Theoretical And Practical Investigation Of The Globalization Of Law

We are entering a global age. The rapid development of modern transportation and communications technology makes it possible for people to overcome to a certain degree the restrictions of natural and geographical factors. With this as a basis, the gradual formation of global trade system, global capital and money market enriches people's perception and experience of globalization. With the development of theories of globalization, particularly of economic globalization, theoretical exploration concerning political globalization, cultural globalization etc. also accelerates. Against such a backdrop, legal scholars have every responsibility and duty to treat globalization and relevant theories seriously and face up to the many practical and theoretical problems in this discipline. The delimitation of such problems is the precondition for further development of legal science as a discipline on the one hand, and is helpful for the exchange and conversation between legal science and other disciplines on the other. What's more important, such problems are directly relevant to China's construction of the rule of law and China's ability to participate and employ the process of globalization. Therefore, the significance of the theoretical and practical investigation of the globalization of law should not be underestimated.As a concept, globalization of law has not been accepted by all scholars, while on the other hand those who accept it do not see it in the same light. Generally speaking, scholars tend to view globalization of law from the perspective of integration and homogenization of laws. Discussions of globalization of law are mainly concentrated on aspects like global law, limited globalization of law, globalization of law concerning global problems, etc. It is intended in this paper to view globalization of law from the perspective of global rule of law, with the view of exploring the multiple understandings of the globalization of law, the theoretical challenges brought by the globalization of law, the actual practices of the globalization of law and some possible ways via which the globalization of law may be duly furthered.Foreword and epilogue excluded, this paper consists of five chapters.Chapter one dwells on the survey of globalization. The investigation of the globalization of law should be firmly grounded on the exploration of the actual practice of globalization itself and the perception of globalization theories. From the perspective of the actual practice of globalization, this chapter dwells on five important respects: global market, global trade and TNCs, global tides of immigrants, information technology and global network society, English as a global language and global environmental problems. Whatever diversified position theorists may take on the theoretical aspects of globalization, they can generally reach agreement on the above-mentioned points. To say the least, although scholars may also disagree concerning the degrees of the above phenomena and their impact, the actual existence of these phenomena and their impact are hard to mistake. On the other hand, any arguments denying or accepting globalization without taking the above-mentioned aspects into consideration may seem somewhat partial and ill-informed. From the viewpoints of globalization theories, scholars may be on quite different grounds concerning the concept of globalization, its periodization, the relationship between globalization and regionalization, homogeneity, heterogeneity and hybridization, etc. It is held in this chapter that the process of globalization is rather complicated and the different definitions and perceptions concerning the concept and periodization of globalization are enough proof of this fact; on the other hand, those different definitions and periodizations are generally not a question of right or wrong, but rather a question of different theoretical focuses and interests. Regionalization is closely related to globalization but still quite different from it. It may further the development of globalization and it may hinder it as well. Scholars'arguments on homogeneity, heterogeneity and hybridization also reminds us of the fact that we cannot simply equate globalization with homogenization or heterogenization.Chapter two focuses on the elucidation of the globalization of law. Scholars'understandings of the globalization of law are as much diversified as those of globalization. Efforts have been made in this chapter to summarize some of these understandings and to perform corresponding analysis. It is held in this chapter that the following conceptions of the globalization of law are important: global law without a state, limited globalization of law, the globalization of laws concerning global problems, global rule of law, etc. Among all these definitions and conceptions of the globalization of law, the perspective of the global rule of law is deemed to play a leading role. This assertion is not to deny other trends like the integration and homogenization of laws, it is rather to use the global rule of law as a headrope of the fishing net of the globalization of law. When we pull this headrope, all the other meshes of trends will be open. This helps to possess a relatively comprehensive understanding of the globalization of law. The essence and core of the globalization of law lies in the global rule of law. The global rule of law is not employed to deny state rule of law and its conceptions, spirits and significance, it is rather an attempt to broaden the theory of the traditional rule of law against the backdrop of globalization to cover all the global actors. In fact, many ideas and conceptions of the traditional rule of law, like the universality of law, the supremacy of