International Law

Whether you agree with her or not, Saskia Sassen has always written interesting things on globalization/transnationalism - often by thinking about it from unusual angles and geographies.  Her recent article on “third spaces” is no exception and should be of particular interest to international lawyers.  Earlier works, such as on the global city, should also be of interest since they crack open the divide between “national” and “international” and show how regimes and networks overlap, interact, concentrate power in new ways and have different applications — some of which we usually consider “legal” and some of which we do not.

With respect to formal law and regulation, it is worth thinking about her arguments that “[a] fresh type of segmentation is occurring inside the state apparatus, characterised by a growing and increasingly privatised executive branch of government aligned with specific global actors (notwithstanding nationalist speeches), alongside a hollowing out of the legislature whose effectiveness is at risk of becoming confined to fewer - and more domestic - matters.”  This decline of legislative power (and the privatization of government) is a big issue for domestic law in the US, with extensive “executive power” debates (small examples include this recent NYTimes article here and a Boston Globe article on the presidential candidates here - though many have argued that this increase was a trend under Bill Clinton as well), all too often without considering whether or not this is happening with respect to more “international” issues, whether increased power and privatization are linked, whether this is happening elsewhere in the world and if there is something larger to be considered.  And this should all be considered beyond the hot-button issues of the war on terror and include executive power in economic matters as well.

This also fits in nicely with notions of transnational regimes for economic policy-making (run by “experts”… “elites” might also be appropriate… perhaps these experts are more at ease in executive branches than in legislative… or are more able to get what they want?) per David Kennedy’s work.  Alas, the wonderful former HLS/Fletcher prof and student is now at Brown as VP for international affairs and a prof of international relations.  Congratulations to him, but surely a loss for HLS. 

A very interesting post by Dan Harris at China Law Blog entitled “Who Needs International/Foreign Law? Not Us, We’re Americans” has set off a worthwhile discussion on the use (or non-use) of international/foreign law in the US in the private context.  The Transnational Law Blog also has an interesting follow-up entitled “Transnational Commercial Disputes in the USA Ain’t Easy“.  Rather than steal their thunder, I simply recommend reading the posts and responses.

There is an interesting article by Marc Hertogh, available on SSRN, entitled “What is Non-State Law?  Mapping the Other Hemisphere of the Legal World”.  I suspect that some authors may dismiss the idea of non-state law out of hand (or at least that it is “Law”), but nevertheless the article is a valiant effort to sort through some of the complex and occasionally contradictory scholarship in order to help on the path to at least a workable concept. 

The sections on “colonialism” and “globalization” concepts of non-state law are probably of most interest to international lawyers, but Hertogh notes that the non-state law concept entered, at least for a time, the area of “legal pluralism at home”, using such examples as Ellickson’s work on societal norms in Shasta Country (still a favorite among some law and society types or law and econ scholars, etc.).  This is an interesting link to make as perhaps lawyers looking at international legal pluralism, either to support it or to critique it. also need to take more into account legal pluralism at other levels (local, national, etc.), at least to find arguments and ideas to work with (including whether or not more codified law is necessary for “international law” to be more effective).  This exercise might remain useful even if the newer “globalization” notion of non-state law is, as Hertogh argues, significantly different from the “colonialism” and “legal pluralism at home” notions of non-state law.