|Smart Library on Globalization|
Overview: Aspects of Diffusing Law Globally
Globalization is sometimes described as the movement of people, goods and ideas across national borders. Legal norms are included in this movement. In an era of globalization, law increasingly applies beyond the boundaries of nation-states.
How does law make the jump from national or local application to international or global application? In other words, how is law globalized?
Scholars commonly draw on related metaphors to make sense of the process of the diffusion of law globally: networks, webs and flows. What these images share is the idea that diffusion occurs along a structured set of relationships (complex and messy though they may be) and that diffusion involves movement of the stuff of law over time, across borders and through different areas of people's lives.
Law does not simply jump into being. Rather, it is formulated as ideas, values, practices or models and then often fine-tuned and lent normative weight in a central institution. From these central institutions (like the United Nations, the WTO, international financial institutions, international meetings and conferences, etc.) law then moves outward toward its target.
What is the stuff of legal norms that diffuses globally? How does law diffuse or move between its source and its target?
Legal norms vary in a host of ways: how obligatory they are, how clearly they are formulated, how much emotional force they carry, how broadly they apply and so on. But within this variation, scholars talk about a fairly limited set of features of legal norms (see Figure 1).
Legal norms do not simply jump from one site to another. Norms for money laundering do not simply leap from a Washington, D.C. board room to a local bank in Luxembourg. They are transmitted and translated though web or network relationships from source to target. As the norms move through webs of relationships they encounter individuals, forums (organized collections of individuals) and contexts that influence the content or flow of the norms in a number of ways.
So, between the site where the legal norm was formulated and its intended target, the norm flows through individuals and forums within concrete settings.
Individuals and forums exist within particular contexts or settings (see Figure 2). The ways in which (and even whether) legal norms are diffused are greatly influenced by any number of context features, including:
And, there are many other aspects of settings or contexts that influence the ways that legal norms are received, discussed and transmitted (or not) through individuals and forums. The relationship between the legal norm and the context of its diffusion is complex. Contexts of diffusion alternately enable or hinder (and often both) the transmission of legal norms.
Individuals (persons or organizations) and forums do not passively transmit legal norms. As legal norms are diffused through individuals and forums, different types of influences come into play. Scholars identify a number of characteristics of individuals and forums that can have enormous influence on how law is diffused.
Individuals influence the diffusion of law through:
Forums influence the diffusion of law via:
Reactions and Interpretations
But, characteristics of individuals and the structure of forums do not, by themselves, determine how law is diffused. At least as important are the reactions and interpretations to the diffusing norms. While there is a wide range of reactions and interpretations to any particular legal norm, these can be fit into three broad types (see Figure 3).
To say that an individual or forum members accept the legal norm is not always to say much. Even when actors agree on the general thrust of a legal norm, they may not agree on how that norm should be implemented, what the norm will mean in particular situations or what the long term effects are likely to be.
Because of these uncertainties, actors may:
Even if a legal norm is received positively, this does not mean it will flow through a forum without change. Indeed, some modification—if only to “translate” the norm into the local cultural vernacular—is almost certainly necessary. The norm may be modified in a number of ways, including:
Individuals and forums may resist new norms. This is likely to be the case when relationships of power are threatened. But, while there are a great many ways that actors can actively and passively resist diffusing norms, there are also ways of meeting—and perhaps bypassing—this resistance.
Scholars identify a number of strategies for overcoming resistance to diffusing legal norms. These include:
What does the global diffusion of legal norms mean for the ultimate targets—markets, states, organizations, communities and individuals?
At the target level, the challenges of diffusion change in character. The question is no longer about what should be done in general, but what specific actors should do in particular situations. It's not a matter of women's rights, but what will happen in the relationship between this husband and wife.
At the target level a whole different set of power relations comes into play. What are the local power hierarchies? How are global norms implicated within concrete relationships (this or that transaction as opposed to a general trade agreement)? And, how are enforcement mechanisms (for example, local police) brought to bear on particular relationships?
Scholars identify several forces that come into play when global norms are diffused into local situations.
One challenge to diffusing global law to a local level is that the global norm may not simply be “foreign,” but may be incomprehensible to local actors. It may not occur to a local husband that his right to discipline his wife counts—from the perspective of the global norm—as violence against women.
In order for a global norm to diffuse successfully into a local setting (that is, actually change behavior in a local setting), the global norm must be translated into the local cultural vernacular. However, there is a delicate balance. If the global norm is adapted too far, then it is unlikely to call for changed behavior. If it is not adapted far enough, then it remains foreign, threatening or irrelevant.
Whether in the realm of human rights or banking practices, global norms have to be adapted in order to be applied successfully. Models for enacting global norms may be exported from one situation to another, but just because the model worked in one situation does not mean it will work in another. Differences in such things as local culture, power hierarchies and local institutions are all implicated.
Adaptation need not be left entirely at the local level, however. International organizations, like the International Chamber of Commerce or the Basle Committee, may gather best practices or formulate general guidelines that provide some direction to local actors without, however, mandating specific actions. By becoming clearinghouses for local experiences, international institutions can fine-tune global norms. So, diffusion of global norms may involve back and forth communication and learning between international institutions and local situations. In short, diffusion is not simply one direction—from global to local. Local implementation and interpretation may work to redefine and make substantial general global norms.
