The Problem of Global Law
| Published date | 01 September 2011 |
| DOI | http://doi.org/10.1111/j.1468-2230.2011.00872.x |
| Date | 01 September 2011 |
REVIEWARTICLE
The Problem of Global Law
Patrick Capps
n
and Dean Machin
nn
Nico Krisch, Beyond Constitutionalism:The Pluralist Structure of Postnational
Law, Oxford: Oxford University Press, 2010,349 pp, hb d50.00.
In a commentary on the Covenant of the League of Nations from 1919 the French
international lawyer George Scelle describes a vision ofglobal law which he calls
global syndicalism.This form of law comprises a Parliament of Nations which is
to be situated in Geneva, an International Governmental Commission (which
includes a Directorate of International Armed Forces) and the International Court
of Justice. The international society these institutions are to regulate is not one
comprisedof states or evengeographicalconstituencies. Rather, it consistsof pro-
fessions around which‘members of the global electorate . .. construct their iden-
tities’.
1
Each profession would be uni¢ed by a set of interests which are articulated
through global representative bodies and they would co-operate through ‘inter-
professional alliances’.
2
The general will expressed through such bodies, which
participate in the Parliament of Nations, comes not only fromthe preferences of
the groupsthey represent,but also from the deepand multiple bondsof solidarity
which arise organically between these groups.
This vision is undoubtedly utopian and Scelle recognised that the system of
global law at the time he was writing was, in the main, interstate in character.
Thus, the authority of international legal norms found, for example, in treaties
or custom, came from the direct or indirect consent of states. However, he
observed that ‘international commissions, unions, and technical organisations
were multiplying’.
3
Given his utopian vision, it should come as no surprise
that he thought that the interstate system of international legality could be
enhanced by incorporating these various regulatory bodies into its institutional
architecture.
The subject of this review, Nico Krisch’s broad and insightful book Beyond
Constitutionalism, echoes someof Scelle’s ideas. Krisch’s claim is that there has been
a profound shift away from a world of discrete states towards a postnational
regulatory landscape. This landscape is pluralist in character and, Krisch
argues, normatively justi¢able. We will come to the details and plausibility of his
n
Reader in Law, University of Bri stol.
nn
LeverhulmeResearch Fellow in Political Philosophy, Universityof Warwick.Thanks to Phil Syrpis,
Keith Syrettand Steven Greer for comments on an earlier draft of this article.
1M. Koskenniemi,The Gentile Civilizer of Nations. The Rise and Fall of International Law1870^1960
(Cambridge: Cambridge University Press, 2002) 267. See G. Scelle, Le Pactedes Nations et sa liaison
avecLeTraite
Łde Paix(Paris: Sirey,1919) 101^110.
2ibid,267.
3ibid,330.
r2011The Authors.The Modern Law Review r2011The Modern Law Review Limited.
Published by BlackwellPublishing, 9600 Garsington Road,Oxford OX4 2DQ,UK and 350 Main Street, Malden, MA 02148, USA
(2011) 74(5) 794^810
argument shortly, but ¢rst some background about the postnational regulatory
environment is required.One aspect of this landscape is that the state has become
less important both as the centralsite of legal authorityand as the focus ofpolitical
allegiance. The state has somehowdisaggregatedi nto its component parts each of
which is part of a larger, and often less formal, system of global law. Another
related aspect of this shift to a postnational regulatory landscape is the prolifera-
tion of global regulatorybodies such as internationalcourts, international organi-
sations and global and regional regulatory agencies. For example, in the 1980s
there was a handful of international judicial bodies. Now there are at least 20 per-
manent international judicial bodies, and at least 70 other institutions whichexer-
cise judicial or quasi-judicial functions.
4
Eighty-¢ve per cent of the total number
of international decisions, opinions and rulings (25,750 out of 29,094) have been
issued in the last two decades.
5
Furthermore,there are now hundreds of international
and transnational organisations and agencies, which aimto administer, for instance,
human rights standards, standards for global welfare, macroeconomic systemic risk,
and environmental regulation. These bodies regulate and represent a wider array of
activities and interests than those traditionally associated with the state.
Krisch and others writing in this area claimthat a postnational regulatoryland-
scape has emerged. This consists of various regulatory bodies like those just
described. Some of these are associated with the disaggregated state, some with
international organisations, while others £oat relatively free as transnational regu-
latory agencies. Each has a relatively speci¢c regulatory role and regulates
particularactivities.The decisions, rankings, ratings or opinions of some of these
bodies can often have powerful e¡ects on those subject to them. For example, the
judgements by rating agencies on the extent to which a sovereign government
will be able and willing to repay foreigndebt-holders can be saidto have contrib-
uted to the collapse of governments during the current ¢nancial crisis. Otherreg-
ulatorybodies, like international courts,aim to produce compliance by appealing
to values such as consensus, reason or justice.The questions which must be faced
are whether and how these regulatory bodies are part of a system of law and
whetherthat overall system is normatively justi¢ed.Krisch’s answersare that these
regulatory bodies are beginning to resemble a form of Pluralist Global Law
(PGL), and that there are good reasons for the postnational regulatory landscape
to take this form.
Versions of PGL, of whichKrisch’s is just one,perform a similar role to a global
state. However there are important structural di¡erences between these two
forms. Like its traditionaldomestic counterpart, a global state would possess rela-
tively ¢xed and formal relations betweenthe bodies which comprise it, and these
formal relations would be set by a foundational constitution. In contrast, PGL is
£uid, informal and contested.Within a traditional state legal order, contestation
over which part of government should determine a matter is normally resolved
by the constitution; it determineswhich bodies are subordinate and should defer,
4See Project on International Courts and Tribunals website: http://www.pict-pcti.org/index.html
(last visited 10 June 2011).
5K. Alter,‘The New InternationalCourts: A Bird’sEye View’ (2009) 9 Bu¡ett Centrefor International
and Comparative StudiesWorking PaperSeries 1.
Patrick Cappsand Dea n Machin
795
r2011The Authors.The Modern Law Review r2011The Modern Law Review Limited.
(2011) 74(5) 794^810
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