Together with the launch of the Transnational Legal Theory journal, Hart publishing continues its efforts in this area with the publication of Theorising the Global Legal Order (TGLO), an edited volume of conference proceedings, and Ordering Pluralism: A Conceptual Framework for Understanding the Transnational Legal World (OP), a monograph by Mireille Delmas-Marty and translated from the French by Naomi Norberg. Both works are concerned with the broad question of how to conceptualise the transnational legal world and to address, in the words of TGLO editors Andrew Halpin and Volker Roeben, “the paucity of theoretical underpinning for the development of law as an academic discipline into the broader territory that current global trends now present” (TGLO p. 1).
The “current global trends” referred to include a wide array of distinct but related developments generally captured under the header of globalisation. Central among these are: the massive proliferation of norms which are non-national in origin (sub-national, non-national, regional and global); the increasing prominence of informal norms and private actors engaged in the practice of rule-making (visible in, among other phenomena, the new lex mercatoria, the broad range of technical standards and sectorial guidelines developed by non-governmental organisations and the increased recognition of cultural and religious norms at both sub- and supra-national levels); the strong sense of interdependence in policy areas showing high degrees of integration and interpenetration (primarily in the realm of trade, finance and industry) and, finally, the increasing prominence played by formal institutions of regional and global governance (the European Union, the World Trade Organization, and so forth).
This plurality of formal and informal normative systems, at both the national and the sub-national level, create a range of practical and theoretical problems. On the practical side, the majority of the contributions in TGLO focus on the challenges of legal regulation in a globalised world, where norms are fragmented and policy issues are often transnational in nature, thus requiring both legal and political co-operation beyond the level of national law. Within this broad ambit, however, the areas of focus are quite diverse. Ko Hasegawa focuses on the mechanisms and social systems involved in the “translation” of legal ideas from one national context to the next, focussing on problems of translatability, incommensurability and continuity, marrying traditional concerns of comparative lawyers with insights drawn from philosophical hermeneutics and linguistics. Stephen Allen offers an instructive description of the development of an international regime – the UN Declaration of Indigenous Rights – and charts the various legal and political power struggles that have gone into (and continue to characterise) the recognition of indigenous rights in the international community.
Catherine Dupré discusses the increasing frequency within judicial decisions of references to non-binding comparative and foreign legal sources, and discusses the various rationales for such practices in light of requirements of transparency, accountability and fairness. Christian Walter, similarly, discusses such practices with specific reference to constitutional courts and the possibility of “constitutionalising” transnational legal relations by means of judicial dialogue. Both authors are sceptical about the value of these practices, commenting on the often unsystematic and haphazard nature of such references. Other topics include problems of harmonisation, enforcement and coordination in the context of specific transnational regimes, e.g. global economic order (Ari Afilalo and Denis Patterson), enforcement issues pertaining to discrepancy in rules of evidence in EC competition law (Déirdre Dwyer) and the challenges of treating the European Union as a Single Working-Living space in light of partial and varying degrees of harmonisation across different policy areas (Oxana Golynker).
Taken together these case studies provide an instructive example of the difficulties arising from normative pluralism at the transnational level. However, the scope of the issues covered is quite broad, and the challenge lies in tying the insights together to make some general claims about the possibility of “theorising the global legal order”. The editor's introduction is helpful in this regard by identifying a number of core theoretical issues which bring together the somewhat disparate topics arising from the case studies: the transmission of law across boundaries along horizontal, vertical, consensual and non-consensual dimensions; difficulties arising from movements towards harmonisation of law, particularly striking a balance between conformity at the global level and specificity and contextual sensitivity at the local level; the “creative impulse in global law”, leading us to challenge deeply held assumptions about (in particular) conventional sources of law and political authority and, finally, the “task of finding a common language in which to discuss greater convergence and to argue over present discord, among different legal provisions and perspectives found within the societies of the world” (TGLO p. 6).
However, the most stimulating articles are the theoretical reflections by Patrick Glenn, William Twining and Stefan Oeter. Rather than offering highly developed substantive theories of their own, all articles focus instead on offering some general critiques of the type of theory and methodology that has typically characterised academic legal thought. In many ways, their arguments are an extension of earlier “formalist” critiques of legal theory. The unfortunate by-product of formalist thought, as pointed out repeatedly by legal realism and various strands of critical and socio-legal studies over the years, is that theoretically inclined lawyers tend to tailor the facts to their theories rather than the other way around. More than in most other disciplines, this has lead lawyers to reify and elevate conceptual schemes based on the state as an autonomous and self-contained legal, political and social unit. William Twining's provocative contribution discusses the central features of the “Country and Western” tradition, and concludes that “academic legal culture in the twentieth century has tended to be state-oriented, secular, positivist, ‘top-down’, North-centric, unempirical, universalist in respect of morals, and rather parochial, even ethnocentric, in respect of focus, audience, sources and perspectives” (TGLO p. 53).
