereign states of pre-enlightenment Europe. Although it would be highly desirable if the other enlightenment values were also incorporated into international law, the rule of law's inclusion should still be an independent priority to be pursued with utmost vigor. Before making this argument, however, I shall consider the rule of law as a value within sovereign states, that is, the ‘domestic rule of law’ by way of introduction.

Jurisprudence of the domestic rule of law

Before launching into a reconception of the rule of law for a world largely without strong sovereign states, let us consider the various definitions of the rule of law proposed, in and for, strong sovereign states.

‘Rule of laws, not men’

One of the simplest and most enduring versions of the idea of the rule of law centres on an evocative but impossible ideal: ‘the rule [or government] of law[s], not the rule of men’ (or of women, or indeed of any fallible mortals).¹⁸ Taken literally, this is nonsense. Laws are not and cannot be self-creating or self-enforcing edicts. Unlike the laws of gravity or thermodynamics, they need human beings to create, interpret and enforce them. A more feasible meaning for this ideal is that all humans (especially officials of the state) are subject to law. Sovereign authorities rule through human beings, but the rule of law ensures that the process is, as far as possible, channelled through the means of rule making and attempts at faithful rule implementation. In other words, it ensures that individual citizens have a fair warning before they break a law and a fair hearing afterwards. They are not simply punished without any (or with insufficient) regard to the laws at the time they acted.

Joseph Raz thought that this was crucial to the nature of law itself. He saw law as a two-stage decision-making process, where rules are first made by the legislature and then interpreted by the executive and judiciary. Ideally, the officials applying the law at both stages view themselves as part of an enterprise in which the state has attempted to make rules that guide citizens; therefore, officials conscientiously seek to draw their own reasons for decision from these rules. There are, of course, imperfections in the way rules are made and interpreted, but those who are involved in both stages of the process still endeavor to be true to their ideal function. This does not mean that judges can pretend that the answer is always clearly, unequivocally and uncontroversially found ‘in’ the rules that have been made at the first stage, nor that there is no creative role. What Raz means is simply this: it is not the judge's role to think, afresh, what the right answer should be, but to find the right answer already determined – or at least bounded – by the rules set ...