Watching President Obama make the European rounds, including a stop at the G-20 summit in London, reminds us that some level of governance and civil society exists at the global level.  While heads of state meet to discuss international economic policy, including coordination of policy responses to weakening economies across the world, citizens protest militarization, economic inequality, and a banking system that helps to redistribute wealth to developed nations, and once there to wealthy individuals.  While these meetings do not by any stretch constitute deliberative bodies with power to legislate, they do provide discussion and action forums where the leaders who do have to power to shape policy at the domestic level can formulate and plan implementation of public policy in a collaborative fashion. 

Sometimes they even agree to take specific action to regulate or manage sectors of the global economy (paywall), and relinquish some chunks of sovereignty in the process. (h/t Mark Kleiman)  In this case, the group agreed to change current banking secrecy rules and close tax havens.  These are serious concessions on domestic policy by sovereign states that have apparently decided that integration into the global economy is more important than protecting domestic interests.

With things, ideas, money, and to a lesser extent human beings flowing across borders more and more easily, states and private firms look for ways to manage this interdependence by seeking ways to accomodate variations in legal traditions and systems.  Sometimes, governments drive this process by adopting regulatory regimes, such as the Law of the Sea Treaty, that protects sovereignty but establishes the definitions and frameworks that make it possible for the state system to function (this, by the way, suggests that the state system may be less anarchic than many political scientists would have us believe).  Often, private firms seek global regulatory regimes to protect their property rights (See Susan Sell’s Private Power, Public Law).    At any rate, this often manifests itself in horizontal networks that link national officials across borders, which disaggregates the state and takes international policymaking out of the hands of legislators and heads of state (See Anne-Marie Slaughter’s A New World Order).

Global governance and civil society requires a transnational legal regime to manage contracts, criminal activity, and disputes between actors, in and out of government.  Such a regime would of course partially consist of international legal agreements such as the Geneva Conventions and Law of the Sea treaties.  But it would also have to include some process for adjudicating cases between actors from different legal systems.  This in turn suggests a need for some domestic consideration of international legal norms and frameworks, if only because disputes between international actors are still argued in national judiciary systems.

Conservatives reject this view, as we can see from their reaction to the possiblity that President Obama might consider Harold Koh, of Yale, as a potential Supreme Court nominee, and his nomination for the top attorney position in the State Department.  They argue that the US should not relinquish autonomy over US law in favor of that preferred by “Europe’s leftist elites,” whining that transnationalist justices really just want to use foreign legal principles to reach results they like, however contrary to the Constitution they might be.  Mr. Gaffney can be forgiven for worrying himself over this, given that importation of prevailing international norms against torture might subject him to sanction for his role as a supporter of “vigorous interrogation techniques” and the Bush Administration’s anti human-rights regime.  But both are trying to close the barn door after the horse has long since run off: transnational law is not a threat, but a reality.

To support their criticism, they cite a law review article (Why Transnational Law Matters) Mr. Koh wrote for a 2006 issue of the Penn State International Law Review  which focused on changing the first year law school cirriculum to reflect increasing globalization and interdependence of the law.  In the article, Mr. Koh cited some examples of the way legal principles become adopted across systems and jurisdictions.  This works both ways: sometimes international principles become domesticated, and at other times domestic law is internationalized and spreads across systems from a humble beginning. 

This article does leave the reader with the impression that Koh finds some value in some legal ideas that did not originate with Thomas Jefferson and the boys.  But the key point he makes–which he uses to support reform of the law school cirriculum–is that this is already happening, and has more or less been a constant part of the development of legal theory since Man decided to construct legal frameworks to manage human interaction and adjudicate disputes.  Moreover, the agents of transnational legal development include international actors of all shapes and sizes, including private citizens, corporations, non-govermental organizations, ethnic groups, soldiers, financiers, and anyone else who wants to operate or interact across international borders–not just elite Europeans and liberal Supreme Court Justices.  The market helps to drive this process as it expands to include international economic transactions, and confining legal principles to our own understanding of things like contracts and ownership would severely limit the ability of markets to get the most efficient use out of the components of production.  Transnational law is here to stay.

Which means that people like Whelan and Gaffney should stop fretting about how to stop the transnationalization of law and start trying to figure out a way to manage this process so that our system strongly influences the principles governing whatever global legal system develops.  We should welcome Koh’s “transnational legal process” because it offers an opportunity to spread our legal and social system, including property rights, personal freedom, and capitalism, to other parts of the world.  Instead of trying to protect ourselves from the virus of foreign legal thought, we should embrace the process and become the virus ourselves.  It might help us spread democracy without killing so many potential voters.

Tags: Global Civil Society, Global Governance, International Law, International Relations, Supreme Court, Transnationalism