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Advanced Philosophy of Global Law Outline
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Advanced Philosophy of Global Law 2020/2021Content:
Week 1: Global legal pluralism: the historical context of the globalization of inclusion and exclusion p. 2
Week 2: Global legal pluralism: beyond borders
Week 3: Legal orders in a global context: The IACA-model of Law
Week 4: Legal orders in a global context: Cyberlaw and the IACA-model of Law
Week 5: Legal orders in a global context: Lex mercatoria and the IACA-model of Law
Week 6: Resistance to emergent global legal orders
Week 7: Resistance to emergent global legal orders II
Week 8: Authority and struggles for recognition: Communitarianism and cosmopolitanism
Week 9: Authority and struggles for recognition: Agonistic theory of legal authority and politics of
boundaries
Week 10: Global constitutionalism and its limits: Global administrative law
Week 11: Global constitutionalism and its limits: Private international law
Week 12: Global constitutionalism and its limits: Constitutionalism beyond the state
, Lecture 1: Introduction & Chapter 1
Global legal pluralism vs. state law in the Westphalian period
Thematic introduction
Thematic introduction – what happened in Cochabamba and at Wall Street
• Intense resistance to globalization processes, including the emergence of global legal orders
• Rough and ready definition of global legal orders
• Resistance to the dynamic of globalization: “Another world is possible”
• Not merely inclusion and exclusion, but rather: (massive) exclusion because of (massive) inclusion
o The issue in Cochabamba: An exclusion of people from their access to water that they had as
citizens, because they were now included into the global market and treated as paying customers.
o The issue overall: people are excluded from ways of organizing their lives that they value
precisely because they are included into new, emerging, global legal orders. Globalization is thus
lived as processes of inclusion and exclusion.
Core of the course: find out what it is that alter-globalization movements have to teach us about law and
globalization. We need to make sense of legal orders that claim global or globe-wide validity for themselves
and can no longer be understood in terms of state law. State legal orders are no longer the only inhabitants of
the legal universe (global legal pluralism)
This dynamic of legal globalization and resistance is puzzling, embarrassing and disturbing
• Puzzling: territorial borders are not the primary source of inclusion and exclusion, globalization evokes a
transformation of the spatiality of law.
• Embarrassing: our theories about law have very little to say about boundaries that are not state borders
• Disturbing: are inclusion and exclusion linked to the globalization of capitalism and can it be overcome?
Or is this a general feature of every type of legal order (e.g. also human rights law)?
Main aims of the course:
• Conceptual: a model of legal order that can explain how and why legal orders include and exclude
• Empirical: Test the model with trying to explain a range of examples of emergent global legal orders
• Normative: How to deal with inclusion and exclusion? What sense to make of global justice in the face
of struggles about inclusion and exclusion?
• Institutional: What legal institutions are available to deal with struggles about global inclusion and
exclusion?
Thematic introduction: Five thematic modules
• I. Global legal pluralism: contextualizing the problem of globalized inclusion and exclusion
• II. Legal orders in a global setting: introducing and testing a general concept of (global) legal order
• III. Resistance to emergent global legal orders: exploring how legal globalizations are contested and the
problem of representation
• IV. Authority and struggles for recognition: how should boundaries be drawn in the face of struggles
about (global) inclusion and exclusion?
• V. Global constitutionalism and its limits: Can the globalization of constitutionalism offer a way to deal
with such struggles?
• Book: Authority and the Globalization of Inclusion and Exclusion by Hans Lindahl.
, Knowledge clip: Global inclusion and exclusion, the historical context
Global inclusion and exclusion: The historical context
• The Westphalian state and methodological nationalism
o Insufficient in attempts at explaining legal globalization
• Historicizing the Westphalian paradigm: global legal pluralism
• Assemblages of territory, authority and rights (Saskia Sassen)
o Medieval, national and global assemblages. Historical context of legal globalization
The Westphalian state and methodological nationalism
• The ‘Westphalian paradigm’: exclusive state authority over a territory and population
• The key principle of classical public international law
• Central distinction: Domestic/foreign
Methodological nationalism:
• “The clear and standard cases” of law are “constituted by the legal systems of modern states, which no
one in his right senses doubts are legal systems.” – H.L.A. Hart, The concept of Law, 3rd edn, Clarendon
press (2012) p. 4
• The national (or nation) state is the container of social processes
• In legal and political theory, sociology & In the legal doctrine
Historicizing the Westphalian paradigm
• “State law is not the only member of the legal universe; rather it is part of a larger and more complex
constellation of legal phenomena that can be found at the international, supranational, transnational
and potentially global levels.” - Jorge F. Fabra-Zamora, ‘Introduction’ in Fabra-Amora (ed.)
