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Overview: What Influences the Local Reception of Global Law?
What are the conditions that affect the way global law is received in local situations?
Scholars recognize that global law is not merely applied in local situations. A number of factors influence how local populations “receive”—understand and apply—global law.
What Local Conditions Influence the Way Global Law Is Received?
Often, from the perspective of local actors, global law is external law. That is, global law is different from law in practice in the concrete local situation. It may appear foreign and even threatening. External law is law that is “transplanted” from somewhere else (another country or transnational institutions).
Transplanted law may seem like “someone else's law” to local perspectives.
There are a number of conditions that influence the way in which global law is received in local situations:
What Is Transplanted Law?
Research examining the reception of law in local conditions is not limited to the influence of global law in local situations. Much research is carried out on the reception of law “transplanted” from other, not necessarily global, settings.
For instance, law from a particular country or legal family may be transplanted from an origin country (for example, England, France or Germany) into a transplant country. In this case, the external law is not transplanted vertically (that is, global law applied in a local setting), but horizontally (from another local setting—the origin country). Figure 1 shows the distinction between vertically-transplanted and horizontally-transplanted law.
So law transplanted into a local setting may have its source in global or regional law (vertical transplant) or the law of another state (horizontal transplant).
Even though the horizontal transplantation of law is not the application of global law, there are many features of the horizontal application of external law that provide insight into the reception of global law.
Local Reception of Global Law
How can law created in a very different setting from local law be applied?
Researchers have identified several features of local situations that affect the way that global law is applied in a local context.
In order for global law to be successfully applied in a local setting, it must be tailored or adapted to fit the new setting. It can only be tailored to the local situation if local lawmakers are familiar with the global law.
For instance, if a country has never had an independent judiciary, then it is unlikely that a global law that assumes the impartial application of intellectual property law will even make sense. Also, in a developing country that is only just building an industrial and technological infrastructure, intellectual property law may seem irrelevant. The country does not have the institutional infrastructure to be able to make sense of the global law, much less apply it.
Participation in the Creation of Global Law
When the process for creating transnational law is open to any and all nations (as with UNCITRAL's insolvency law, then local lawmakers and legal experts are offered the opportunity to help create law with their local situation in mind. Even if the transnational law is not written with their particular situation in mind, global lawmakers may provide guidelines for applying global law that take local needs into account.
States that have no participation in the active formulation of global legal norms would therefore be less likely to understand the context of the creation of global law and be less adept at adapting the global law to their country.
Do actors in the local setting want global law? Do local lawmakers and legal experts believe that global law will help to address local legal problems or needs? When local elites, legal professionals and populations perceive a need or see a benefit to global law, the demand for this law will make acceptance more likely. On the contrary, if local elites are satisfied with local law, then there will be little demand for global law. In this case, local reception of global law is likely to be less enthusiastic.
For instance, a country that is quickly developing a robust market economy may see the benefit of global legal principles tailored to market economies. A country, like the U.S., that already has a robust economy may not feel the need to apply global law that is not tailored specifically to its own needs and situation.
Additionally, when a country is in dire economic need, international financial institutions may offer funds on the condition that global legal and economic principles are adopted in the local setting. So, local economic need may provide the basis for a demand for global law. If a country like China does not need external financial assistance, then it is less likely to feel a need for global law.
The interests of local populations (political, legal or civil) are rarely monolithic. While some local groups may desire the application of global law, the application of global law may threaten the interests of other local groups and elites. In this case, global law may be used as a tool to realign local power hierarchies. Local demand for global law may be hotly contested and highly political.
The application or effectiveness of local law may be unevenly distributed within a society. Some subpopulations may be excluded from the reach of local law or may feel that global law threatens their values. For example, while global human rights law may reject female genital cutting, local populations may see this as a threat to their religious beliefs.
On the other hand, sometimes local populations may feel that indigenous laws are unjust or not useful. In this case, a local subgroup may appeal to global law as a way to justify their criticism of local law. For instance, environmental interest groups may appeal to the moral grounds of the Kyoto Treaty as a way to criticize U.S. environmental policies.
Filling Holes in the Law
Sometimes local and global law do not conflict because there is no adequate or functional local law in a given situation. When local law no longer meets the needs of local population, aspects of global law may be used to fill the gap. Breakdown of the effectiveness of local law may occur for any number of reasons, including:
In cases like these, subpopulations within the local setting may appeal to global norms and standards in order to resist existing local law or to fill a void in local law.
Ability to Adapt
Because fitting global law to local circumstances is very important, it is vital that local lawmakers and legal professionals understand the context in which the law was formed well enough to be able to modify the law to fit their local needs. Local lawyers and judges may not have the requisite knowledge to “fine-tune” global law to fit local circumstances. In this case, the application of global law may require intensive training for local legal professionals.
However, the interests of the legal community are not necessarily unified. While some professions (they use the example of economically-trained government bureaucrats in South Korea) may argue that the application of some aspects of global law will benefit the country, other legal elites (South Korea's lawyers and judges, for instance) may question whether the global law is even legal (constitutional) within the local context. So familiarity, in and of itself, is not sufficient to adequately adapt global law to local circumstances. Different legal and political elites may have varying perspectives on the utility or legality of global law within the local context.
Social and Historical Conditions
Global law is often pitched at high levels of abstraction (for instance, broad standards and general guidelines), rather than specific rules or regulations. Global law therefore cannot cover all topics and situations. Because of this, global law must always be interpreted. Interpretation occurs through local institutions and in light of local history.
Local institutions and historical factors play an enormous role in how law is developed and in the degree to which the evolving law will be effective in meeting social needs. Even when demand for the law exists, the application and development of local law can be a problem, depending on local history and local institutions.
For instance, the way that local securities law developed in the U.S., England and Germany was heavily influenced by each country's legal tradition (for example, case law versus civil law tradition) and by the institution largely responsible for regulating the securities market (the New York Stock Exchange in the U.S.; the courts in England; the legislature in Germany).
Keytexts used to create this overview:
The Demand for Transplanted Law Affects Its Adoption
Evidence for the Transplant Effect
Creating Global Law Involves Fights for Legitimacy
How to Create Legitimacy in Global Lawmaking
How to Resist Transplanted Law: China
Limits on the Power of International Organizations
How to Resist Transplanted Law: Indonesia
How to Resist Transplanted Law: South Korea
How Countries Resist Global Institutions
UNCITRAL's Challenges When Creating Global Insolvency Norms
Ways UNCITRAL Fosters Legitimacy
How UNCITRAL Overcame Challenges to Create Global Insolvency Norms
Four Sites of Struggle over Global Law
Who’s in Charge? Rethinking Sovereignty for a Global Age
What Can Anthropology Contribute to the Study of International Law?
How Countries Deal with Incomplete Law