Ten Theses

2.1. Thesis One: Global Generalisations about Law

Thinking about globalisation encourages us to adopt a broad global per-spective in order to think in terms of broad overviews and total pictures.

However, it also tempts us to generalise about law beyond our capacity.

On the whole, we lack concepts, well-constructed hypotheses, and reliable data to make many evidence-based generalisations about law in the world as a whole. A central theme of my recent writing has been: beware of false, misleading, exaggerated, and superficial, as well as illusory, mean-ingless, reductionist, and biased or ethnocentric comparisons and general-isations about legal phenomena or a combination of these.

There is a simple explanation, and part-justification, for our limited ability to generalise about law in the world as a whole. We lack concepts,

1 Source: William Twining, General Jurisprudence: Understanding Law from a Global Perspective, Cambridge University Press, Cambridge, 2009, pp. 5–6.

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hypotheses, data and other requisite tools because – with only a few ex-ceptions – for the last two centuries or so, our Western traditions of legal practice and academic law have focused almost exclusively on the domes-tic or municipal law of pardomes-ticular industrialised or industrialising sover-eign nation States. For example, until recently, almost all lawyers were qualified to practice in a single country, sometimes only a part of that country, such as England or California. I am told that the Florida Bar ex-aminations are still exclusively focused on Florida and Federal law, with-out a single element of foreign or transnational law, even though Miami is an extraordinarily cosmopolitan city and aspires to be not only “the capi-tal of Latin America”, but also a leading centre of transnational and re-gional commercial and financial activity. Similarly, nearly all “main-stream” Western legal theorists – Bentham, Weber, Kelsen, Hart, Raz, Rawls, Dworkin, including sceptics such as Legrand and Duncan Kenne-dy – have focused almost exclusively on municipal or State legal systems.

The major exceptions have been uneasy attempts to accommodate public international law narrowly conceived and some leading theorists of legal pluralism, such as Santi Romano, Ehrlich and Harold Berman.

The “think pieces” for the 2011 conference provided ample evi-dence of how rapidly things have changed in legal scholarship and theory over the last 15 years or so: amongst the salient themes are the erosion of sovereignty, human rights, multinational corporations, and regional as well as multi-layered governance, comparative and supranational constitu-tionalism, the fragmentation of international law, and the appearance of new actors on the world stage.

2.2. Thesis Two: Non-State Law

My second thesis is that if one adopts a global perspective, a picture of law cannot sensibly be confined to the Westphalian duo of municipal State law and classical international law concerned with relations between sovereign States. This is far too narrow. A picture of law in the world that leaves out religious law, customary law, transnational commercial law, new forms of regional and supranational ordering, and various forms of

“soft law” at different levels simply leaves out too much. We need usable conception(s) of non-State law that enable us to make some differentia-tions, appropriate to context, between the legal and the non-legal. The late Neil MacCormick’s conception of law as normative institutionalised or-der, Brian Tamanaha’s radical pruning of Hart’s concept of law, and my

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own modification of Karl Llewellyn’s law jobs theory in terms of ‘thin functionalism’, all claim to do this job. However, we should not expect any conception of law to do much work.

2.3. Thesis Three: Sub-Global Patterns of Law

Some of the most significant patterns relating to law are sub-global. These do not fit neatly into geometrical or geological metaphors: concentric cir-cles, vertical hierarchies, horizontals or diagonals. Our heritage of law is much messier than that. Many of our inherited patterns of law in the world are related to empires, diasporas, alliances, language spread, trading blocs, trade routes, and legal traditions. Think of the Islamic world, the British Empire (and its surprising survival, the Commonwealth), North Atlantic Treaty Organisation (NATO), Association of Southeast Asian Nations (ASEAN), Organisation of the Petroleum Exporting Countries (OPEC), and the civil law world. All of these are sub-global. Some are geograph-ically contiguous, some not. Their internal and external relations are com-plex. They coincide, overlap or disaggregate in many different ways. We talk of English as a global language or the Arab world or the Islamic world in much the same way as we talk about the Cricket World Cup or the Baseball World Series. This is just hype. None of these are genuinely worldwide and they are decentralised in many ways. These historical leg-acies will strongly influence the development of State law and other forms of law in the next 30 years.

