215
The Canadian Journal of Law & Jurisprudence February 2016
The Global Turn in Legal Theory
Mikhail Xifaras
Familiar legal theories are epistemologically and politically stato-centric theories;
they aim to rationalize intra- and inter-national legal systems. If this Westphalian
approach were abandoned, then its replacement might be called Global Law,
which invites theorizing that is not stato-centric. When that change happens, one
would talk about a Global Turn in legal theory.
Describing this turn is the aim of the present paper. To this end I am going to
present two ideas and three intuitions—not to mention a couple of ambiguities.
The two ideas concern the history and the geography of Global Law. The three
intuitions are about the fate of legal theory itself in this new emerging context.
What follows is neither a substantial or positivistic analysis, nor a prediction or
a wish. I point out tendencies, things that are happening more and more.
What is Global Law?
The term “Global Law” is a catchall term the denition of which varies consider-
ably depending on the author who uses it and the context in which it is used; it
was exactly the same for the term “State” before its scientic rationalization was
attempted. This exibility is precisely the reason why its various uses should be
taken seriously. Global Law, as both a scientic object and a new paradigm, is
a process of solidifying the notion as an explicative and unifying mixture of a
large number of disparate legal phenomena. The notion may be confusing simply
because it designates heterogeneous legal phenomena.
The term has been stigmatized to such an extent that William Twining wise-
ly prohibited his students at the University of London in his “Globalization and
Law” class from using the “g word”.
1
It is not shameful, however, to presume
that legal regimes and organizations whose scope or eld is supra- or trans-na-
tional can be characterized as global. In this sense, “global” means worldwide
but “Global Law” does not designate an independent legal order that is schem-
ing outside of the existing legal orders. It is not a Worldwide Law, but rather
the emergence of supra- and trans-national legal phenomena so inextricably
tied to a dense network of legal relations that the different levels of the “sub-
global” cannot be analyzed independently of one another. In what follows, the
term “Global Law” will refer to this denition.
A French version of this article was published in www.juspoliticum.com. I would like to thank the
editors for permitting the English publication. Thanks to Olivier Jouanjan and Eric Maulin for their
wonderful hospitality during the colloquium where the paper was discussed, as well as Louis Assier
Andrieu, Frédéric Audren, Denis Baranger, Benoit Frydman, Christophe Jamin, Duncan Kennedy,
and Horatia Muir Watt for their insights and comments on previous versions. Thanks also to Christian
Yoder for his great help on the English translation and to Andrew Lang for his kind advice.
1. William Twining, General Jurisprudence, Understanding Law from a Global Perspective
(Cambridge: Cambridge University Press, 2009) at 14-15.
Canadian Journal of Law & Jurisprudence XXIX No.1 February 2016, 215-243
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216 Xifaras
First Idea. A Succinct History of Global Law
Accounts of the genesis of Global Law are innumerable. Here is the one I
would prefer.
Global Law is the result of a historical process of the worldwide generaliza-
tion of western legalism, the triumph of civilization understood as the Empire of
the Civil Law. (At this level of general discussion, when we speak of civilization,
of westernization, of modernization, or still yet of legalization, we are more or
less talking about the same thing.)
This process is that by which non-western societies were commanded to adopt
rules, procedures, institutions, categories, and modes of legal reasoning to the point
of reconguring their individual and collective identities by varying degrees in the
terms and ways of western legalism, in any of its different versions (Common Law,
Civil Law, etc.). To enter into the “concert of civilized nations”, certain imperatives
had to be obeyed and certain conditions or principles had to be satised. These
processes are now starting to be well studied and better understood.
An independent legal system had to be put in place that guarantees the dignity
of the individual, the individual’s property, liberty to contract, an independent
administrative system that organized the fundamental functions of society and as-
sured basic diplomatic rules, and nally the eradication of certain practices judged
as barbaric (polygamy, suttee, etc.).
2
The protocols to implement these principles
vary according to the situation. Some made the distinction between “coloniza-
tion” and “opening”. With colonization, a “civilized nation” would impose west-
ern legalism on a “nation to civilize”. This would be done either directly (the
French way) or indirectly (the British way) or any possible nuance between the
two. In the “opening”, the “nation to civilize” would be constrained by the “civi-
lizing nation” by means of adopting western legalism (Japan, Turkey, etc.).
Beyond the variety of implementation protocols, one can sketch a general out-
line of the modus operandi that governs these processes that follow the scholarly
distinctions between barbarians, savages, and the civilized.
