Introduction: two visions of global law

In Chapter 1 we defined global law as any practical endorsement of, or commitment to, the universal or otherwise global-in-general warrant of some laws or of some dimensions of law. We noted that this was a broad definition permitting a cross-cutting range of internal distinctions. Global law so understood may or may not be sourced and institutionalised at the planetary level. It can be more or less actively endorsed and fully realised, and more or less concrete and positivised in its normative claim or orientation. It can also be either universal or merely planetary in scope or ambition, provided it meets a threshold requirement of not being confined by and to any particular sub-global territorial jurisdiction.

In the catalogue of global law set out below, each of these distinctions arises at various points, yet none provides the primary principle of classification. Instead this is supplied by a more basic form of variance that recalls one of the core dynamics of globalisation introduced in Chapter 1. That distinction lies between two conceptions and two very broad visions of global law; between two different ways of imagining how global law might shape or reshape the pattern of distribution and connection of law across the planet. One such conception reflects a focal concern to encourage a general dynamic of legal convergence, while the other conception reflects a focal concern to accommodate a general dynamic of legal divergence. Seeking to counter or overcome difference, a convergence-promoting conception treats global law as the object of collective agreement or cultivation, or as some other commonly acknowledged broad normative frame; this involves either a vertical arrangement of authoritative global rule-making or rule-application, or the global endorsement of some generic feature(s) of law. Seeking instead to manage difference, a divergence-accommodating conception employs global law as a means of tracking, harnessing and confining diversity; this involves either a horizontal framework of co-ordination of different legal regimes or some form of legal recognition and refinement of the separate elements of a multiverse of globally extendable normative orders. In a nutshell, while convergence-promoting approaches involve one or both of the attributes of hierarchy and normative singularity, divergence-accommodating approaches are characterised by the twin themes of heterarchy and normative plurality.

Introduction

Let us recall from our introductory discussion of the multifaceted character of globalisation that the globalisation of law, just like the globalisation of politics, or the economy, or culture, or any other dimension of social life, follows a relatively autonomous course. Law interacts closely with all these other dimensions. And when we come in Chapter 3 to discuss some of the wider globalising impulses that have infiltrated our imagination of legal order and affected our conceptions of legal doctrine, so feeding the various new species of global law, we will observe a wide range of causal influences acting upon law from the outside. But if we are to take the relative autonomy of legal globalisation seriously, we must also attend to the reasons why and the ways in which it follows a distinctive path and makes a distinctive contribution. One part of the answer has to do with historical features of legal ordering and legal dogmatics. Many areas of modern social organisation, even against the backdrop of increasing access to a global range of lifestyles and practices, continue to be deeply recursive, exploiting past experience and tried and tested knowledge and taking advantage of embedded conventions of behaviour and existing patterns of consensus or acquiescence. Given that the very validity of law as law has always also been closely bound to its settled pre-existence and so to its past embeddedness, however, the historical record of law remains a particularly significant resource in accounting for its global articulation. Conversely, however, global law is equally distinctive – equally tied to its own peculiar logic and autonomous of outside forces – in its emphasis on future projection, and in how it grasps the present as part of that projection.

The matter of global law's peculiar relationship to time, and how this is reflected in its ‘intimated’ quality, is one we will also return to and develop in some depth. In the present chapter, however, we will focus not upon the deep past or upon the near future of law, but on another element that accounts for its relatively autonomous globalising trajectory: namely, the ‘inside world’ of contemporary professional and academic practice.

Reconsidering global law

Our sense of global law as a contemporary trend that is as insistent as it is unresolved brings us, finally, to the question of how we might consider its future development.

We should begin, however, by sounding a note of caution. Perhaps there is simply nothing more we can say, and, in fact, nothing further to be said about the intimations of global law. In the opening chapter the primary aim of our inquiry was stated to be diagnostic rather than prescriptive. Our priority was to specify the nature and forms of global law and to assess its condition, as well as its preconditions. We set out, in particular, to examine the various species of global law organised under the two general convergence-promoting and divergence-accommodating conceptions, to consider why and how they have emerged, and to investigate how they relate to one another. Yet nothing we have said from this analytical and investigative standpoint has sought to take sides between the two conceptions, and the various species arranged under the two conceptions, or to argue that some should be ranked higher than others in order of preference or significance. And, arguably, nothing we might say could make a difference, or even should seek to make any difference, to the approaches taken.

The promoters of convergence, armed with a measure of general cosmopolitan vision and optimism, will continue to make formal, structural and abstract-normative arguments in favour of a certain type of global law, and will do so with or without the help of one of law's grand historical discourses, such as constitutional law or international law. The accommodators of divergence, preoccupied with the problems rather than the opportunities of devising global legal forms in the face of such an array of sharply differentiated and often contending transnational legal regimes, each with its own priorities and domain interests, will display the more selective commitment of a functionally specific approach or a hybrid approach, or the more modestly reconciliatory ambition of the laterally co-ordinate approach, again with or without the help of one of the grand historical discourses.