Book Review: Catarina Santos Botelho on Sabino Cassese’s “A World Government?”

[Editor’s Note: In this installment of I•CONnect’s Book Review Series, Catarina Santos Botelho reviews Sabino Cassese’s book on A World Government? (Global Law Press/Editorial Derecho Global, Sevilla, 2018).

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–Catarina Santos Botelho, Catholic University of Portugal

When opening Sabino Cassese’s book, one expects to find an open-minded and thought-provoking writing, with strong normative propositions and theoretical clarity. This fascinating new book does not disappoint. On the contrary, it challenges rooted preconceived ideas and legal formulas.

Throughout his book, Cassese emphasizes the fact that the world is no longer ruled by the Westphalian model of fully sovereign states. The decline of the nation-state and the international opening of national legal systems have encouraged the development of the “transnational law of liberties” (Mauro Cappelletti). The global space, however, lacks a global government or a formal hierarchy. Instead, power is shared between national and supranational rulers, and there are several global regulatory regimes that do not necessarily follow a common pattern (“ad-hoc-cracy”).[1]

The book is divided into four chapters: I – National Governments and Globalization; II – The Globalization of the Law; III – Global Regulation; IV – Judging and Globalization.

In Chapter One, Cassese explores the rise and growth of the state. Legal positivism developed a nationalistic approach, accompanied by the centralization of the state, although with different degrees of stateness and statehood. In the twentieth century, though, we witnessed the decline of the state, which started when its authority was challenged by a myriad of forces, such as associations (in particular, trade unions).

In the 1970s and 1980s, the line between the public sphere and the private arena became blurry. Internally, “the rollback of State regulation of the economy, liberalizations, privatizations, sale of State ownerships, cuts in public expenditure, [and] decentralizations” were major red flags.[2] Externally, the sovereignty of the state was challenged by transnational corporations and businesses exercising parallel authority.  

A third cycle, yet, revealed the state’s “self-restructuring”.[3] I fully agree with Cassese’s perspective, as any kind of requiem for the state would be an exaggeration. States are experiencing interesting processes of metamorphosis. Furthermore, “contrary to a widespread view that opposes globalization and national governments, States are a constitutive element of globalization”.[4]

However, I do not share Cassese’s assertion that human rights’ “universality is a myth”.[5] The existence of universal human rights leaves considerable room for national and regional particularities and other forms of diversity. The main risk of yielding to the rhetoric of “everything is relative” is to surrender to the absolutism of relativity. If everything is relative, states that perpetrate violations of human rights will have an intellectual justification for preserving traditions that grossly violate human dignity, using labels such as  “cultural relativism”, “internal affairs of the state”, or “national identity”.[6]

In Chapter Two, Cassese highlights that the globalization of law is “an ambiguous formulation”, since “it assumes a reality that does not and may never exist. A unitary cosmopolitan legal system is not on the horizon, nor is it perhaps among current ambitions”.[7] Consequently, by keeping some fields uncovered or by providing self-restraint techniques (such as subsidiarity and the margin of appreciation), “legal globalization allows for diversity of national laws, and leaves the right to be different”.[8]

Globalization has changed traditional constitutionalism. The proliferation of international courts, the strengthening of an international society and the growing number of transnational networks have encouraged the development of global constitutionalism. Cassese thus engages in a bold attempt to identify the inadequacies in the current interpretation of what global constitutionalism is. In this sense, he bravely argues that “global constitutionalism is not international law that is slowly transforming into constitutional law”.[9]

In fact, global constitutionalism derives from the fluid nature of common constitutional traditions and from the mutual interactions of global and national courts. More than “global constitutionalism”, we are experiencing “trans-constitutionalism”, which lies in the pendular movement of global constitutional institutions and national legal orders influencing one another.[10]

If democracy is umbilically connected to stateness and global polity is now polycentric, we face a tough problem: will the reconfiguration of the state mean a different approach to democracy? Can there be democracy at a global level? Will national democracy be replaced by a cosmopolitan form of democracy?[11]

Cassese’s sophisticated statement is that national democracy and global democracy “are intermingled” in a way that allows “room for the development of a universal concept of democracy”.[12] Democracy is not only consecrated in states’ constitutions, but is a principle of international law as well. Nonetheless, the concept of democracy, “as embedded in the State experience, cannot be transposed as such into the global polity”, which does not mirror national democracies (with periodic elections for national parliaments and universal suffrage).[13] Quite bluntly, “there exists no cosmopolitan democracy, no planetary constitution, no global parliament”.[14]

Cassese makes a call to refine the lens of global democracy’s development. Such development will take time, as did the democratization of governance within the state. Accordingly, we need to have realistic expectations as regards global democracy, especially when taking into consideration global institutions’ current stage of development.[15]  Global democracy “is fragile”, as it exists in a context of many demoi, and is not solely bound to one demos and a given territory.[16]

Chapter Three addresses global regulation and the emergence of global administrative law (GAL). GAL has challenged administrative law’s two hundred years of history and is encouraging national administrative systems towards convergence. In the words of Gunther Teubner, GAL is “the latest candidate for the constitutionalization of world society”.[17]

The book masterfully navigates through the normative and societal concept, the fragilities and the conquests of GAL. The use of the adjective “global” rather than “international” is meaningful. Hence, GAL transcends international law, as it includes national civil societies among its actors. GAL’s peculiarity lies therefore in the triad “civil societies”, “national institutions” and “institutions beyond the state” (supranational, international and transnational institutions).[18] In sum, GAL “is not only global, not only administrative, not only law”.[19]

