Given the comprehensive body of literature on globalisation which has appeared over the last two decades, together with the frequent claim that globalisation is a social force of such magnitude that it forces us to rethink the basic categories of legal, political and economic thought, it seems amply justified to consider what – if anything – globalisation has to say to the philosophy of law (or vice versa). Such, at least, are the lofty ambitions of two recently published volumes dealing with globalisation and the philosophy of law, Between Complexity of Law and Lack of Order/Philosophy of Law in the Era of Globalization and Multicentrism as an Emerging Paradigm in Legal Theory (hereafter: BCLLO and MEPLT).

The penchant of globalisation discourse for superlative and hyperbole says something about the alleged nature of globalisation as a phenomenon of interest for observers of the social world. It is not merely an interesting piece of data, an additional puzzle waiting to be tackled by a scientific community. Rather, globalisation is a revolutionary phenomenon, in the Kuhnian sense. To understand globalisation, so the argument goes, we cannot simply apply existing concepts to the relevant facts. Instead, globalisation compels us to review our conceptual vocabulary, to devise novel concepts for what are essentially novel developments. This certainly seems to be what the editors of these volumes had in mind.

The discourse of paradigm shift is pervasive at various points throughout both of the present volumes, e.g. “it is counterproductive to cling to the state state-centered tradition of modern political thought” (BCCLO p. 14), “in the contemporary world it is becoming increasingly difficult, if at all possible, to make use of law as an instrument of government or a direct instrument for social change” (BCCLO p. 45). “There is no doubt that within the scope of contemporary legal thought we find a number of concepts which need to be reformulated or simply replaced by new ones” (MEPLT p. 79). “We are witnessing the emergence of ‘law with no state’ and non-hierarchical law whose features are diversified sources and guarantees of compliance with the law” (BCCLO p. 45). Both BCCLO and MEPLT thus share a programmatic commitment to uncovering the supposed relationship between globalisation and conceptual change.

What can we make of the substance of the claims? The first obvious point to consider is that a clear operational definition of globalisation is required before we can proceed to quantify its effects on our understanding of legal theory. Academics and pundits alike have become quite (many would say overly) comfortable with the use of the term globalisation. As a consequence, globalisation is rarely conceptualized in a rigorous and clearly circumscribed manner, instead appealing to rather general observations which are taken to be self-evident, e.g. concerning interconnectedness, the dominance of global markets, the salience of global issues such as terrorism and global warming. What is striking is that virtually all contributions in both volumes fail to move beyond this rather anecdotal understanding of globalisation, selecting particular aspects of a common sense understanding of the term as it suits the argument.

As such we encounter a surprisingly wide array of phenomena grouped under the heading, including: (i) The diminishing factual ability of states to exercise their sovereignty in policy areas which have a significant cross-border dimension, e.g. regulation in economic and fiscal matters, controlling immigration, protection against ecological contingencies and the threat of terrorist attacks. (ii) The increase in the quantity, scope and influence of regional organisations, in particular the European Union. (iii) The proliferation of human rights instruments and the efficacy of the mechanisms for their implementation and enforcement, coupled with a reinterpretation of sovereignty as “the responsibility to protect” and the establishment of universal criminal jurisdiction by means of the International Criminal Court. (iv) The salience of identity and group based politics within society with the increasing recognition of radical pluralism as a central social problem. (v) The delegation of legislative and administrative powers to various supra- and international governance bodies and the resulting problems of democratic accountability of such organs. (vi) The social and legal dynamics arising in post-colonial and newly independent states.

It is more than reasonable to assume that these empirical factors touch upon many of the main concepts of legal theory. As authors in both volumes point out, legal theory has been wedded to a rather formal and classical understanding of the territorial state and its assumptions of strong social cohesion paired with exclusive legal and factual sovereignty. Of both volumes, BCCLO is most concerned with the more traditional issues of jurisprudence and legal theory, which is reflected on the breadth of its contributions and their frequently conceptual, non-empirical character. We encounter discussions of international law and the changing nature of sovereignty, the philosophy of criminal law in a globalised and pluralised society, the nature of citizenship and constitutionalism in a globalised context. Given the aims and objectives set out in their respective introductions, one can however question whether certain contributions are perhaps stretching the concept of globalisation too far. For example, articles concerning land reform in Southern Africa locate the element of globalisation in the problems arriving from a colonial history. From the perspective of conceptual innovation it is questionable whether this is the kind of globalisation relevant to the main lines of argument. On the same token, the bare fact that a topic has an international dimension does not immediately imply that it poses special problems from the perspective of legal theory. Nevertheless, BCCLO is impressive and instructive for the breadth of issues it raises with regards to globalisation.

