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Model I OverviewGlobal Legal Pluralism
If states, during the so-called Westphalian paradigm of law, could lay claim to exclusive
sovereignty within their territories, globalization processes give rise to the fragmentation of
law, such that individuals and groups are the object of a plurality of overlapping, often
competing, legal orders. The first week introduces the notion of global legal pluralism,
contrasting it to state law in the Westphalian period
Globalization processes challenge the assumption that state territoriality is a constitutive
feature of legal orders. But does this mean that transnational and emergent global legal
orders can move beyond spatial boundaries that distinguish an inside from an outside? The
second week unveils a novel understanding of the (spatial) boundaries of legal orders that
explains why and how all legal orders, global or otherwise, include and exclude, thereby
casting new light on the notion of global legal pluralism.
Week 1 live session
The main theme of this course
- Problem: making conceptual, empirical, normative, and institutional sense of
globalization of inclusion and exclusion (Hand Lidahl)
- This week: globalization as the transformation of the state by the state itself,
‘’denationalization’’ (Saskia Sassen)
Conflictual legal plurality
- The Sami order: Allegas is part of the traditional Sami lands and a sacred place
- The Finnish order: Ailikas is a 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 of broadcasting
- Exclusion of the place from both the indigenous order and a state legal order
- Because of its inclusion into a global order
Knowledge clip
Thematic introduction
- Cochabamba
- Battle for Water
- Occupy Wall Street
Thematic introduction
- 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
,What happened in Cochabamba in the Bolivian Andes Mountains, in 2000, and on Wall
Street in the city of New York in 2011, are examples of intense resistance to globalization
processes that are changing our world in so many ways today. Anti- and alter-globalization
movements all over the globe protest against the ways in which economic, technological
and legal globalization processes transform life at the local level. In Cochabamba, the
contentious issue was the privatization of the city’s water supply by a foreign corporation;
on Wall Street, the protesters contested the incredible might of contemporary financial
capitalism that, according to the protesters, threatens what the state ought to be about,
which is to serve the 99 %, that is, its people, rather than the rich 1 %.
It is at the very core of this course to try to understand, what it is that alter-globalization
movements, such as these two examples, have to teach us about law and globalization.
They invite and challenge us to develop a rough and ready definition of global legal orders
against which they struggle. 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.
We are witnessing the emergence of global legal pluralism, which means that state legal
orders are no longer the only inhabitants of the legal universe, but there are also a plurality
of other orders that in different ways cut through or are independent of state borders. But
we are also witnessing intense and protracted resistance to such legal orders. These legal
orders, such as the World Trade Organization, claim that they are valid all over the globe
and include the whole world into themselves, but the slogan of many alter-globalization
movements “Another world is possible!” suggests that these legal orders do, in fact, have an
outside, even if this outside can no longer be understood as what lies beyond state borders.
This outside is the place of all those ways of organizing our life together that the emerging
global legal orders have marginalized.
Alter-globalization movements also invite us to pay attention to the classical distinction of
social thought: inclusion and exclusion. In Cochabamba at issue was the exclusion of water
supply from the public sphere by and through its inclusion into the private sphere and the
global market dominated by the interests of global investors. What we can see happen is 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. You’ll discover during
this course that what characterizes our contemporary situation is not simply that some
individuals are included into new types of legal orders and others are excluded, but that the
situation is more complex. It is rather the case that people are excluded from ways of
organizing their lives that they value precisely because they are included into new,
emerging global legal orders. As globalization processes claim to be, precisely, global, they
impact on the lives of millions of people, which is why we can often speak of massive
inclusion of people into novel types of global orders and a simultaneous massive exclusion
from whatever was the order that previously, before globalization, used to structure their
lives. You will hopefully understand during this course that globalization is lived as such
processes of inclusion and exclusion.
Thematic introduction
- This dynamic is puzzling, embarrassing, and disturbing:
, o Puzzling: territorial borders are not the primary source of inclusion and
exclusion
o Embarrassing: our theories about law have very little to say about boundaries
o Disturbing: Are inclusion and exclusion linked to the globalization of
capitalism? Or is this a general feature of (global) law?
So, globalization as a process of inclusion and exclusion will be a central theme that we try
to understand during this course.