Thus, if one tries to theorise the “global legal order” we will soon find that, at best, abstractions revolving around the primacy of the nation-state have little explanatory value and, at worst, are gross and dangerous distortions of the actual legal mechanisms at work. In the place of the ordered universe of hierarchical state authority we are plunged into the murky waters of “networks”, “assemblages” and “bricolages” in which authority is “polycentric”, the state is “disaggregated” and in which the orientation of norms and rule-making authority is “horizontal” rather than “vertical”. In this vein, Stefan Oeter – offering an institutionalist approach to theorising the global legal order according to the insights of International Relations theory – calls attention to the importance of “analytically dissecting the state into its parts and parcels, into the myriads of special bureaucracies, agencies, regulators and individual actors forming the cluster of public authorities that we usually call the state” (TGLO p. 73). Patrick Glenn also argues for a more “cosmopolitan” approach to law which “which effectively resists closure or reification of human groups, or concepts of groups” (TGLO p. 33) and approvingly refers to principles such as the European Court of Human Rights' understanding of the “margin of appreciation” which “is an example of multivalent, as opposed to binary, logic” (TGLO p. 35).
Although provocative, the project of “theorising the global order” is approached primarily in a programmatic sense. The emphasis is more on showing why existing modes of thinking are inadequate than constructing viable alternatives. This is due in part to the constraints of length and scope of a conference volume. But more significantly, the works under consideration consider the very project of an overly specific, “thick” theory of legal phenomena to be misguided. As Glenn puts it: “[c]osmopolitan lawyers are not, and cannot be, committed to a single, universalizing theory” (TGLO p. 37). This is particularly evident in Delmas-Marty's Ordering Pluralism.
Despite setting itself the ambitious task of advancing a conceptual framework for understanding the transnational legal world, the result is more of a programmatic and exploratory nature. The driving force behind the work is the tension between on the one hand, the need for common transnational and global legal standards to effectively tackle the problems of globalisation (the economy, the environment, human rights, terrorism) and, on the other hand, the need to achieve such common standards in a way which is both efficacious and respectful of national and regional difference. In other words, Delmas-Marty seeks to construct a model which will allow for normative integration without a top-down, unilateral imposition of norms by supranational bodies or hegemonic states.
To this end Delmas-Marty identifies three main “logics” of integration: coordination through cross-references (e.g. engaging with different normative systems through judicial decisions), harmonisation by rapprochement (e.g. the many harmonisation initiatives adopted by regional organisations, most notably the EU) and unification through hybridization (such as the creation of international criminal tribunals which adopt elements from various criminal justice systems without being wholly a reflection of any one system). Part two contains a discussion of the central features of the many forms of regional and global organisation in today's world, while part three notes that integration through regional organisations and treaty regimes often needs to pay attention to time-scales, transition speeds and medium and long term ‘itineraries of convergence’.
The discussion is admirably complemented by abundant references to case law, policy discussions and historical illustrations of processes of normative integration. Delmas-Marty argues eloquently for the need for discretion, balance, inclusion and contextual sensitivity in the implementation of transnational legal regimes. However, in line with the more theoretical sections of TGLO, the actual theory on offer is again of a programmatic rather than substantive character. The most concrete recommendations in fact build on existing mechanisms such as the margin of appreciation, the principle of subsidiarity and frameworks for “differentiated responsibilities” as guiding examples. Although both works make a convincing case that such principles are at present the most normatively appealing avenues through which to approach problems of normative integration, it is generally acknowledged that such principles are neither unambiguous nor uncontroversial, and they hardly amount to a full-fledged theory (a fact amply demonstrated by the practical experience with such principles within the EU). They are just that: “principles”, and the concern in both volumes is whether the authors succeed in moving from mere principles to actual theories. Taken together, both works provide a rich and wide-ranging illustration of why the transnational legal world stands in need of its own body of theory that is distinct from more traditional approaches built upon the distinction between municipal state law and public international law. In itself, this is a welcome and constructive contribution to the development of the field of transnational legal theory. Nevertheless, if the reader is looking for a grand, over-arching theory of the transnational legal world, these works are likely to disappoint. However, as the various authors plausibly argue, such theories may have only a modest role to play in the complex world of globalisation in the first place.
