Conclusion - what is to be done

History may one day show that these scientific symbols werenecessary for the emergence of human consciousness of globalisation as weknow it just as Newtonian science accompanied the disp

Conclusion: what is to be done?

A human being is part of the whole called by us ‘universe’, a part limited in timeand space We experience ourselves, our thoughts and feelings as something sep-arate from the rest A kind of optical delusion of consciousness This delusion is

a kind of prison for us, restricting us to our personal desires and to affection for

a few persons nearest to us Our task must be to free ourselves from the prison bywidening our circle of compassion to embrace all living creatures and the whole

of nature in its beauty We shall require a substantially new manner of ing if mankind is to survive

think-Albert Einstein1

Albert Einstein discovered the relativity of time and space in the midst of theWorld Revolution History may one day show that these scientific symbols werenecessary for the emergence of human consciousness of globalisation as weknow it (just as Newtonian science accompanied the displacement of divinemonarchical government by parliamentary government in seventeenth-centuryEngland).2Globalisation in a novel way demonstrates the universalist dimen-sions of the local and the particular, and the diverse particular, local impacts ofuniversalist norms Natural manifestations of space (such as continent or hemi-sphere) and time (such as day and night) for the first time in human history can

no longer stop events in one part of the world from having almost instantaneousimplications in another part Single events may give rise to a variety of inter-pretations and ramifications across a multiplicity of communities

‘September 11’ is a highly relevant demonstration of this global tion, as we have already noted An act directed against two cities of the onenation-state was widely declared to be a terrorist act against the world (at least

interconnec-in the West) Sensibilities across the globe were aroused interconnec-in a moment of timewitnessed almost contemporaneously in the whole of the industrialised world.People varied in their characterisations of this event For some, the US receivedits just deserts for interfering in the Middle East For others, it was an unwar-ranted act of war against America in which innocent civilians died There are

1 Quoted in Kim Zetter, Simple Kabbalah (Berkeley: Conari Press, 1999), p 151.

1 See ch 2, section 2.1.1, p 26 above, referring to Michael Walzer.

many other opinions too My own impression is that this event can be terised as one of many rebounding transfers of human misery symptomatic ofthe failed communication of norms and authority which ricochet between Eastand West.3In this respect, Einstein appears correct to have noticed that weexperience ‘our thoughts and feelings as something separate from the rest’,whilst still being part of the universe This deluded separation is a prison InEinstein’s century, a new manner of thinking was required The fruits of thatthinking are required in the twenty-first century.

charac-To appreciate the conflicting loyalties and allegiances which different societiescan inspire and demand, and have done in the past, I have suggested in part 1 amodel The ‘Space–Time Matrix’ may inform the pursuit of a globalist jurispru-dence aiming to understand and construct law and social order meaningfullytoday On the Space Axis, humans tend to feel moral, cultural allegiance to therequirements of their closer spheres of involvement such as family, communitygroup, tribe; whilst at the other extreme, typically at the level of state government,those responses and calls tend to be political, rational and often abstracted frompersonal relevance On the Time Axis, humans will adopt a position for the future

in response to what history means for them There will be reasons of some torical significance for why someone is perceived to be radical or conservative Toacknowledge only one or two of these four orientations (interior, exterior, history,future) on a particular issue is to be imprisoned in a type of ignorance identified

his-by Einstein Social harmony requires breaking out of ‘personal desires and

affection for a few persons nearest to us’as Einstein has suggested Social harmonyalso requires us to break out of visions of the future which cannot be subjected todialogue and formulation by reference to interpretations of history There is aneed to embrace these four orientations of the Space–Time Matrix all at once –learning about other versions of the past and future and other people’s notions ofpersonal morality and expectations of political organisations Meaningful lawand norms at all social levels will need to be sensitive to these commitments

At all times, I have endeavoured to emphasise the historical circumstances inwhich law has attracted allegiance by maintaining rich normative references tothese orientations, and how these allegiances have been dissipated and recon-stituted Understanding this experience will be important if law is to live to itspotential today Not only will law be more effective when it is believed in ratherthan just coerced4but it will also be more meaningful This can be contemplated

by reviewing the recurring patterns of authority which we saw characterise thesecond millennium in Europe, before reconsidering the idea of ‘globalisation’with some recommendations for thinking about law now and in the future

