Between Law and Transnational Social Movement Organizations: Stabilizing Expectations of Global Public Goods

AuthorMark Hanna
Date01 September 2017
Published date01 September 2017
DOIhttp://doi.org/10.1111/jols.12034
JOURNAL OF LAW AND SOCIETY
VOLUME 44, NUMBER 3, SEPTEMBER 2017
ISSN: 0263-323X, pp. 345±73
Between Law and Transnational Social Movement
Organizations: Stabilizing Expectations of Global Public
Goods
Mark Hanna*
This article draws on Niklas Luhmann's theory and method to present
transnational social movement organizations as a solution to the
problem of increased expectations of global public goods which fail to
find adequate accommodation in law. As a concrete example of the
limits of law in this respect, it examines the non liquet of the World
Court on the question of the illegality of nuclear weapons. The trajec-
tory of anti-nuclear norms is traced beyond the limits of law to the
alternative structure of transnational social movement organizations,
and the article presents such organizations as stabilizing increased
expectations of global public goods through their recursive decision
making and their capacity to continuously project those expectations at
the legal and political systems. This generates observations on the
concept of `global governance', the structural relations between global
civil society and international law, and the role of this form of
organization in the evolution of the global political system.
INTRODUCTION
Globalization has led to increased expectations of what can aptly be
described as `global public goods'. The original economic idea of goods
which are non-rival in their consumption and non-excludable in their costs
and benefits
1
proves useful to conceptualizing the temporal and spatial
345
*School of Law, Queen's University Belfast, 27±30 University Square,
Belfast BT7 1NN, Northern Ireland
mark.hanna@qub.ac.uk
I wish to thank Richard Nobles, David Schiff, Peer Zumbansen, and Emilios
Christodoulidis for their comments on an earlier draft.
1 P. Samuelson, `The Pure Theory of Public Expenditure' (1954) 36 Rev. of
Economics and Statistics 387.
ß2017 The Author. Journal of Law and Society ß2017 Cardiff University Law School
`externalities' which emerged with globalization.
2
Of course, public goods
often find their most cogent expression as negative externalities at the global
level. Compared to positive formulations of `common wellbeing' or even
`common humanity', problems like global warming, global financial crisis or
nuclear war have a much more concrete `universal reach',
3
while the risk
they pose proves much easier to generalize.
4
Indeed the `equalizing effect' of
such problems can now galvanize common expectations of a significant class
of world society,
5
and in turn, these expectations can increasingly find
structure in a `global public sphere'
6
that is emerging with the advance of
communication technology and the more general development of world
society as a communicative network. This is not to say that such negative
formulations of global public goods enjoy universal legitimacy ± admittedly
they often remain politically or scientifically contested. But they nonetheless
remain relevant to law,
7
for as long as the corresponding risks are perceived
to be `real', and that the conditions which underpin them are `anthropo-
genic',
8
they will generate global protest and a reference point for the
development of law.
The modern legal system has nonetheless been exhausted by these
developments. On the one hand, the accommodation of expectations of
global public goods has been clearly limited by the foundational reference of
public international law to sovereignty doctrine.
9
Within this framework,
346
2 W. Nordhaus, `Paul Samuelson and Global Public Goods' in Samuelsonian
Economics and the Twenty-First Century, eds. A. Gottesman, L. Ramrattan, and M.
Szenberg (2006) 91.
3 And, thus, a more urgent and concrete need for `issue-specific policy and
management': I. Kaul, `Global Public Goods: Explaining their Underprovision'
(2012) 15 J. of International Economic Law 729, at 740.
4 This is the reason they tend to be `overprovided': D. Bodansky, `What is in a
Concept? Global Public Goods, International Law, and Legitimacy' (2012) 23
European J. of International Law 651, at 658.
5 U. Beck, Risk Society: Towards a New Modernity (1992) 36.
6 M. Schiltz, G. Verschraegen, and S. Magnolo, `Open Access to Knowledge in World
Society?' (2005) 11 Soziale Systeme 346, at 351.
7 This needs to be stressed, as there is something of a dominating governance
perspective in global legal studies which leads all too often to global public goods
being hastily disregarded as irrelevant: see D. Augenstein, `To Whom it May
Concern: International Human Rights Law and Global Public Goods' (2016) 23
Indiana J. of Global Legal Studies 225, at 246 (who, rightly concerned with the
expansion of the state under the conditions of globalization, nonetheless allows this
perspective to obscure the relevance of `interests and values of common concern').
See, also, N. Walker, `Human Rights and Global Public Goods: The Sound of One
Hand Clapping?' (2016) 23 Indiana J. of Global Legal Studies 248, at 253 (where
the focus on `political morality' and `political authority' only leads to `frustration
with the phenomenon of one hand clapping').
8 N. Oreskes, `On the ``Reality'' and Reality of Anthropogenic Climate Change'
(2013) 119 Climatic Change 559, at 560.
9 See N. Krisch, `The Decay of Consent: International Law in an Age of Global Public
Goods' (2014) 108 Am. J. of International Law 1.
ß2017 The Author. Journal of Law and Society ß2017 Cardiff University Law School

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