2.4. Thesis Four: Legal Pluralism

Accepting a conception of non-State law leads to accepting legal plural-ism as a social fact, not only in far-away places, but in every country in Europe and the West. Legal and normative pluralism occurs at all levels of ordering, not just within particular countries – transnational, suprana-tional, nasuprana-tional, regional, networked, diasporic, et cetera. Legal pluralism raises an agenda of issues conceptually, empirically and normatively, in-cluding difficult policy questions about recognition, jurisdiction and inte-gration.

2.5. Thesis Five: Legal Pluralism and the Rule of Law

Socio-legal writers on legal pluralism launched a powerful attack on

“State centralism” – the tendency to assume that the sovereign (“nation”)

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State is the only legitimate source of legal authority and the most power-ful, most efficient, technically superior, and just form of ordering. Many of the think pieces and the Law of the Future documents explicitly focus on municipal law and the national lawmaker. Even scholars of legal plu-ralism find it difficult to break away from (often subtle) forms of State-centric thinking. There is, however, a danger in romanticising legal plural-ism: legal pluralism is an important social fact, but many non-State orders are oppressive, unjust, inefficient, corrupt, et cetera. Some people believe that the best, perhaps the only, hope for achieving and preserving demo-cratic values, the rule of law, good governance, human rights, and distrib-utive justice rests with strong liberal democratic States. What are the pro-spects for the rule of law in situations where the State is no longer the on-ly or even the main form of governance?

2.6. Thesis Six: Diffusion of Law

Adopting a global perspective highlights the pervasiveness and the com-plexity of diffusion of legal ideas – sometimes referred to as reception or transplantation. Throughout history, legal traditions and legal and norma-tive orders have interacted with and influenced each other – sometimes unidirectionally, sometimes reciprocally, or in more complex patterns.

Sometimes it has been assumed that the main agents of reception are ei-ther governments and officials or legal elites – for example, a colonial ruler imposing its municipal law and institutions on subject peoples or Turkey, Ethiopia or Japan “voluntarily” importing legal models and ideas.

However, it is now recognised that the processes of diffusion are more varied and more complex than such naïve models of reception suggest.

Religious legal traditions have interacted for centuries; a human rights case in Germany can affect human rights in the United Kingdom either via Strasbourg or the writings of jurists, or transnational human rights da-tabases; indigenous peoples struggling for recognition in their traditional homes in New Zealand, Canada and Australia are now in direct touch with each other, sometimes networking by e-mail, as are many kinds of social movements. Perhaps most significant is the recognition that gov-ernment officials are not the only, or even the most important, agents of legal change: migrants, merchants, and missionaries have carried their law with them; law travels with armies and aid workers; legal ideas are spread transnationally by legal education and scholarly writings; and, law is dif-fused as much by literature as by legislation.

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2.7. Thesis Seven: Surface Law

The pervasiveness and complexity of processes of diffusion highlight some other points. Bruno Latour’s striking phrase “no transportation without transformation” may be an overstatement, but we can never be sure that what has travelled has remained the same – that what was im-ported was identical to what was exim-ported. It may superficially look the same, but is that only a surface similarity? That is one reason why we have to be cautious of talk about convergence, harmonisation, and unifica-tion of laws. There are quesunifica-tions about when and why homogenisaunifica-tion of law is desirable; but in addition we have to be able to assess whether claims to convergence or unity only refer to surface phenomena. The issue is mainly about information. Formal legislative texts or agreements or ex-positions of doctrine tend to be very uninformative. Western traditions of legal scholarship have been largely text-and-doctrine oriented; they main-ly tell us about surface phenomena. Typicalmain-ly they tell us little or nothing about how or whether a given principle, rule or law is or will be interpret-ed, adaptinterpret-ed, applied and implementinterpret-ed, enforcinterpret-ed, usinterpret-ed, manipulatinterpret-ed, or ig-nored. In short, from information provided merely by legal texts and ex-positions of doctrine, we do not know to what extent they make any dif-ference in practice, let alone transform economic, social or other relations and behaviour. Surface law is not law that is merely on the surface; rather it is that aspect of law that is only visible on the surface, and with that in-formation we are unlikely to be able to tell how it interacts with its imme-diate context and how it operates, if at all, in practice.