1 On initiatives for intercultural dialogue, see ch 10, section 10.4.4 pp 235–40 above.

1 See Iredell Jenkins, Social Order and the Limits of Law (A Theoretical Essay) (Princeton: Princeton University Press, 1980), ch 9 According to H L A Hart, The Concept of Law

(Oxford: Clarendon Press, 2nd edn 1994), pp 231–2: ‘It may well be that any form of legal order is at its healthiest when there is a generally di ffused sense that it is morally obligatory to conform to it.’

13.1 Lions and dragons: revisiting celestial and terrestrial patterns of authority

Laws are often thought to be like a rod with which to beat an errant donkey.Psalmist and pope think otherwise More precious than gold and sweeter thanhoney, laws can bring joy and confer reward in their keeping.5They can be used

to create a social order in which faith, grace and charisma may develop ically.6In greater and lesser measure, all of these optimistic and pessimistic ideas

organ-of law have received expression in the Western legal tradition considered in thisbook

A happy society is one where people live the law gladly, not under threat ofpunishment but out of a sense of virtue Self-propulsion7or self-direction is aforemost human social ideal An individual should ideally follow or live the lawbecause the individual feels it appropriate to do so According to Nietzsche,humans are like lions The state or lawmaker is something of a dragon whichregulates the lions The lion says ‘I will’, whilst the dragon has ‘thou shalt’written on every scale, sparkling like gold.8Something or someone like thedragon saying ‘thou shalt’ or ‘you must do this’ does not sit comfortably with acreature like the lion which seeks to be free Yet laws or dragons of some sortthere must be If self-propelling lions or humans are to be free (although com-pelled by nature to associate with their species), then the existence of a dragon

or regulator of some sort is inherent, whether that dragon be a state, a ary community or the dictatorship of the proletariat

custom-Globalisation, thought about as the accelerated interconnections amongstthings that happen in the world, enlivens old possibilities in some plains forlions to become more self-propelling in the face of less fiery dragons If global-isation does not make the dragons less fiery, globalisation at least gives the lionssome means for sheltering from the dragons’ fires in competing jurisdictions

Globalisation should pose fewer challenges for legal theory than for other

disci-plines, not least because the associated normative transformation of the state’snormative power (or sphere of containable disruption)9evokes strong prece-dents from Western legal history

1 Psalm 19.

1 Pope John Paul II, Sacrae Disciplinae Legis: Code of Canon Law, Latin–English Edition

(Washington, DC: Canon Law Society of America, 1983), p xiv.

1 The expression ‘self-propulsion’ is used rather than the word ‘autonomy’ in this context Autonomy literally conjures independent norm-making at the interior extreme of the Space Axis, which, if it were occurring to a high degree in anyone but a child, would suggest insanity:

see Rita L Atkinson et al., Hilgard’s Introduction to Psychology (Fort Worth: Harcourt Brace,

12th edn 1996), p 510 The self-propelling individual of my reckoning does not require the threat of punishment or coercion to behave ethically, but is inspired from a personal philosophical engagement with authoritative norms.

1 Friedrich Nietzsche, Thus Spoke Zarathustra: A Book for None and All, trans Walter Kaufman

(Harmondsworth: Penguin Books, 1978), pp 26–7 This dragon is symbolically and functionally akin to Thomas Hobbes’s state, which he called ‘Leviathan’ (or Satan’s snake, in Isaiah 27: 1) 9 See ch 2, section 2.4, pp 42–8 above.

