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Four Theories of the Global Impact of Law
Scholars Terry Halliday and Pavel Osinsky describe four different perspectives on the globalization of law.
How might different theoretical perspectives on the role of law in globalization be made to complement each other?
Scholars Terry Halliday and Pavel Osinsky identify five questions that can bring the insights of different perspectives on the globalization of law into a common framework. The authors identify the following elements:
Who are the actors? Which institutions, agencies, states and local actors create, propagate, and receive global norms and organizations?
How is power exercised? What are the methods and means through which power and influence are exercised?
Where are global laws created and how are they transmitted? What organizations or agencies are involved in international normmaking and lawmaking?
In what domains of life is law globalized? What spheres of life (for example, human rights, commercial relationships, etc.) are involved when law is globalized?
Four prominent approaches to understanding the globalization of law are:
The World Polity perspective emphasizes a tendency toward convergence among global norms. This tendency is the result of an overarching culture of rationality. In other words, all modern states, institutions and organizations promote universal norms of rationality. In doing this, the norms that govern them become similar.
This universal culture of rationality is translated into a language for lawmaking and enforcement by actors like international governmental organizations (IGOs) and international nongovernmental organizations (INGOs). International, national and local agents create international advocacy networks that promote causes, principled ideas and norms across nation states.
A World Polity approach tends to describe the exercise of power in terms of assimilative or non-coercive strategies. However, it points out that such organizations as IGOs and INGOs may also use more subtle, coercive strategies such as undermining the legitimacy of a state by arguing that the state does not truly represent the interests of its citizens.
Set within the context of the five questions listed above, the World Polity perspective has the following features (Figure 1).
Figure 1. World Polity
World System Analysis
Unlike the World Polity perspective, World System Analysis minimizes the role of law in the process of globalization. Conflicts and challenges within the arena of global laws and norms are, at bottom, mere reflections of global economic and political forces. Global laws and norms are not well institutionalized and so have little real effect.
According to World System Analysis local norms do not have a tendency to conform to global laws and norms. In fact, because local groups may have economic and political interests in resisting hegemonic states and institutions, local antisystemic movements form to resist forces of globalization.
The World System Analysis approach has the following features (Figure 2).
Figure 2. World System Analysis
Postcolonial Globalism describes similarities and differences between the older process of colonialism and the more recent processes of globalization. From this perspective, colonizing states once relied on Western law as one way to control colonized countries. However, Western law has now officially been replaced by the "rule of law" and the lawmaking power of courts. But, the rule of law and the power of courts are only masks for the power of strong states. Powerful nation-states have been replaced by such entities as transnational governments, international financial institutions, courts, private foundations and the United Nations.
Unlike a World Systems approach, Postcolonial Globalism does not view global law as mere reflection of economic interests. Rather global legal norms offer another powerful tool in the arsenal of hegemonic actors to control localities through the “colonization of conscience.” Certainly, global laws and norms may ultimately originate in the interests of powerful global actors, but these norms have an important regulatory effect all their own. Globalized laws and norms disguise global hegemony as well as put related media of control in place through emphasizing courts over legislative and executive power as well as making what is really a local form of law (e.g., Western law) the default and exportable standard demanded by global markets.
In contrast to the World Polity approach, Postcolonial Globalism emphasizes the ability of local nations and groups to adapt or resist these global processes. Local actors may “foil” globalizing processes through adapting (therefore modifying) global laws to meet local interests or by just outright resisting global norms. This ability of local agents to resist or adapt global laws and norms sometimes forces hybridization of global law. In other words, when global law is applied in local circumstances, it is altered to fit the local context. Global law is not applied in pure form. Because local actors can resist globalization, power is redistributed between global and local settings.
The Postcolonial Globalism perspective has the following features (Figure 3).
Figure 3. Postcolonial Globalism
Law and Economic Development
According to the Law and Economic Development perspective, market rationality is key. That is, businesses need predictability in order to extend their global reach and enter into new markets. Global players, such as international financial institutions (IFIs), private financial institutions and private foundations work to extend market rationality. When local and global market principles converge, businesses can extend their economic and political reach.
Within this perspective, power is exercised both overtly (e.g., through the lending practices of the IFIs) as well as more subtly (through the uneven distribution of power in the relationship between the suppliers and consumers of law and capital).
Unlike the Postcolonial approach, the Law and Economic Development perspective emphasizes the importance of local legislatures and executive powers over the power of courts. Even though the global law and norms are “exported” by globalizing actors, local legislatures and executives are able to modify or reject these norms within the local context.
Like the World Polity approach, Law and Economic Development emphasizes the importance of universal, rational norms (especially in the form of property rights). Though, like the World Systems approach, some Law and Economic Development researchers argue that local economies do not always need to adopt global laws to develop a local economy (as, for example, in
According to the Law and Economic Development approach, global law works in the interests of major global powers and is not mere window dressing. However, global laws and norms are often contested when they run up against local spheres of influence. The Law and Economic Development perspective examines the conditions under which transplanting global law into local contexts may be more or less effective.
Some other approaches tend to see globalizing actors working together toward the same goals. Not so, according to the Law and Economic Development perspective. Conflict among the globalizing powers is both possible and evident. This conflict among globalizing powers may be used to the advantage of local actors as a way of resisting or adapting global law.
The Law and Economic Development approach has the following features (Figure 4).
Figure 4. Law and Economic Development
Data and Methods:
Review of research.
Halliday, Terence C., and Pavel Osinsky. 2006. "Globalization of Law." Annual Review of Sociology 32:447–70.
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