Now, if this kind of approach to legal globalization sounds unfamiliar to you, it is because it
is indeed not a typical approach to law and globalization. The dynamic of legal globalization
and resistances to it is puzzling to us, even embarrassing and disturbing.
It is puzzling, because we are used to think about law in terms of state law; state law has
functioned in jurisprudence as the paradigm of law. State legal orders are neatly
distinguished from each other by the borders of state territories, and so inclusion and
exclusion have been understood in terms of borders. For example, the state includes its
citizens, and excludes foreigners. But now there’s a plurality of emerging legal orders that
are no longer reducible to state law and can no longer be limited by state borders.
Whatever else the term globalization might mean, it evokes a transformation of the
spatiality of law. Law can no longer be understood simply in terms of territorial state law.
But does this mean that global legal orders are not tied to space at all? If the new legal
orders claiming global validity for themselves are unlimited by state borders, does this mean
that they only include, without excluding? The existence of alter-globalization movements
suggest that the answer is no; even if new kinds of global legal orders are not limited by
state borders, and do not include and exclude like states do by distinguishing between
citizens and foreigners, these orders have limits and an outside. But we are at a loss how to
explain in legal theory the way in which these new kinds of legal orders include and exclude,
as this inclusion and exclusion that takes place at a global level can no longer be explained
with reference to territorial borders.
The dynamic of inclusion and exclusion is also embarrassing, because our theories about law
have very little to say about boundaries and limits — at least if these boundaries and limits
are not state borders. Legal theorists have often not been very interested in the general
notions of legal boundaries and limits, but this precisely is our focus during this course. The
process of excluding the people of Cochabamba as citizens whose access to water is
protected by the state and including them as customers of whom a certain purchasing
power is expected in one sense happens within the territory of the Columbian state, but the
limit that is drawn between the citizen who has free access to water and the customer who
has to pay for it cannot be explained in terms of state borders. We thus need to understand
what legal boundaries and limits might be, if they are not the same thing as state borders.
The dynamic of inclusion and exclusion is also disturbing, because it forces us to pose the
question: are inclusion and exclusion features of global capitalism only or do they, perhaps,
pertain to all legal orders? If individuals and groups are excluded because they are included
in global legal orders, as the example of Cochabamba seems to suggest, can we imagine a
global legal order that could escape this logic altogether? We are by now used to thinking
,that at least some new forms of law, such as international human rights law, are at least in
principle fully inclusive: everyone, simply in virtue of being human, is entitled to a certain
set of rights. This is one central issue that we will try to get our heads around during this
course: do legal orders include and exclude necessarily, or is this simply a contingent, non-
necessary feature of some legal orders that can be overcome by genuinely universal forms
of law.
Main aims of the course
1. Conceptual: a model of legal order that can explain how and why (global) legal
orders include and exclude.
2. Empirical: test the model with a range of examples of emergent global legal orders.
3. Normative: how to deal with inclusion and exclusion? What sense to make of global
justice in the face of struggles about inclusion and exclusion?
4. Institutional: what legal institutions are available to deal with struggles about global
inclusion and exclusion?
Our course has these four main aims: conceptual, empirical, normative and institutional. We
want to find a general concept of legal order that can deal with novel forms of inclusion and
exclusion that are not reducible to inclusion into a nation state and exclusion from it. We
also want to test this concept empirically and see how it can explain certain forms of
emergent global legal orders, such as cyberlaw or lex mercatoria. Another important issue is
the problem of global justice: What sense to make of global justice in the face of struggles
about inclusion and exclusion? How ought emerging global legal orders deal with the claims
of alter-globalization movements? And finally, we want to take a look at the extant legal
institutions and their abilities of dealing with struggles for global inclusion and exclusion.
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.
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?
The aims of this course translate roughly into five thematic modules or parts. In the first
module and during the first two weeks we learn about the historical and conceptual context
of legal globalizations and try to understand what globalized inclusion and exclusion means.
In the second module that encompasses weeks three to five, we first familiarize ourselves
with a general concept of legal order that at least claims to be able to make sense of both
state law and non-state law, and then apply this concept to certain contemporary legal
phenomena, such as cyberlaw.