2.8. Thesis Eight: Belief Pluralism

Closely related to sub-global legal patterns is the social fact of belief plu-ralism. There are strong strains of universalism in the Western traditions of ethics – as exemplified by natural law, Kantianism, utilitarianism, and some versions of human rights theory – which have to confront the social facts of differing belief systems, cosmologies, cultural values, ideologies, et cetera. This is not the place to enter into profound philosophical issues about universalism and relativism, and complex issues about the relation-ship of beliefs to identity. It is important, however, to be aware of our bi-ases. Continental European and Anglo-American traditions of academic law may be quite confident about the nature and problems of legal phe-nomena in their own geographical spheres, but when they venture out to

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other places, or the world as a whole, they are vulnerable to charges of pa-rochialism or ethnocentrism. One of the main challenges facing the hu-man race in a situation of increasing interdependence is how to construct institutions, processes and rules that promote co-existence and coopera-tion between peoples and groups with very different cosmologies and val-ues.

2.9. Thesis Nine: A Secular Age?

We must be wary of talk of “a secular age” – for example, the suggestion that human rights are now a sort of irreligious, even atheistic, substitute for liberation theology. “Secular”, of course, is sharply ambiguous: it can mean non-religious or even anti-religious; or it can mean independent of or transcending religion, for example, in relation to tolerance and freedom of religion. Demographers of religion (for example, Philip Jenkins) tell us that from a global point of view, we are experiencing a period of religious revival – illustrated by non-Christian immigrants in Europe, Christianity in Uganda, or the spread of the Yoruba religion in the Americas. It is mainly in some parts of the West that we have experienced religious de-cline, and it is quite parochial, even ethnocentric, to think that this reflects global patterns. On the other hand, the idea of the secular State as a basti-on of religious tolerance, holding the ring for people with different belief systems, is a crucial idea in a period of greater interdependence and mi-gration. Being clear about this is, for example, crucial for human rights theory. As Abdullahi an-Naim has eloquently argued, it is a mistake to try to promote ideas of human rights solely or even mainly as a non-religious doctrine. If Muslims are to be persuaded that the international human rights regime is for them, they have to find its justification and support in Islamic premises. Insofar as different belief systems, including religions, have doctrines that support tolerance, although in different ways, we may still hope for workable solutions to problems of co-existence and coopera-tion, but these solutions cannot be based solely or even mainly on non-religious ideas of secularism associated with our Enlightenment.

2.10. Thesis Ten: Ethnocentrism

Ethnocentrism is the projection of ideas derived from one’s own culture and background onto others – because these ideas are assumed to be uni-versal, or essentially the same as, or more advanced than, or superior to those of others. Ethnocentrism may often be based more on ignorance

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than arrogance. Our Western traditions of academic law and legal prac-tice, parochially focused on the municipal laws of our own societies, have exhibited very little interest in non-Western legal traditions and cultures.

The few legal scholars who have taken an interest in Hindu law, African law or Islamic law – at least before 9/11 – have been treated as marginal, esoteric, even eccentric. Also they have, of course, been open to accusa-tions of one form of ethnocentrism, viz. “orientalism”. Sometimes these charges are unfair. Collectively we – Western legal scholars – have been largely indifferent to, unaware of, and fundamentally ignorant about non-Western legal ideas and practices, and the concerns and interests underly-ing them or the languages in which they are expressed. We should not as-sume that we have nothing to learn from other traditions and cultures – Is-lamic ideas on commercial morality, Confucian ideas on harmony and probity of leaders, and Chthonic ideas on ecology. So are we qualified to prescribe global solutions?

3. Conclusion

Adopting a global perspective highlights a number of challenges to some widespread assumptions in our Western traditions of legal scholarship and legal practice. A global perspective can help us to recognise the diversity and complexity of systems of ordering human relations in the world and to realise that we are not uniquely at its centre. The Hague is not the cen-tre of the world and “we” – mainly a bunch of Western jurists – cannot on our own prescribe solutions for the world’s problems. Although we can and should think about how the complex processes of globalisation bear upon our own situations and ideas and what we can bring to the table to negotiate stable and acceptable responses to transnational, supranational, and genuinely global issues. A global perspective is not a view from no-where; rather it aspires to be the recognition of views from almost every-where.