Jurisprudence in a Globalized world, Edward Elgar 2020 p. 6
• A variety of approaches: post-national, supra-national, trans-national, global → we can no longer think
from the naturalized idea of the nation state as the container of social processes, but are forced to
pluralize our methodology in order to be able to recognize all other legally relevant phenomena that do
not fit into the Westphalian paradigm and state law.
• Prof. Neil Walker on law and globalization: No simple switch to ‘methodological globalism’ from
methodological nationalism. We shall not simply move from a nation-centric framework to a post-
national framework that only focuses on the growing interdependence and the formation of global
institutions and cosmopolitan principles. We must not erase the state.
• Saskia Sassen and the sociology of globalization: Cosmopolitan and non-cosmopolitan globalization
o The formation of institutions and processes that we easily recognize as being in some sense
global and beyond the state: WTO, financial markets, international criminal courts, etc.
o Localized globalization: global processes within and by states and sub-national actors, policy
oriented at the global
o Globalization as denationalization, as the state’s internal transformation. It does not necessarily
mean the decline of the nation state.
The assemblage of Territory, Authority and Rights
• In her book, Sassen handles Territory Authority and Rights, and their transhistorical elements. They
were grouped differently during the medieval times, the period of the nation state and the age of
globalization. Our focus in this course is the global TAR as a transformation of the national TAR.
,• Territory: national borders as limits of jurisdiction
o Pluralism: International public law and the harmony between equal sovereigns
o Monism: all other legal orders within state order subordinate tot state law
• Authority: an exclusive claim to authority or rule
o Monopoly in the exercise of violence
o The nation and the peoples as the source of the rule: democracy
• Rights: formal legal orders
o Universal and equal rights (and obligations) for all persons residing in the territory
o ‘One people, one territory’
The assemblages: the global TAR
• Snapshot overview of the shift of the period of the nation state to the contemporary global age:
o Disaggregation of one master legal order (state) into many partial legal orders
o Examples: FIFA, ICANN, ICC, cyberlaw, multinationals, WTO, human rights regimes
• Pluralism 2.0
• Transformation of the state into a ‘global’ player / denationalization of the state (by the state itself)
• ‘localization of the global’: what happens within the nation-state is not necessarily ‘national’
• Highly specialized emergent legal orders interact with nation states. Particular components of the
national state begin to function as the institutional home for global operations and processes
(denationalization). The state includes the global and transforms itself in the process.
• The global assemblage of TAR = the dis-assemblage of the national TAR
• “A good part of globalization consists of an enormous variety of micro-processes that begin to
denationalize what had been constructed as national – whether policies, capital, political subjectivities,
urban spaces, temporal frames, or any other of a variety of dynamics and domains. […] They
denationalize what had been constructed as national, but do not necessarily make this evident. The
institutional and subjective micro-transformations denationalization produces frequently continue to be
experienced as national when they in fact entail a significant historical shift in the national.” – Saskia
Sassen, Territory, Authority, Rights: From medieval to global assemblages, p. 13
The Global TAR: Territory
• Territory: Cross-boundary networks of places that cut across nation state borders
o Transformation of the bordering capacity, its denationalization
o Globalization changes the significance of national borders and national territory.
o The global and the national are not mutually exclusive terms, and a process that happens within
the national territory is not necessarily national. The global does not begin at the national border,
but rather takes place inside the nation state in such a way that re-articulates that inside.
• Importance of sub-national places (such as ‘global cities’) → ‘localization’
o The compression of space: What and who is physically close, is no longer necessarily close in
terms of one’s practical environment.
• The networks of places have regional and sometimes a global scale → ‘globalization’
The Global TAR: Authority
• Fragmentation of rule: a plurality of norm-making authorities to which the states need to respond. Sate
law makes the claim to authority over ‘virtually all aspects of social and individual life in a given
region’, transnational legal orders only claim authority over a very specific slice of social life.
