The Concept of Global Law: what is it and what are the rules?

A guest post from Lucas Miotto Lopes, Convenor of the Edinburgh Legal Theory Group, who received an award of £400 from the GJA Innovative Initiative Fund to host a seminar on ‘The Concept of Global Law’.

With the sponsorship of the Global Justice Academy the Edinburgh Legal Theory Group held the seminar entitled The Concept of Global Law on September 24th. Jorge Fabra, a PhD candidate at McMaster University, was the presenter and Professor Neil Walker, from the University of Edinburgh, acted as the discussant. We had the privilege of counting with a wide and diversified audience – from undergrads to staff members. Participants were keen to engage in discussion and offered both critical remarks and constructive feedback. As a result, discussion was very live, friendly and informal.

Jorge Fabra addresses the seminar groupJorge’s main aim was to use the analytical jurisprudence framework to better understand what global law is. He started with some remarks on the ambiguity of the phrase ‘global law’. According to him, this phrase is used to refer to different things, e.g.: (1) law in the era of globalization; (2) putative forms of law, such as the lex mercatoria, lex digitalis and lex sportiva; or to (3) an ideal for international governance. He then argued that none of these meanings attached to the phrase capture the idea that global law is some sort of institutional legal practice, which, for him, is the most interesting topic to debate. Therefore, according to Jorge, if our main interest is to know whether global law is some form of institutional legal practice, we must take the phrase to refer to three things:

1. Global Legal Rules

According to Jorge, global legal rules are not merely rules of particular legal systems. They are rules that arise from the convergent behaviour of officials of different legal systems. As such, they are rules that cannot be derogated or eliminated by the action of a single legal system. However, Fabra argues that these global legal rules should not be identified by their mere global scope and general acceptance. What is more important is that these norms claim to regulate global issues.

2. Global Legal Orders

Fabra sees global legal orders as practices connected with the idea of semi-autonomous legal systems (systems that are independent from the state). They are clusters of global legal norms – which claim the regulation of global issues – that stem from the activity of practitioners of particular fields, such as trade, sports, education, etc. Fabra tried to use the Hartian framework of legal systems to account for the structure of these global legal orders. He then anticipated some difficulties for such project – such as the difficulty of finding a global rule of recognition that determines the criteria of validity of global legal norms – and presented possible solutions to them.

3. Global Legal Systems (or the law of laws)

According to Fabra, this third kind of global legal practice consists in a set of restrictions about the existence and operations of other forms of legal order, such as states, inter-state law and autonomous/semi-autonomous legal orders. They include sets of rules about the creation, recognition and extinction of legal systems, rules that establish the principle of pacta sunt servanda, criteria for solving conflicts, some rules about the protection of human beings (e.g. norms of humanitarian law and transitional justice), and rules that determine the responsibility of particular states. These sets of rules are also distinguished by a particular kind of claim they make. They claim to apply all over the over the world, to regulate on behalf of a putative international community, and to constitute a legal system applicable to all forms of law.

During the seminar, Fabra also criticised Neil Walker’s (seemingly) rival account of Global Law. He characterised Neil Walker’s view as the view according to which global and law is ‘intimated’, i.e. ‘incomplete, unrealized and unsettled’. Fabra also claims that because of the intimated character, Neil Walker is committed to the thesis that global law is a normative concept that merely refers to what law should become. His main argument against Neil Walker was that by depicting global law as some sort of ideal, Neil is not capable of offering any satisfactory answer to important conceptual questions related to our current legal practices: could we say that there are any global legal rules? If yes, do they form a legal system? What are the sources of these rules?

Neil Walker responded to Fabra’s criticism and argued that his account of global law does not simply depict global law as an aspiration or an ideal of what law should become. By claiming that global law is ‘intimated’ Neil meant that global law is a current practice under construction – there is already an advance trace of it. He then also explains how his account could deal with the conceptual questions proposed by Fabra. Neil also challenged Fabra’s use of the Hartian framework to explain the ideas of global legal orders and (in particular) global legal systems.

At the end, Fabra pointed out that there are still many more conceptual questions about global law that should be addressed (such as questions about the autonomy of global legal systems and their relationship with global legal orders) if we wish to completely understand this phenomenon (or phenomena). General Jurisprudence, therefore, plays an indispensable and valuable part into any serious inquiry about global law.