13.1.1 The original European community

In medieval Western Europe, there was a dispersal of coercion In part 2 of thisbook, we saw that the medieval Catholic church was, particularly from thetwelfth century, an autonomous institution, along with other competing insti-tutions such as the manor, crown, feudal demesne and town Systems of lawwith modern characteristics, such as feudal law, manorial law, mercatorial lawand urban law all comprised viable legal systems which existed alongside,although increasingly subordinate to, royal law and canon law There wasneither need nor place for an across-the-board executive (because authority wasnot unitary) Neither was there need for such a legislature (law was anywaythought to be uncovered, not created) Matters could sometimes fall before two

or more jurisdictions Conflict between those jurisdictions was generallyresolved according to the changing political fortunes of territorial sovereignsand the papacy, in a ‘Two Swords’ constitutionalism of the spiritual church andsecular territorial powers Oral customs, old Roman law texts and treatises, andemerging indigenous writings from the various systems provided the materialfor uncovering the law

Many types of people, including peasants and women, were ignored by thepolitical process By modern standards, this was a considerable shortcoming.The richness of the society may still be appreciated Modern state authoritycommands everybody without much moral impulsion, like computers attached

to a central network Feudal government, on the other hand, radiated moralauthority along branches of a tree generally to lesser and lesser lords who keptthe smaller branches and leaves to their reciprocal duties – all within a reason-ably common cosmology and sense of life’s meaning Moral and politicalallegiance were inspired by a Christian view of the universe which ritually per-meated daily life and social institutions, with a common history and vision forthe future preached from the pulpit To obey law probably came quite naturally

to most Lions they probably were not, but social order at least depended lessupon the fire of the dragon’s breath

13.1.2 The rise of the stateGlobalisation as a concept is usually opposed to the state In fact, the state wasessential to the interconnection of the second millennium world, at least inEurope The territorial focal point of the state was inevitably necessary in theprocess of globalisation, to gather the particularities of so much social diversityand feudal parochialism Social desire and eventually bureaucratic compulsion

to step outside the confines of the everyday life of the individual caught up inthe affairs of the local manor, town or church were created Only then couldsocial distance be more popularly traversed, with parcels of sovereignty in oneterritory becoming relevant to other territories great distances away We sawthat the broadly defined holy Roman empire had a universalist legal science

which could cope with this diversity, facilitating interconnection and theexchange of cultural information Politically, though, papal universalism wasundermined by the sixteenth-century Protestant Reformations, which expelledpapal universalism State sovereignties filled this absence, within their territor-ial boundaries, arguably without the same moral allegiance.

Following the end of the Thirty Years War in 1648, we saw in part 3 that thePeace of Westphalia was symbolic of the entrenchment of the state system inEurope and the decline of supranational papal power Final executive power wasbeing established in states, afloat in a functional international order with diplo-matic representation and treaties Contrary to most impressions, this was adirect development in the evolution of globalisation About 900 parcels of sov-ereignty in the Habsburg Empire were rationalised into about 300 Generally,this represented the disintegration of religious order in Europe (which was afragmenting tendency), alongside the movement towards a reduced number ofabsolutist centres of normative authority (an integrating tendency)

The style of this emerging authority was more political and exterior thanmoral and interior; more abstract and rational than culturally and spirituallycompelling It was entwined with legislation and the discovered ability ofhumans to invent authoritative propositions for imposition on a population.The chief mechanism for this was innovative legislation, which openly made lawrather than just declared law, from about the sixteenth century The fiery breath

of the dragon was rising in temperature to maintain order, at the very timepeople became more leonine and individualistic, with emerging freedoms forcapital owners which were to explode with the Industrial Revolution

13.1.3 The economic particularity of the nation-stateWhilst commerce-led cultural interconnection has been a characteristic ofworld and not just Western history since the most ancient of times, in the eigh-

teenth century it received a boost with the Industrial Revolution and

laissez-faire economic policies The emerging separation at that time of the economic

and political spheres, leaving the market more to its own devices, in effect

de-moralised production, and gave rise to the tendencies of a secular and

Mammon-influenced universalism in part 4 The effect on productivity wastremendous, illustrated by the hegemonic success of England in the followingcentury as the premier exemplar of this approach to political economy Theprofounder sources of what is today termed ‘globalisation’ are to be found inthis era

At the level of law and social control, the nation-state of the eighteenthcentury onwards pioneered A bourgeois phenomenon, it was captured in theFrench Declaration of the Rights of Man and Citizen That document containsthe codified articulation of the equality of humans, the inviolability of property,national sovereignty as the expression of the general will, the liberal freedom to

do whatever does not harm another and basic rule of law principles It was

directed towards economically productive persons everywhere, although tically constricted to France Nation-state authority was more terrestrial thancelestial.