,The third module focuses on resistance to global legal orders. During the weeks six and
seven, we explore philosophical theories of resistance movements and focus in particular on
the problem of representation.
In the fourth module that covers the weeks eight and nine, we focus on the normative issue
of legal authority in the global context, and approach this issue through philosophical
theories of recognition.
In the last and fifth module, we investigate the institutionalization of authoritative law-
making in the face of struggles for recognition in a global context. The last three weeks of
our course are dedicated to the question whether global constitutionalism may offer ways
to mitigate the conflicts between incongruous legal orders.
Global legal pluralism I: The historical context of the globalization of inclusion and
exclusion
If states, during the so-called Westphalian paradigm of law, could lay claim to exclusive
sovereignty within their territories, globalization processes give rise to the fragmentation of
law, such that individuals and groups are the object of a plurality of overlapping, often
competing, legal orders. This week introduces the notion of global legal pluralism,
contrasting it to state law in the Westphalian period.
In the introduction, I said that the main aim of this course is to try to understand legal
globalizations as contested processes of inclusion and exclusion. Emerging global legal
orders seek to include individuals and places into themselves and by the same token
exclude them from alternative orders, and this process is often contested.
In this knowledge clip, I will introduce you to the historical context of the global inclusion
and exclusion. I will guide you through some of the core transformations that three core
elements of legal orders — territory, authority and rights — have undergone from the
heyday of the nation state to our epoch of globalization.
Global inclusion and exclusion: the historical context
1. The Westphalian state and methodological nationalism
– Insufficient in attempts at explaining legal globalization
2. Historicizing the Westphalian paradigm: global legal pluralism
3. Assemblages of territory, authority and rights (Saskia Sassen)
– Medieval, national and global assemblages
– Historical context of legal globalization
This knowledge clip is divided into three parts. We begin by looking at the immediate past of
globalization. This is the period of the so-called Westphalian paradigm of the nation state,
which has now become under pressure due to globalization. It is no longer possible to
uncritically accept the state legal order as a paradigm of law, but must rather be seen as one
historical form of legal order. Today, the state is no longer the only member of the legal
universe, but our legal situation is much more complex and pluralistic, so the Westphalian
, legal order must be understood as only one contingent and alterable manifestation of law.
The sociologist Saskia Sassen then provides us an analysis of the ways in which the
assemblage of territory, authority and rights has been transformed in history and in which
ways these three elements come together today.
1.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
If you have studied public international law, you are certainly familiar with the notion of the
Westphalian state system. By this notion is meant an international system of independent,
equal and sovereign states that recognize each other as such. This system derives its name
from the peace treaty of Westphalia, concluded in 1648 to end the Thirty Years War in
Central Europe. The signing of the Treaty is depicted here in the painting by a Dutch Golden
Age painter. The so-called Westphalian state wields sovereign authority over its geographical
territory, its population and its internal affairs to the exclusion of all other authorities. The
key idea here is that the whole world is neatly divided into sovereign states by national
borders that distinguish between the domestic sphere of a state and the sphere of its
relations with foreign states that is regulated by public international law. The Westphalian
state has long functioned as the paradigm for understanding what law and politics are
about.
1.The Westphalian state and methodological nationalism
- The national (or nation) state is the container of social processes
- In legal and political theory, sociology
- In the legal doctrine
HLA HART: “the clear standard cases” of law are “constituted by the legal systems of modern
states, which no one in his right senses doubts are legal systems” The Concept of Law, 3rd
edn, Clarendon Press (2012), p. 4
The Westphalian paradigm of the community of sovereign nation states has become so
entrenched in our imagination that it has greatly influenced the way in which we do social,
political and legal research. The so-called “methodological nationalism” is an analytical
mind-set in academic research and beyond that takes for granted that the world consists of
sovereign nation-states. Therefore, whatever phenomenon we study, be it social change or
legal development, if it takes place within the territory of a nation-state, it is understood to
be a national phenomenon. So for example, if a judge in a national court decides a case, this
decision is understood as national, as it takes place in a national institution and uses the
national sources of law. What then is beyond the national borders according to
methodological nationalism are the foreign states and foreign sources of law, and the
relations to those states are regulated by international law to which each sovereign state
has given its consent. The nation is thus thought to be the natural container of social
processes in the modern world.
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