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Why Is Law Globalized? It Depends on the Type of Law

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Martin Shapiro discusses a series of factors that may underlie the growth of law and the legal profession within the context of globalization. Factors associated with the globalization of law as well as social and historical changes that have lead to a growth not only in the amount of law, but also in the depth to which law penetrates into human relationships.

More Law

Shapiro identifies two types of factors that have lead to not only a greater number of laws, but a deepening of the reach of law into social relationships.

Types of law and globalization

A series of historical events has lead to an increasing globalization of law in three areas.

• Commercial and contract law. As business becomes increasingly global, that is, transnational, law has needed to expand to fill voids where there was no sovereign lawgiver. Privately made law—private agreements that govern the relationships between corporations—has grown. The globalization of business has also lead to an increase in governmental regulation as demonstrated in the formation of the European Union.
• Protection law. In industrialized nations citizens have come to expect their government to protect them and so demand more laws as protection. This may include environmental law, product safety law, workplace safety law and investor safety laws.
• Public law. Shapiro identifies a call for greater government transparency not only in industrialized nations, but in some Eastern European countries following the end of the Cold War. This includes not only an increased constitutionalism, but an increased judicial oversight of the operation of government bureaucracy.

In short, as citizens have demanded more certainty, protection and transparency and accountability, the scope of law has grown to meet this demand.

Social / Historical changes

An increase in law proceeds not only from the globalization of different types of law, but from particular social and historical changes.

• In the European Union (EU), a move from unity to federalism adds a new layer of law and regulation
• As states began to reach their capacity to fund welfare state policies in the 1980s, limitations were placed on eligibility for benefits. This caused new legal standards to be put in place to determine eligibility criteria for state welfare benefits.
• Many business relationships have become more distant. For instance, in capitalist countries there was a move after World War II in corporate structure away from a tightly integrated vertical organization to a more horizontal organization. For instance, the organization that provided parts to a manufacturing process might be integrated into the company (e.g., as a division of the company) in a vertical structure. In a horizontal structure, the supplier is a separate business or company. Relationships among different parties involved in the manufacturing process became more distant. Thus, relationships could not be governed by fiat from corporate headquarters, but had to be negotiated according to legal principles. A similar type of distancing occurred in post-Leninist regimes when state owned companies were privatized.

More Lawyers

As the amount of law has grown, so has the demand for legal professionals. The demand has not been simply for an increase in the number of lawyers or judges, but that the legal profession be independent.

Globalization

• Globalization of markets means that relationships among business partners necessarily become more distant. Greater distance among business partners creates a greater need for law therefore lawyers.
• Citizens expect their government to protect them and so demand more laws as protection. This increase in law creates more avenues for litigation. To meet an increased demand for litigation for protection, more lawyers are needed.
• Calls for greater government transparency and increased public participation in bureaucratic operation create a demand for agents outside the bureaucracy to maintain oversight of the bureaucracy. An independent judiciary and legal profession can meet that demand.

Governmental / Historical Changes

In addition to factors associated with globalization of law, social changes have also lead to an increase in the number of lawyers and judges.

Changes in education:

• Expansion of European university education after WWII made law more plausible as career
• Changes in education also opened up legal education to women, significantly broadening the pool of potential legal professionals.

Extension of the ability to participate in litigation in the EU:

• In EU, extension of ability to litigate Community law matters to private citizens provided new avenues for litigation. New avenues for litigation by more parties created a greater demand for lawyers to carry out this litigation.
• Creation of lower courts (court of first instance) and extension of the ability to participate in Community litigation to lower courts created more forums in which litigation could occur. This brought about increase in the number of judges, if not courts.

End of the Cold War

The fall of communism in Eastern Europe lead to multiple sources of demand for trained, independent legal professionals.

• As companies became privatized, business relationships become more distant. Companies moved from vertical to horizontal management structures. This created a demand for legal professionals to mediate these relationships.
• The ruling party and state bureaucracy of former communist countries were never truly expected to abide by their own laws. However, citizens in post-Leninist countries now demand greater transparency and expect government officials to abide by the rule of law. This expectation creates a demand for an independent bar and judiciary.

More Law, More Lawyers: Is This Good or Bad?

Does the increase in law and lawyers add up to a massive and increased “global legalism” (penetration of law, lawyers and litigation into every aspect of social life)? Shapiro is skeptical. He makes several points in response to claims that there has been an increase in global legalism and that even if there has been an increase, that it is necessarily a bad thing.

• It is very difficult to measure the degree to which there may be a deeper penetration of law, lawyers and litigation into every aspect of social life. So, at the time of his writing in 1993, Shapiro says that we just do not know how deeply law penetrates into social relationships world-wide.
• Given the dramatic expansion in human interactions—especially at a distance—it is not surprising that there would be an increase in the demand for law to govern these relationships. Even though there are transaction costs associated with the participation of lawyers in the regulation of social relationships, it is not clear that the legal transaction costs outweigh the benefits of the legal transactions.
• Judicialization of politics may or may not be happening (measures are difficult to obtain) but even so this may not be a bad thing. Citizens turn to their government for protection and that courts are part of that protection. Also, even if people are turning more to the government for help, it is not clear that they are turning disproportionately to courts.
• Also, it may be less that there is an increase in the “judicialization of politics” so much as an increased awareness of it (via legal scholarship). Court involvement in some processes would have been “hidden” before, but with changes in law this involvement may become more visible. So, what appears as “more” may simply be “more visible.”

Shapiro concludes that it is premature to take action to limit global legalism. First, we cannot tell whether or to what degree it has actually occurred. Second, it is not clear that the effects are all negative.

Bottom Line

Shapiro argues that a number of forces, including globalization, have given rise to an increased demand for law, and, concomitantly, lawyers and judges. He questions whether this has lead to a global legalism where law increasingly penetrates everyday relationships and where the politics of litigation has supplanted the politics of legislation. Finally, even if there has been a growth in global legalism, Shapiro notes that this may not be all bad. The fact is, however, there is still much we do not know.

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Why Is Law Globalized? It Depends on the Type of Law