prac-The parliamentary democracies which were to emerge in Western Europegenerally attracted allegiance to their centralised, sovereign, nation-states, thelions winning an actual and symbolic influence over the dragon with setbacks

on the way The parliamentary dragon still, though, required brimstone andfiery breath Parliamentary authority is several times abstracted from theindividual in community First, the individual’s authority is abstracted to a par-liamentary representative; and secondly, the vote of that representative isabstracted to the decisions and corporate personality of the parliament Furtherabstractions occur in executive implementation and judicial interpretation.Political allegiance, if any, often comes at a high cost of moral allegiance.The state of the eighteenth and nineteenth centuries wore the more obviousguise of a dragon in all realms but that of commerce In this realm, the civilsociety of lions has been able to maintain a sense of autonomy, loosely con-ceived, for almost a millennium through its very own international commerciallaw, as we saw in chapter 12 The wider world was not so fortunate

13.1.4 The rise of world societyBaldly stated, the nation-state and its economics facilitated the killing of about

150 million people in conditions of terror associated with the World Revolution

of the two world wars The natural environment did not fare much better Thistrauma gave rise to the major international or ‘global’ treaties of the twentiethcentury such as those constituting the European Union, the United Nations andthe General Agreement on Tariffs and Trade Chief vehicles of globalisation –computer technology, mass media and jet transportation – are all implicated inthe twentieth-century World Revolution

Akin to the manner in which the social trauma of continental proportions inthe late eleventh century established a world society of Christendom, nowa-days a world society appears to be developing, with tentative laws although

an emerging moral conscience That is not, however, to suggest a single, encompassing society, but rather an alternative society or societies in conversa-tion with other societies at the sub-global level The major world treaties mustnot be treated as mere obstacles to, or instruments of, social goals in the present

all-To endure, this world society must become conscious of its history, its origins,its purposes.10Such as it may be, our world society emerged; it was not justcreated and imposed in the twentieth century The twentieth century UniversalDeclaration of Human Rights (in chapter 10) required the eighteenth-centuryDeclaration of the Rights of Man and Citizen (in chapter 8) which required the

10 See Philip Allott, The Health of Nations: Society and Law Beyond the State (Cambridge:

Cambridge University Press, 2002), ch 11.

eleventh-century advent of All Souls’ Day (in chapter 5), and many interveningdevelopments All souls had to be equal before all men could be equal before allhumans could be equal, in the West.

Is obedience to globalist laws and norms self-propelled, as, for example,feudal law or canon law was part of the medieval psychology? My own sense isthat allegiance to different systems comes increasingly naturally for differentpeople,11and that the dispassionate, political approach to law is slowly ceding

to a more moral approach in some realms even if breaches by state governmentscontinue Growing global contests between individuals, non-governmentorganisations and the nation-state attest to this A polarisation seems to beensuing between those who are open to the idea of world society versus thosewho cannot see past state sovereignty Some people are attracted or open to thenorms of the world society through, for example, treaties received in principle,although not necessarily as, state law, which provide for human, environmen-tal or free-trade rights Others may suddenly find themselves allied with thelegitimacy of the nation-state There are progressive and reactionary sensibil-ities which attach to both positions, depending upon the subject-matter of thecontested norms and the particular views of history and visions of the futureheld by the onlookers

Such competitions between jurisdictions vividly recall a medieval precedent.They venture further than the competing jurisdictions which underlie federallyorganised states They testify to competing systems of norms between territor-ial societies and societies which exist beyond territorial boundaries Like amedieval peasant seeking refuge in a town, choosing urban law over manoriallaw, an individual now might look to international human rights or free-tradelaw to vindicate a freedom denied by the domestic system of law Perhaps morepeople are not now pursuing self-propelled freedom like lions Maybe there aresimply more dragons or lawgivers for the lion to choose from Either way, thenecessary consequence is the articulation of norms and the need to locateoneself meaningfully in the world Competitions between jurisdictions maywell be inherently good,12 if the jurisdictions are compelled to justify theirnorms and to reconcile conflict also by reference to other ways of looking atthings

In the West, a new, universalist, secular religious authority increasingly pies the place once occupied by the Judeo-Christian God in legitimating thelaws of competing jurisdictions These new, universalist norms embody atension between human rights and free trade At the same time, the modern

occu-11 Perhaps this is more true in respect of deeper or more fundamental laws such as laws of war and human rights; and less so for venial laws such as motor tra ffic laws and other collective laws impinging upon individual convenience (e.g., water or waste restrictions).