, o Functional source of authority: FIFA, Lex mercatoria, multinational corp., Cyberlaw
• Privatization of rule and political authority: private legal orders and privatization of public sector
activities. States are required to change some of their laws and regulations so that corporations may have
global space within which to operate, but the traditional purpose of the state was to guarantee a certain
set of rights to its own citizens and to enable a functioning national economy.
• Denationalization of state authority
The Global TAR: Rights
• Deregulation by the state, e.g. state’s privatization of its functions → Regulation by other actors →
Denationalization of rights
o Rights and obligations are no longer attributed to individuals and groups simply in terms of
territorial belonging.
o The inclusion of individuals as members (often: as customers) into global legal orders and their
exclusion from state regulation. I.e. an exclusion of what citizenship used to mean because there
are new forms of inclusion of individuals into global frameworks
o Rights and obligations distributed by private global legal orders
• Citizen/foreigner distinction loses some of its significance.
• States transform their own regulation in such a way that allows for reregulation by other actors.
To do next:
• Read Sassen’s text to deepen your understanding of what she means by ‘denationalization’
• Read P&R’s article by keeping in mind Sassen’s notion of denationalization.
Live session
General structure of the course
• 12 weekly study cycles, 5 thematic modules
• All knowledge pre-recorded
• Podcasts, knowledge clips, other audiovisual materials, readings
• Study method: flipped class, independent study
• 1 individual assignment each week
The main theme of this course
• Problem: making conceptual, empirical, normative, and institutional sense of the globalization of
inclusion and exclusion (Hans Lindahl).
Conflictual legal plurality
• The Sámi order: Áilegas is part of the traditional Samí lands and a sacred place
• The Finnish order: Ailikas is part of the territory of Finland and a suitable place for a TV mast
• The order of Digital Colony: a denationalized place that is part of the global order of places that serve
the business of digital infrastructure and broadcasting
• Exclusion of the place from both the indigenous and a state legal order
• Because of its inclusion into a global order
, Lecture 2: Globalization as a spatial concept: borders vs. limits
Knowledge Clip 1
Introduction
• Last week: renouncing methodological nationalism in the face of global legal pluralism, but not
assuming ‘methodological globalism’ instead
• The national and the global are not mutually exclusive terms
o Denationalization: the globalization of the national/local
o Globalization transforms territory rather than simply abandoning it
• Our goal this week: A general notion of the inside/outside distinction beyond the domestic/foreign,
applicable also to global legal orders
o Even if emerging legal orders do not have borders in the same sense that states have borders, they
still have spatial limits that distinguish between a familiar inside and a strange outside.
Where is global law? Globalization as a spatial concept
• Law beyond national borders: “deterritorialization”
• Crisis of the inside/outside distinction understood in terms of the domestic and the foreign
• Law beyond national borders, yes: but also beyond space and locality as such?
• Is a global legal order possible that doesn’t have an outside?
• The problem of universality
• Possible definition of globalization: an increasing amount of interactions and relationships become
wholly independent of locality and therefore deterritorialized.
Two senses of the inside/outside distinction: borders and limits (Lindahl)
• Borders: Inside/outside as domestic/foreign; Legal space as national territorial jurisdiction
• Limits: A more general philosophical notion beyond the Westphalian paradigm. All legal orders are
limited in space but not necessarily bordered as states. Inside/outside as familiar/strange
Limits
• The space as a space of action vs. space as space of extension
• “Law orders space by setting up a distribution of ought-places that are normatively interconnected in
certain ways, and not in others; and this means that a legal order emerges through a closure that
partitions space into an inside, a familiar distribution of places and an indeterminable outside.” –
Lindahl, Fault Lines of Globalization, Oxford UP 2013, p. 41
• From geographical space …. [i.e. the extension or scale of law/jurisdiction: local, state, federal, sub-
national, national, regional, global]
• … to the space of action [jurisdiction ratione loci, temporis materiae, personae: law as a 4-fold legal
order]. Law can be seen as organizing space into places where a certain kind of behavior ought to take
place in the right order and by the right actor.
• Limit: the distinction between an inside as a familiar, ordered distribution of places and a non-ordered,
non-regulated outside
• An actor perspective, i.e. a first-person perspective: ‘our place’ what is familiar/strange,
relevant/irrelevant ‘to us’ and from the point of view of our joint action
• Lindahl: Law as such a concrete order of behavior gives rise to a familiar inside that is an ordered
distribution of places relevant to what it is that we are doing together at the moment. This ordered space
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