Introduction

In the introduction to the previous chapter we referred to an underlying unity of concern across the quite different visions – convergencepromoting and divergence-accommodating – and the various species of global law. We also alluded to how that unity in diversity expresses itself as a relationship of mutual presupposition and mutual tension. Our subsequent exploration of the various species of global law now allows us to add meat to the bare bones of these propositions. We are able to identify the qualified basis upon which convergent and divergent conceptions, and the various species of global law bearing these conceptions, together with the various images associated with these conceptions – pyramid, umbrella, vessel, thread, chain, segment and flow – are able to co-exist and co-occur in principle.

In addition, we are in a position to demonstrate how that in-principle cohabitation among the different species of global law feeds into the close yet sometimes rivalrous interdependence of their embryonic practice. The incipient category of global law, in other words, possesses a self-generating and self-sustaining quality, but it is a quality that is also closely bound up with its self-critical and internally contested edge. This adds an important dimension to our understanding of the emergence of global law. We have seen in the previous chapter, in tracing the various pressures that shape the different species of global law, how much of its foreground impetus comes from the increased density and diversity of international and transnational regulation. Equally, we observed in Chapter 2 how much of its background influence comes from the occupational culture and practice of lawyers and jurists. In addition, we are now able to claim, global law is a theme that both feeds and challenges itself, and so generates forward impetus, by dint of the very character and circuitous interplay of its discourse and practice.

The double normativity of global law

Our argument here proceeds in three stages. In the first place, we should take note of the area of common ground occupied by the two positions. For all their apparent differences, neither the convergence-promoting nor the divergence-accommodating conception embraces the diversity of transnational law as an unalloyed good, just as proponents of both conceptions would readily accept that there are profound practical and ethical limits to any attempt to eliminate the diversity of transnational law.

Introduction

Our sense of global law as the concurrent emergence of a wide range of claims regarding law's worldwide warrant brings us to the idea of intimation. The very manner in which global law, or its functional equivalents, is approached, appreciated and engaged with as a distinctive modality of law, so signalling an epistemic shift among law's transnational community, tends to be tied up in one way or another with its ‘intimated’ quality. In particular, the intimated quality of global law connects closely with the particular kind of claim to authority that global law entails. Global law flows out of the decentring of a sovereigntist framework and the resulting challenge to conventional state-centred understandings of modern legal authority. Yet the form and process of global law's emergence reveal various special features of its own uncertain relationship to authority, a full appreciation of which requires a close examination of the role of all those who are involved in endeavours to fashion and to authorise global law.

The gathering intimations of global law, as we shall see, have particularly profound consequences for the academic study of law and for the study of the academy alike. For what we are experiencing is a twofold change in the nature of our focus on law as an object of study. On the one hand, and most obviously, the movement towards transnational law and, in turn, to the special type of transnational law we have specified as global law, implies a change in research and teaching priorities – with the balance tilting somewhat from the national to the post-national. On the other hand, the very legal quality of global law as ‘intimated’ is also somewhat different from other forms of law. The kind of material that counts as this new form of law is distinctive, as is the kind of argument and evidence that counts towards this new form of law. In turn, this distinctiveness includes a new emphasis on the academy as participants in producing, advocating or refining global law, with all its attendant difficulties and challenges, so highlighting a renewed requirement to focus on the academy itself as an object of study.

This is a book about how we might fruitfully think about global law. Few terms are more topical in the transnational legal literature. Yet there has been little serious discussion – and little agreement where there has been discussion – on what is meant by ‘global law’, if, indeed, it means anything of note at all. In what follows, I suggest that we can nonetheless arrive at a core sense of global law as an emergent idea and practice, and that our so doing is key to any proper appreciation of the ways in which law is affected by, and is responding to, the contemporary wave of globalisation. The elucidation of that core sense will not, of course, tell us how law – global or otherwise – should be (re)shaped, and how it ought to be deployed to tackle the problems of global justice. Conceptual analysis and empirical inquiry alone can never solve normative problems. Yet they can help us to understand these problems more clearly, and to provide a better route map through the moral and political maze. The hope is that the reader will emerge with a sharper sense of the complexity of the global legal environment, and of the vital forces underwriting that complexity, and so with a keener appreciation of why and how the contemporary legal world has evolved as it is has and what it would take to change it.

But what of the view that, far from supplying an explanatory touchstone, stripped of its superficial glamour ‘global law’ is simply the wrong place to start in accounting for changes in the contemporary legal condition? It is with that most basic objection, and the serious concerns about ‘global’ thinking in general that stand behind it, that we begin.

The perils and promise of global analysis

Don't mention the word

In his voluminous writings William Twining has been relentlessly curious and uniquely informative about the processes, practices, institutions, doctrines, values and aspirations through which law becomes less centred upon the jurisdiction and less dependent on the organs of the modern state, and instead gradually comes to assume a ‘global’ significance.