The barbarian is recognized by the fact that he disposes of something that
already resembles written Law (The Laws of Manu, Islamic Law, Criminal
Statutes in China, Tokugawa Laws in Japan, etc.). He is distinguished from the
savage, who does not possess anything intelligible that could possibly resemble
Law (the famous “societies without history”). For the savage, laws must be cre-
ated from scratch and given to him. The civilizer will start thus by distinguishing
the indigenous uses and practices that are worthy of being part of civilization
(albeit through transformation) from those that are too primitive to be included
in a civilized legal system. The elements that are worth being kept will then
be translated into the vocabulary and grammar of Western legalism under the
term “customary laws” (which has since become “indigenous laws”, although no
2. See Gerrit Gong, The Standard of “Civilization” in International Society (Oxford: Clarendon
Press, 1984). The question is asked whether those conditions were really the ones explicitly
required, or if there was something else necessary, as Japan believed to have discovered the
condition of being itself a “civilizer” after 1895.
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The Global Turn in Legal Theory 217
substantial changes have occurred in its operation).
3
Finally, the civilizer assigns
these laws to their secondary, auxiliary, and derogatory role within the legal sub-
order that he is building as a complement of the rules and institutions that are pre-
sumed universal such as the rules of Patrimonial Law (property, contracts) and
of Public Law (sovereignty, separation of powers, more recently human rights,
free elections). Family Law has been designated at least since Savigny as being
more open to the manners and the spirit of the people than Patrimonial Law, and
has become, under the covert accommodation and recognition of “cultural dif-
ferences”, the front line and the preferred place of intense negotiations between
the Universal Law of the civilizer and the so-called traditions of the civilized (the
latter generally having been invented ad hoc during these negotiations, to the
largest benet of the local, dominant elites).
4
The inhabitants of the civilized nations, whose superior culture is many centu-
ries old, are lucky enough to have not experienced these kinds of collapses. Any
trauma that they had suffered has been inicted by themselves through religious
struggles, civil wars, and other revolutions. This is perhaps why it is difcult for
them to experience the tremendous symbolic violence suffered by these societ-
ies now required to express and understand themselves in the syntax and the
terms of a so-far unknown language. It was a constraint interiorized little by
little, eventually ending up as legitimate (because it was “modern”). They be-
came more and more incapable of expressing and thinking of themselves “like
before”, feeling that they were obliged to invent a new “before” (because no
one could reasonably and decently have no “before” and also because it is use-
ful to have a bargaining chip for the negotiating terms of submitting to the new
civilized order). They had to experience both the humiliation of submission and
the pride of attaining access to the highly enviable symbolic universe of the New
Masters. They were obliged to inhabit these new forms of hybrid identities that
were both intensely loved and hated, but still fatally awed and insecure and that
only arduously emerge from this chaos.
5
These times were those, furious and heroic, of the world of before the post,
viz., in Westphalia. Westphalia is ordinarily presented as a world structured by
the binomial National States/inter-state International Law. This is not an un-
truth, but it must be added that this structural division has been reproduced in
the form of a chiasmus within each binomial term.
6
The sovereignty of States
3. When anthropologists invented customary laws, they had the excuse of not having read the
critical works of legal anthropology that had been published since. See Louis Assier-Andrieu,
Le droit dans les sociétés humaines (Paris: Nathan, 1996). Gunther Teubner & Andreas
Fischer-Lescano, “Cannibalizing Epistemes: Will Modern Law Protect Traditional Cultural
Expressions?” in Christoph Beat Graber & Mira Burri-Nenova, eds, Intellectual Property and
Traditional Cultural Expressions: Legal Protection in a Digital Environment (Cheltenham:
Edward Elgar, 2008) at 17-45.
4. See Duncan Kennedy, “Savigny’s Family/Patrimony Distinction and its Place in the Global
Genealogy of Classical Legal Thought” (2010) 58 Am J Comp L 811.
5. In a mass of literature, see Franz Fanon, Peaux noires, masques blancs (Paris: Seuil, 1952) or
in another genre, ironic, subtle and hopeless, see Junichirô Tanizaki, “L’éloge de l’ombre” in
Œuvres (Gallimard: Pleiade, 1997) at vol 1.
6. Duncan Kennedy uses the expression “nesting” to describe the phenomenon of reproduction of
binary divisions within each of the terms of divisions. See Duncan Kennedy, “The Semiotics
of Legal Argument” (1991) 42 Syracuse L Rev 75.
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218 Xifaras
can be divided between internal and external. International Law can be divided
between Inter-State Law that links civilized nations to each other (International
Public Law) and the unnamed mesh of legal relationships—colonies, protec-
torates, unequal treaties, etc.—that link the civilized nations to the nations to
civilize. Within International Public Law, the subjects are free (sovereign) and
equal States, unied by formally universal and comparable legal relations that
are also reversible. On the other hand, the unnamed civilizing mesh legalizes the
inequality of power through the unilateral domination by sovereign states of non-
states, partial-states, and those states that are presumed incapable of governing
themselves. Between International Public Law and the unnamed civilizing mesh
there exists a mirror relationship, a relationship where the desired fate of the un-
named mesh is to be reabsorbed into International Public Law once the civilizing
mission which civilized nations assign to themselves is completed.
This is what occurred with the adoption of the Universal Declaration of Human
Rights in 1948, which marks the achievement of humanity as one civilization.
