INTIMATIONS OF GLOBAL LAW A strain of law reaching beyond any bounded international or transnational remit to assert a global jurisdiction has recently acquired a new prominence. Intimations of Global Law detects this strain in structures of international law claiming a planetary scope independent of state consent, in new threads of global constitutional law, administrative law and human rights, and in revived notions of ius gentium and the global rule of law. It is also visible in the legal pursuit of functionally differentiated global public goods, general conflict rules, norms of legal pluralism and new legal hybrids such as the global law of peace and humanity law. The coming of global law affects how law manifests itself in a global age and alters the shape of our legal-ethical horizons. Global law presents a diverse, unsettled and sometimes conflicted legal category, and one which challenges our very understanding of the rudiments of legal authority. neil walker holds the Regius Chair of Public Law and the Law of Nature and Nations at the University of Edinburgh.
global law series The series provides unique perspectives on the way globalisation is radically altering the study, discipline and practice of law. Featuring innovative books in this growing field, the series explores those bodies of law which are becoming global in their application, and the newly emerging interdependency and interaction of different legal systems. It covers all major branches of the law and includes work on legal theory, history and the methodology of legal practice and jurisprudence under conditions of globalisation. Offering a major platform on global law, these books provide essential reading for students and scholars of comparative, international and transnational law.
INTIMATIONS OF GLOBAL LAW NEIL WALKER
University Printing House, Cambridge CB2 8BS, United Kingdom Cambridge University Press is part of the University of Cambridge. It furthers the University s mission by disseminating knowledge in the pursuit of education, learning and research at the highest international levels of excellence. Information on this title: /9781107091627 2015 This publication is in copyright. Subject to statutory exception and to the provisions of relevant collective licensing agreements, no reproduction of any part may take place without the written permission of Cambridge University Press. First published 2015 Printed in the United Kingdom by Clays, St Ives plc A catalogue record for this publication is available from the British Library Library of Congress Cataloguing in Publication data Walker, Neil, 1960 author. Intimations of global law /. pages cm (Global law series) ISBN 978-1-107-09162-7 (hardback) 1. International law. 2. Globalization. 3. International cooperation. 4. Global Governance. I. Title. KZ1321.W35 2014 341 dc23 2014032236 ISBN 978-1-107-09162-7 Hardback ISBN 978-1-107-46378-3 Paperback Cambridge University Press has no responsibility for the persistence or accuracy of URLs for external or third-party internet websites referred to in this publication, and does not guarantee that any content on such websites is, or will remain, accurate or appropriate.
For Gillian
CONTENTS Acknowledgments page ix 1 Why global law? 1 1.1 The perils and promise of global analysis 1 1.2 Reconceptualising global law 9 1.3 The coming of global law 26 2 Taking law to the world 29 2.1 Introduction 29 2.2 Going global 31 2.3 Cultivating global law 39 2.4 Global lawyers and the making of global law 47 3 Seven species of global law 55 3.1 Introduction: two visions of global law 55 3.2 The catalogue of global law I: convergent approaches 58 3.3 The catalogue of global law II: historical-discursive approaches 86 3.4 The catalogue of global law III: divergent approaches 106 4 The circuit of global law 131 4.1 Introduction 131 4.2 The double normativity of global law 132 vii
viii contents 4.3 Global law s partial visions 135 4.4 The mutual reproduction of global law 139 4.5 The relative autonomy of global law 144 5 Intimations of global law 148 5.1 Introduction 148 5.2 Suggestions of global law 151 5.3 The inexorability of global law 173 6 Confronting global law 178 6.1 Reconsidering global law 178 6.2 Two platforms of critique 180 6.3 Charging global law 187 6.4 Recharging global law 192 Index 206
ACKNOWLEDGMENTS This book began as the Montesquieu Lecture, delivered at Tilburg University in June 2012 on the occasion of the inauguration of the new Law Schools Global League. That, of course, was just the kind of event a book looking out for Intimations of Global Law ought to be taking a close interest in. My first thanks, then, are due to my Tilburg hosts, Willem Witteveen, Randall Lesaffer and Morag Goodwin, both for providing me with a platform for developing the outline of the book and for taking an initiative that helped me make proper sense of my subject matter. The passage from lecture to book was made much easier, and much more enjoyable, by a number of other generous invitations to try out my ideas. I learned much from lecture audiences and seminar participants at the Universities of Amsterdam, Durham, Helsinki, Southampton and Tilburg (again), at the European University Institute in Florence, at University College London, at the Católica Global School of Law in Lisbon, and at the icourts Institute of the University of Copenhagen. I am grateful to my hosts at all of these institutions. I also owe a special debt of gratitude to my own Edinburgh colleagues at the Law School, the Centre for Law and Society and the Global Justice Institute, who together organised what proved to be a stimulating and, for me, invaluable full-day discussion of an early draft of the manuscript. Many people have engaged with my ideas on global law in ways that have been extremely helpful. They include Daniel Augenstein, Loïc Azoulai, Christine Bell, Oren Ben-Dor, Nehal Bhuta, Dan Carr, Emilios Christodoulidis, Carlos Closa, Sharon Cowan, Marise Cremona, Deirdre Curtin, Gráinne de Búrca, Bruno de Witte, Luis Duarte d Almeida, Navraj Ghaleigh, Alun Gibbs, Marco Goldoni, Morag Goodwin, Jane Holder, Claire Kilpatrick, Mattias Kumm, Randall Lesaffer, Cormac MacAmhlaigh, Euan MacDonald, Daithí Mac Síthigh, Miguel Maduro, Ruth Rubio Marin, Joana Mendez, Claudio Michelon, Hans Micklitz, Elisa Morgera, Steve Neff, André Nollkaemper, Aiofe O Donoghue, Dennis Patterson, George Pavlakos, Ulli Petersmann, Haris Psarris, Gonçalo de Almeida Ribeiro, Paolo ix
x acknowledgments Sandro, Giovanni Sartor, Martin Scheinin, Robert Schütze, Kathryn Sikkink, Mark Telford, Stephen Tierney, Jim Tully, Kaarlo Tuori, Bert van Roermund, Marlene Wind, Jonathan Zeitlin and Peer Zumbansen. AveryspecialmentionisduetoZenonBankowski,HansLindahl, Martin Loughlin, Gianluigi Palombella, Alec Stone Sweet and William Twining, each of whom took the considerable trouble of reading and commenting on the entire manuscript. Thanks, too, to Finola O Sullivanat CambridgeUniversity Press,who met all reasonable expectations, not to mention quite a few unreasonable ones. And also to Tom Daly, who proved to be a quite brilliant editorial assistant in the early stages of pulling the manuscript together. And last but never least, I have my family to be thankful for. Even more so than most books, this one was written in the early mornings, late at night, and at weekends. To Emilia, Lewis and Ross, and particularly to Gillian, many thanks for your constant patience, support and love. The book would never have seen the light of day without you.