law, the equality of legal subjects, the realizability of law, the independence of judicature, etc, are far from being outmoded and their importance is further enhanced against the background of globalization. In addition, the combination between sovereign states and the rule of law is completed in particular time and space and this"accidental"combination does not imply that it will never change under new social and historical circumstances. In reality, with the surging up of new global problems, the gradual breaking up of state boundaries and the somewhat weakening of sovereignty, the historical combination of sovereign states and the rule of law is being superseded.Chapter three concentrates on the theoretical difficulties of the globalization of law. The concept of the globalization of law causes many theoretical difficulties, among which the state sovereignty theory and the theory of plurality of laws are particularly relevant. It is proposed in this chapter that the assertion of the strengthening or weakening of sovereign power should be carefully analyzed. In fact, doctrines of the strengthening or weakening of sovereignty cannot self-prove their legitimacy automatically, while on the other hand, the doctrine of the weakening of sovereignty may bear the mark of"western orientation". Strengthening or weakening of the sovereign power, their theoretical perspective and logical starting point is state sovereignty, which in a certain sense hinders our comprehensive perception of state sovereignty against the background of globalization. The concept of global rule of law may help on this respect and it contributes to the perception of sovereignty theory on a global plane. In terms of the plurality of law, the traditional unitary or pluralistic perception of law, or the state-centered or non-state-centered perspective are in nature state-oriented. When state is increasingly embedded into the global structure, the validity of this perspective is questionable while on the other hand a global perspective may help grasp the pluralistic practice and theory of laws in a global range. The globalization of law also challenges the traditional research approaches and substantive legal theories. In terms of research approaches, the natural law approach, the positivist approach as well as the law and society approach are all faced with certain challenge; in addition, the globalization of law also brings doubt and challenge to state-centered traditional conception of law in an ontological as well as an axiological sense.Chapter four is about the actual practice of the globalization of law. Compared with theory, practice is always alive and green. When researchers are engaged in the arguments of the globalization of law, the practice of it is quietly unfolding. Global human rights laws, legal services, legal cooperation, legal conflict and legal integration have all witnessed such a process of globalization. Since the first utterance of the concept of human rights by bourgeois revolutions, states, GOs, regional organizations and many NGOs have all participated in the recognition and development of human rights and in a global age such participation will be further enhanced. The universality of human rights, the discussions of the relationship between human rights and sovereignty and some massive violations of human rights by certain states all help to manifest the fact that legal practice concerning the protection of human rights is being gradually globalized. On this respect state may remain to be the most important actor, but is surely cannot be the sole actor. In WTO GATS, the import and export of legal services find its legal ground and the special characteristics of legal services different from other services determine the fact that its import and export will surely help to develop and realize the global rule of law. In addition, faced with global problems like global terrorism, global corruption, transnational organized crimes, etc, no state can deal with them single-handedly and the legal cooperation of states on these respects will further their communication and exchange of relevant laws and regulations, which in the final analysis furthers the development of the global rule of law. It is more than obvious that in such global exchanges and communication conflict is unavoidable, and legal conflict, cooperation and integration may be the only way towards the global rule of law.Chapter five concerns itself with the possible means towards the realization of the globalization of law. Two means that may help realize the globalization of law are raised in this chapter, namely legal transplant and legal education, from the perspectives of institution as well as conception. In the process of discussion some concrete advices are proposed and it is hoped that such advices can be of help in China's confrontation with the globalization of law. Against the backdrop of globalization, legal transplant takes on many new features: besides horizontal transplants between states, there are now also some top down vertical transplants; besides the transplants of state laws, there are also transplants of non-state and informal laws. With the diversification of legal transplants, we should pay more attention to the outside pressures and global structural constraints in our process of legal transplants, to the transplants of informal laws and to the elite monopoly in transplants. We should also endeavor to export our laws and contribute our part in the globalization of law. In terms of legal education, we should pay more attention to the establishment of international and global consciousness among students, to the cultivation of their abilities to participate in global affairs, and to the needs of the general trends of global legal education and the demands of the global legal market.