Now, every human being is a dignied and capable legal “person” who is granted
fundamental rights. Every human group (at least formally) is a State or part of a
State and is governed by a constitution. Western legalism has imposed itself as the
language of a generally uniform cursory anthropology through which it is never-
theless very easy to perceive the non-western “historical worlds”, or at least what
they became through the process of “civilizing” them.
Nevertheless, one should not rush to declare western legalism as being the
last horizon of the History of Humanity. Neither should it be said that we are
observing the End of History, as civilizations might have a tendency to be stub-
born. In this new order, however, the internal chiasmatic or intersecting structure
of Westphalian International Law has collapsed. The concept of “International
Public Law” has lost its counterpart: the unnamed civilizing mesh that was its
dark side. By losing its dark side, International Public Law also lost its function
as a model, as there was ofcially nothing more to model. The historical dynamic
that carried it until now has concluded.
7
For the sake of convenience, one may
label what follows as “Global Law”. However, the least we can say is that what
follows is certainly not very clear. Here are two ambiguities.
Ambiguity 1: Global Law and Globalized Capitalism
Global Law is often associated with the promotion of universal human dignity,
property, and the freedom to contract. It is also associated with the uniformiza-
tion of the world through the diffusion of the Common Law, the standardization
of legal practices by large transnational law rms (model contracts, etc.), to the
phenomenon of forum shopping, to the recourse to private justice (arbitration,
conciliation, mediation) in international commercial relationships, and to the
production of legal rules by the private actors themselves. In the same vein,
7. See Martti Koskenniemi, The Gentle Civilizer of Nations: The Rise and Fall of International
Law 1870-1960 (Cambridge: Cambridge University Press, 2001).
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The Global Turn in Legal Theory 219
Global Law would herald the triumph of commercial interests and/or of the man-
agerial vision of the world and/or of the legal structure of globalized capitalism
and/or of liberalism and/or of the Empire. Some would rejoice at this prospect
because they consider that the advent of Global Law is likely to create a kind of
impending radiant future for humanity, one that is characterized by open markets
that ensure (sustainable) development and (environmentally-friendly) prosperity.
Commerce would civilize manners; offer everyone the benets of peace, human
rights, representative democracy, and moderate government. Others are unhappy
with the phenomenon, as they associate Global Law with the explosion of in-
equalities, the systematic pillaging of natural resources, environmental catastro-
phes, the crumbling of the State, its social policies and democratic institutions,
the aggressive and arrogant expansion of Western civilization, the standardiza-
tion of culture, and endless wars.
Global Law has undeniably a lot to do with all that. The dominant strands
within Global Law are certainly tied to those of transnational businesses. The
hegemonic projects which are expressed within Global Law are generally very
imperial in nature. The ideologies that saturate it are certainly not foreign to eco-
nomic liberalism and managerial ways of governing. Still, Global Law is about
certain systems, procedures, and legal arguments which, like all systems, proce-
dures, and legal arguments, are governed in large part by a logic of their own that
cannot be reduced to the interests, projects, and ideologies that are invested in
it at one given moment. Global Law designates an ocean of practices and legal
forms that are too complex to be considered as a single block, too contradictory,
too full of metaphysical subtleties, too open to a multiplicity of heterogeneous
interests, projects, values, and ideologies.
Global Law cannot be easily reduced to the legal institution of globalized
capitalism because it does not simply institutionalize global markets and trans-
national rms. Since the invention of international litigation of human rights,
Total’s liability for the atrocities committed by the Burmese army in connection
with the construction of a gas pipeline could have provoked a suit elsewhere
than in front of an unsympathetic Burmese court, and there is no indication that
this evolution has in any way beneted the rm in question.
8
The term “Global
Law” also means the possible convergence, on a worldwide scale, of categories
and administrative practices that certain parties hope will strengthen the State’s
capacity for action.
9
Islamic Law is globalizing. In certain ways, it presents itself
as a cultural alternative to globalized capitalism (and in some ways, it is in per-
fect sync with it). The inter-civilizational approach to human rights is a radical
critique of Euro-centrist biases and of the managerial approach to the Global
8. On this case, see Benoît Frydman, “Total et ses enjeux” in Liber Amicorum Paul Martens:
L’humanisme dans la Résolution des Conits. Utopie ou Réalité ? (Bruxelles: Larcier, 2007)
at 301-21.
9. See Benedict Kingsbury, Nico Krisch, & Richard B Stewart, “The Emergence of Global
Administrative Law” (2005) 68 Law & Contemp Prob 15. See also Sabino Cassese,
“Administrative Law without the State? The Challenge of Global Regulation” (2005) 37
NYUJ Int’l L & Pol 663. For a critique of this project, see Bhupinder Singh Chimni, “Co-
Option and Resistance: Two Faces of Global Administrative Law” (2005) 37NYUJ Int’l L &
Pol 799.
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