MEPLT on the other hand is generally less concerned with legal theory strictly understood. Its main focus is on the various doctrinal, constitutional and theoretical issues arising within the context of the European Union. Thus phrases such as “multicentrism” and “legal theory” more often than not reduce to the doctrinal difficulties arising from conflicts and tensions between the European and the national legal spheres. “The main feature of justice systems in contemporary Europe”, writes Tomasz Stawecki, “is a coexistence of various courts and tribunals responsible for adjudication with the limits of a territory of given country. (…) [C]o-existence is usually accompanied by tensions and conflicts, as well as instability in the interpretation of law, which in turn results in a lack of legal certainty and predictability of laws.” (MEPLT p. 81).

There is however a considerable degree of overlap between both volumes. One common thread is that all of the phenomena identified pose a challenge for a “traditional” or “Western” conception of legal theory. This conception is based on the view of law issued by a sovereign state, producing norms that are hierarchically ordered, effective and are legitimated by democratic processes. To replace this view, we are presented with a variety of alternative views and interpretations of legal theory. The challenge to this theoretical framework relies on the argument that the paradigmatic understanding of “state-law” implicitly relies on empirical assumptions that no longer obtain, given the phenomena described above. The effects of laws are no longer congruent with a state's territorial borders (e.g. the fiscal laws of a large state can influence and constrain the ability to legislate economic affairs in smaller states), nor is legal sovereignty guaranteed when many legislative powers have been delegated to supranational bodies (posing a problem for the unified, “Kelsenian” model of a legal system), nor is the democratic legitimacy to be taken for granted in the face of challenges by various minority and subaltern groups in society.

The main achievement of these volumes is to illuminate and highlight the problem of a conceptual mismatch between legal theory and legal practice. Part of this strength derives from the fact that few authors talk about any specific author's understanding of legal theory, but tend to resort to a generalized view of “Western” legal theory or tend to rely on certain archetypal classifications, e.g. “Kelsenian” legal theory. Although this definitely contributes to the clarity of the argument, one might at the same time justly object that the objections against “traditional” legal theory are somewhat misguided. Jurisprudence (particularly contemporary legal positivism) has been aware of the issues raised here for many years and many of the positions defended within legal positivism are considerably more sophisticated than a simple will-theory of law. In fact, authors such as William Twining, Brian Tamanaha and Boaventura de Sousa Santos are conspicuously absent in both volumes. Yet all three authors have published volume length monographs on the topic of globalisation and legal theory, and their respective positions are currently the most fruitful answers to the central problems of both volumes: how do we ensure that our jurisprudential concepts are fit for a globalised world? A similar remark can be made with regard to work being done in the field of “transnational” and “cosmopolitan” democracy within political theory by authors such as David Held, James Bohman, Nancy Fraser and Seyla Benhabib.

A significant limitation of both volumes is thus a failure to engage critically with the body of existing and current literature on the matter, and to take seriously the complex nature and state of the art of contemporary legal theory and jurisprudence. In this vein, the contributors in these volumes are necessarily limited by the limitations and constraints provided for in an edited volume. Although a clear articulation of the central issues is undeniably a virtue, concepts such as “multicentrism” and “postmodernist legal theory” tend to have the character of meta-theory rather than a fully fledged substantive theory. If it is indeed the case that new conceptual frameworks are needed, it is the question whether network and system theories are fit replacements without further refinement and development.

Nevertheless, these volumes provide a challenging and comprehensive overview of the various issues currently at stake within legal and political theory. They are impressive in their scope and breadth – highlighting the relevance of globalisation in areas not typically troubled by the phenomenon, e.g. criminal and constitutional law – if occasionally lacking in comprehensiveness of treatment. These books are a recommended read for those who are interested in exploring the conceptual and foundational limits of their discipline in light of globalisation and internationalisation.