12 It is on this basis that I believe the most e ffective arguments are to be made against European civil codification and tendencies towards centralisation See e.g Pierre Legrand, ‘Against a

European Civil Code’ (1997) 60 Modern Law Review 44–63, arguing that European

‘plurijurality’ is under threat from administrative convenience and fear.

incarnations of medieval religious beliefs remain important to the ness of the legislators Occasionally, political leaders give voice to their religiousconvictions and constituencies For the most part, though, religious, moralisticinputs into politics are concentrated in politicians’ private campaigns for elec-tion and later reconstituted publicly into politically safe, rationalistic languageand authority.

conscious-Before we were able to evaluate the constitutional significance and dents of globalisation, we had to arrive at a notion of ‘globalisation’ Thatimportant notion deserves reflection

antece-13.2 Revisiting the concept of globalisation

The idea of globalisation we began with was ultimately the idea of globalisationwhich sustained the enquiry in this book, after exploring more elaboratenotions in chapter 2 The relatively simple notion retained was of globalisation

as the accelerated interconnections amongst things that happen in the world.Some features accompany this idea of globalisation

Significantly, globalisation is a process It is not a thing One may touch

glob-alisation no more than one may touch evolution or entropy No single tion or cause-and-effect phenomenon defines globalisation as such JohnRalston Saul, for example, has promoted the idea that globalisation is dead.13

descrip-What he is talking about when he uses the word globalisation is a very narrowconcept of economic globalisation (the ‘death’ perhaps being just a prematurelypronounced sleep) Of course, there is no monopoly on the meaning of a wordsuch as globalisation All usages considered, globalisation means much morethan just economic rationalism, although it does comprehend Saul’s definition

of globalisation as a fraction of the total significance of the idea

I have maintained that globalisation can only be grasped if it is thought about

in association with a wide variety of social issues, such as, for example, national trade and capitalism, diverse cultures facing challenge from universal-ist sources and vice versa, and technology altering the way we relate to space andtime All of these phenomena have demonstrated, since the latter twentiethcentury, remarkable energies which seem to be related In this sense, globalisa-tion, whilst having a long historical background as old as merchants and reli-gious proselytisers, appears to be a process which deserves to be recognised anddefined by the experiences of the latter half of the twentieth century and beyondinto the twenty-first century, spawned by the World Revolution

inter-If this is world domination, then it is world domination by a dawning sciousness and energised social network and information economy As we saw

con-in chapter 1 with reference to H Patrick Glenn’s work, a tradition is made up ofinformation.14 The central place of this information–tradition interchange

13 John Ralston Saul, The Collapse of Globalism and the Reinvention of the World (Camberwell:

Penguin Viking, 2005) 14 See ch 1, section 1.1.3, pp 6–7 above.

underlying globalisation is captured in Manuel Castells’ focal point – ‘the mational economy’ – for his three-volume foray into the global condition ForCastells, the economy which has emerged since the 1970s is informationalbecause ‘the productivity and competitiveness of units or agents in thiseconomy fundamentally depend upon their capacity to generate, process,and apply efficiently knowledge-based information’.15Globalisation, then, asthe accelerated interconnections amongst things that happen in the world, isessentially about the exploding nexus of alternative traditions and informationfrom those traditions This information includes all of the logical, cultural,political and moral references which have dynamically interacted to make thisera of the West so prone to change in all aspects of human endeavour.