Local actors may view global norms as foreign, threatening or simply unrealistic.
For instance, members of local communities may feel that diffusing women's rights norms into their circumstance may not simply change the way that husbands relate to wives, but may threaten the stability of the entire community. In this case, global norms don't seem merely foreign, they appear to be downright dangerous. Resisting global norms may seem necessary to preserve local identities.
Even in the face of powerful international institutions, local resistance may be effective for short circuiting global norms. Whether the targets of the global norm are states or local communities, actors have a repertoire of strategies for resistance. Additionally, powerful international actors, like states or international financial institutions, may be limited by their own internal dynamics or doctrinaire policy. It may also be that even when a powerful actor has the ability and has made a commitment to enforce a global norm (say, preventing genocide), they simply lack the political will to act.
Practice and Know-How
Globalizing law requires more than just diffusing ideas and values. Ideas and values change behavior when they are linked to directions or descriptions for behavior. Beyond answering the questions, “What is going on?” (ideas) and “What is important?” (values), a globalizing norm must answer, “What do we do?” In other words, practices must be diffused as well. Rules, standards, guidelines and best practices are all directions for changing patterns of behavior.
Related to practices is the notion of know-how. Know-how is the ability to tailor a practice from one situation to another, or to use the practice to actually achieve the goal. For instance, a business may adopt a particular organizational practice (say, employing an economist) but be unclear about how to use that to achieve a goal beyond the symbolic significance of being “modern.”
Institutionalization and Procedure
How do ideas, values and practices gain sticking power? How do they become a normal part of the everyday life of people? How do global norms that were once novel, confusing or perhaps even threatening become the run-of-the-mill model for behavior?
Practices become normal when they are institutionalized. In other words, a key part of making new norms part of everyday life (and, therefore changing everyday life) is integrating the new practices into the standard procedures of organizational and social life.
When practices become set as part of the institutions and organizations that affect individuals' daily lives, then normative ideas and values become concrete. With increased time, the norms that were once novel and threatening may become routine. "Different" behavior becomes "normal" behavior.
Diffusing procedure can be an extremely important means of diffusing global norms. Procedures, or rules for how to do things, are powerful conduits for globalizing norms, in part, because they appear to be value free. While actors in a local setting may chafe under a foreign value system (for instance, women's rights norms), they may have fewer qualms about instituting the rule of law. Appealing to predictable, stable rules for achieving justice (rather an appealing to the whims of a local leader) may not appear to incorporate global (in this case, Western) values, but according to some scholars, it does.
Diffusion of global norms does not occur in a single direction. Local values, practices, experiences and controversies feed back to the global level, refining and changing global norms. Some examples of this include:
Keytexts used to create this overview:
Three Things Distinguish Hard from Soft Law
When Might Soft Law Be Preferable to Hard Law?
When Do Liberal Nations Support War Crime Tribunals?
International Community Puts Pressure on National Lawmaking
The Origin of Anti-Female Genital Cutting Laws
General Features of Global Business Regulation
Individuals Can Be Powerful Agents of Globalization
Businesses Play Key Roles in Globalizing Business Regulations
Epistemic Communities Provide the Basis for Globalization
Organizations of States Are Important for Globalizing Business Regulation
What Role Do States Play in Globalizing Business Regulation?
Globalization Involves a Battle of Principles
How Actors Use Modeling to Diffuse Global Law
Modeling Law May Change Power Relations
Information Is Indispensable for Regulating International Banking
Who Regulates Money Laundering?
Translating Power in Globalization
Creating Global Law Involves Fights for Legitimacy
International Arbitration Grows within the Continental Legal Context
Where Does Globalization Come From?
A Technological Platform for Globalization
States Grant International Tribunals the Authority to Make Law
Politics and Justice in Creating the International Criminal Court
Laying the Groundwork for International Humanitarian Law
Creating Living Law from Legal Theory
From Vengeance to Justice at Nuremberg
Limits on the Power of International Organizations
How to Resist Transplanted Law: Indonesia
How Countries Resist Global Institutions
How UNCITRAL Overcame Challenges to Create Global Insolvency Norms
Disseminating Tools to Help National Insolvency Regimes
Global Administrative Law Imports Western Values
Even Independent International Tribunals Are Constrained
How the European Bank for Reconstruction and Development Created Insolvency Law
How Do Transnational Advocacy Networks Work?
Transnational Advocacy Networks and International Policy
When Are Transnational Advocacy Networks Most Likely to Be Effective?
Global Administrative Law Changes the International Legal Order
Making Global Human Rights into Local Reality
Five Challenges to Diffusing Women's Rights Law
How Countries Deal with Incomplete Law
How One Man Put Genocide on the World's Conscience
Why the U.S. Has Failed to Stop Genocide
Jurisdiction of the International Criminal Court
Eight Reasons Why the UN Human Rights Committee Is Ineffective
Human Rights Fail During the Cold War
Shared Values Underlie a Global Community of Courts
Creating Real Power through Vertical Networks
Networks of Networks Create a New World Order
Why Has the IMF Failed Its Mission?