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Document Type

Article

Publication Date

Summer 8-1-2020

Publication Citation

27 Indiana J. Global Legal Studies 33 (2020)

Abstract

Authority is written against the background of intense resistance to globalization processes by a range of political movements and grassroots organizations. These processes are complex and have a variety of dimensions. One of these is the emergence of global legal orders, which I define, in a rough and ready manner, as relatively autonomous legal orders that claim or aspire to claim global validity for themselves. They too-most obviously the World Trade Organization (WTO)-are the butt of resistance. Whatever its forms and aspirations, resistance to globalization is fueled by their peculiar dynamic. Indeed, emergent global legal orders spawn massive exclusion when including individuals and groups in a more encompassing unity. Pointedly, resistance by anti-and alter-globalization movements shows that individuals and groups are excluded because they are included in globalizing legal orders. This dynamic is puzzling, embarrassing, and disturbing.

Puzzling, because it suggests that-contrary to what has been taken for granted in state-centered theories of law-territorial borders are not the primordial mode of spatial inclusion and exclusion. One can plausibly argue that borders continue to organize the inside/outside distinction for transnational legal orders such as the EU. After all, its external borders are the borders of certain of its Member States. But by definition, the domestic/foreign distinction no longer makes sense for a legal order that claims global validity for itself. This is why the notion of global law is both puzzling and interesting in a way that eludes transnational law: resistance by anti- and alter-globalization movements forces us to reconsider what we mean by legal inclusion and exclusion. More generally, it demands that we look again at whether and how inclusion and exclusion might be constitutive features of legal ordering in general, and not only of, say, state or transnational law.

Embarrassing, because legal theory has surprisingly little to say about boundaries. The borders of states have, of course, been the object of considerable attention in studies that document the emergence of the territorial state and the so-called Westphalian paradigm. And there is no dearth of studies that evince how states and their borders are challenged by transnational and globalizing legal orders. But there are few-if any-general theories of legal and political boundaries, of which the state's territorial borders are a historically contingent species. The one exception I am aware of to this theoretical paucity is systems theory. By adverting to the fact that no legal system is possible absent a boundary that joins it to and separates it from its environment, systems theory offers an incisive and illuminating contribution to a theory of legal ordering as a process of setting boundaries. Yet it struggles to adequately interpret the nature of spatial boundaries, in light of its theoretical presuppositions. In particular, systems theory assumes that emergent global legal orders are no longer spatially bound. Legal theories of an analytical bent tend to pass off the question about legal boundaries as part and parcel of a sociological inquiry. In short, it is safe to say that contemporary legal theory has expended most of its energies in fighting out the so-called "identity" question concerning the specific nature of legal orders and their relation to other normative domains-morality in particular-neglecting the question about the relation between boundaries and legal order, a question that William Twining dubs the "individuation" question.

Disturbing, because if individuals and groups are excluded for their inclusion in global legal orders, the pressing question arises whether a legal order is imaginable that could escape the logic of inclusion and exclusion. Notice that I am not linking this question to the globalization of capitalism, which has driven so much of globalization processes as they unfold before our eyes. My question is absolutely general: Is any legal order possible that could include all, without any exclusion? Here again, focusing on emergent global legal orders brings the stakes of this question into particularly sharp relief, in light of their alleged all-inclusiveness.

At issue are the conditions governing the authoritativeness of the acts through which the boundaries of legal orders are posited. If no legal order can emerge absent a spatial closure that could have been drawn otherwise, is an authoritative politics of boundaries at all possible in a global setting? Can we avoid lapsing into relativism if, as I aver, we must forgo the possibility of realizing an all-inclusive-universal-legal order?

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