infor-By considering globalisation in these informational terms which emphasisethe mobility of tradition, we can comprehend why globalisation can be per-ceived to represent world domination and be threatening to established cul-tures Universalised Western values reflected, for example, in World Banklending criteria to the Third World, can be characterised on the Time Axis ofthe Space–Time Matrix as the imposition of a Western economic vision of thefuture over less industrialised, more conservative visions On the Space Axis,this would suggest an impersonal, exterior political vision unevenly superim-posed on the cultural, moral bonds of an agrarian or traditional society.Information flows and dynamics embodying and reflecting competing normsare therefore important for understanding globalisation Those flows areuneven, and it is that unevenness which gives rise, understandably, to the fixa-tion by many observers on domination and imperialism as the signal charac-teristics of globalisation Globalisation is, however, more than just domination.There are pluralistic and emancipatory tendencies in the process of globalisa-tion too, such as the increasing recognition of marginalised people Dependingupon the universalist values of globalisation chosen for discussion, they are notall intrinsically Western, such as the prohibition, in principle, of murder, rapeand torture

13.3 Some implications for legal education and practice

Earlier I suggested, using Nietzsche’s simile, that humans are like lions and thelawmaker (typically the state) is like a dragon Ideally, the lawmaking dragonsshould breathe less fire, and humans as leonine creatures should be as free astheir endowments would allow them whilst living in a stable social order To thisend, law- and norm-making processes should incorporate references from trad-itions which appeal to the individual at the moral level and cause the individ-ual to be normatively self-propelled The turn which globalisation signals, awayfrom the particular norms of the nation-state to more universalist principles,

15 Manuel Castells, The Information Age: Economy, Society and Culture, 3 vols (Malden: Blackwell Publishers, 1997), vol I, The Rise of the Network Society, p 66.

across traditions, should be watched with optimism This should be coupledwith a willingness to debate the universality of the norms in question by way ofphilosophically engaging them with the norms allied to one’s innermost per-sonal attitudes How might this be pursued in practice, today?

Much can, and is, being written about legal education and globalisation.Some issues have been touched upon in previous chapters of this book, such asmutual recognition of qualifications from other states and the cosmopolitanism

of student populations and subject offerings A pattern of law generation andmaintenance is recurring Just as we saw a medieval European, universalisticlegal science generated by a transportable legal qualification from one of manylaw schools teaching Roman and canon law, now too we see a common univer-sity socialisation of global proportions A possible ‘Americanisation’ of legalpractice looms For example, Japan has ‘one of the strongest concentrations ofHarvard Law School alumni mainly in the bureaucratic and financialfields’.16 It has even been suggested that a reception of American law as ius

commune is occurring, akin to the European reception of Roman law ius commune in the late middle ages.17Cases from foreign jurisdictions are citedincreasingly in domestic jurisdictions, especially at the appellate level

All of these local diversities interacting with universalist norms can befocused with clarity into a vision for a socially inclusive approach to legal edu-cation and law

13.3.1 The contingency of law and justice

If a society is to flourish in its ordering and quest for improvement, education

in general, and legal education in particular, must rediscover their former, bined moral and political relevance to the psychology of identity Law as it istaught must be presented in lectures, tutorials and texts in such a way that it iscapable of appealing to the individual in all four dimensions of the Space–TimeMatrix Take a very general example of norms of native title law What is thepolitical significance of those norms? What sorts of moral and cultural prob-lems might individuals have with those norms? What sort of view of history arethose norms based upon? What do they mean for the future? By appreciatingthat different individuals and corporate groups may have very different (andunderstandable) responses to these questions, the way is opened not only toparticipating in that discourse but also to learning the complexities of that doc-trinal area of law and practising it more effectively The evolution of this law,and much law in general, is the story of lawyers, academics, legislators, litigantsand activists opening the leaves of the law reports and statute-books to differentperspectives and allegiances We have seen this in our discussion of law as a

com-16 Yves Dezalay and Bryant Garth, ‘Law, Lawyers and Social Capital: “Rule of Law” versus

Relational Capitalism’ (1997) 6 Social & Legal Studies 109–41, 129–31.

17 Wolfgang Wiegand, ‘The Reception of American Law in Europe’ (1991) 39 American Journal of

Comparative Law 229–48.