National administrative laws attribute a hierarchically superior power to the central state, in which the administration enjoys a monopoly of executive power and sets limits upon individuals’ rights. On the contrary, GAL grounds itself on fragmented authorities (there is no hierarchically superior regulatory regime), sets limits upon states, widens the sphere of private liberty and is characterized by weak executive power.[20]

Differences between GAL and state-level administrative law are significant, since GAL has a high degree of self-regulation and blurs the line between public and private. The absence of a constitutional foundation to GAL raises concerns of democratic deficit and accountability problems. Nevertheless, global legitimacy and accountability are horizontal and not vertical. Therefore, one should not force the same paradigms of the state into GAL.[21]

Global regulatory regimes cover a wide range of fields, such as control of fishing, food safety, internet governance, pharmaceutical regulation, intellectual property protection, antitrust regulation, trade standards, refugee protection, and war and arms control, just to name a few.

There are more global regulatory bodies (international or intergovernmental organizations) than there are states. If the centrality of the state has thus “become an optical illusion”, we should not quickly jump to the conclusion that the global legal order has “supplanted” the state. In fact, “it is also through global regulatory systems that domestic public powers are able to make their voices heard”.[22] Additionally, if global regulators “act as standard-setters and gatekeepers”, the final word of enforcement relies upon national authorities.[23] The global and the domestic are not two separate levels, as numerous intersecting ties bring them together. Still, the role of global regulatory regimes has “not yet reached maturity”, as it is at an early stage of development.[24]

Chapter Four addresses the rise of judicial comparison. This upsurge is not a surprise. Supranational and global regulatory regimes open national legal systems towards each other, thus facilitating the use of foreign domestic law. Apart from quasi-judicial bodies, there are over one hundred supranational and international courts. Supranational courts contribute to the transformation of the global legal space into a global legal order, as they develop “general principles common to different specialized regulatory systems, as well as linkages between one regulatory regime and another”.[25] Such a judicial world government shares both advantages and disadvantages.

Even if, in most states, foreign law is not binding, it does play a relevant role as a method of interpretation.[26] Judicial comparison does not question state sovereignty but enriches the approach to similar problems by seeking advice and experience from other national legal orders.

Very sharply, Cassese stresses the relevance of the sociological aspect of judicial comparison. Thus, comparison should not focus uniquely on foreign legislation, jurisprudence and scholarship, but also on the culture (“the legal environment”) in which it is applied.[27]

At the end of the book, one is left with the impression that global constitutionalism and global administrative law are thriving. Cassese brilliantly analyses searches for new paradigms of a global legal arena which rely neither on methodological nationalism (strict state sovereignty), nor on the search for a demos.

Administrative law is in the process of transitioning from two hundred years of an exclusively parochial approach to the brave new world of globalization. In the years ahead, such transition will require both new research directions and constant commitment in order not to fail. As Virgil warned Dante, when entering the bolgia of the thieves, he needed to cast off sloth because it prevents one from gaining fame, “without which he who consumes his life leaves such trace of himself on earth as smoke on air or foam on water” (sanza la qual chi sua vita consuma, cotal vestigio in terra di sé lascia, qual fummo in aere e in acqua la schiuma).[28]

This enriching and forward-looking book will encourage more scholars to contribute to new lines of inquiry that augur well for the future of global administrative law and global constitutionalism.

Suggested Citation: Catarina Santos Botelho, Review of Sabino Cassese’s “A World Government?”, Int’l J. Const. L. Blog, July 30, 2019, at:
http://www.iconnectblog.com/2019/07/book-review:-catarina-santos-botelho-on-sabino-cassese’s-“a-world-government?”

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[1] Sabino Cassese, A World Government?, Global Law Press/Editorial Derecho Global, Sevilla, 2018, p. 195.

[2] Ibid, p. 32.

[3] Ibid, p. 36

[4] Ibid, p. 40.

[5] Ibid, p. 50.

[6] To me, the thesis of human rights relativism starts from a social empathic reasoning: if culture is not universal, then rights cannot be either. Relativists argue that human rights universalism imposes unilateralism in the form of a unique civilizational model – liberal and Western. But it is quite the opposite. Cultural diversity is enriching the realization of universal human rights. It is due to human rights absolutism (and not to relativism) that young women have the right to not suffer the cultural ‘tradition’ of genital mutilation; or that women have the right not to be discriminated, despite extremist religious readings in this regard; or that homosexuals can express their sexuality, even if it offends a particular community conception of morality. Human life is not disposable, so it cannot be functionalized to a government, a tradition or a religion in the name of ​​relativism. See Catarina Santos Botelho, “Direitos universais? Quando o relativismo é uma forma de absolutismo” (translation: Universal rights? When relativism is a form of absolutism), Observador, 29.03.2017,  available at: https://observador.pt/opiniao/direitos-universais-quando-o-relativismo-e-uma-forma-de-absolutismo/

[7] Sabino Cassese, A World Government?, cit., p. 67.

[8] Ibid, p. 62.

[9] Ibid, p. 85.

[10] Ibid, p. 86.

[11] Ibid, pp. 35 and 88.

[12] Ibid, p. 88.

[13] Ibid, p. 94.

[14] Ibid, p. 148.

[15] Ibid, p. 98.

[16] Ibid, pp. 105-106.

[17] Gunther Teubner, Constitutional Fragments – Societal Constitutionalism and Globalization, Oxford University Press, 2012, p. 50.

[18] Sabino Cassese, supra note 1, p. 193, and p. 206.

[19] Ibid, p. 206.

[20] Ibid, pp. 160 and 176-177.

[21] Ibid, p. 208.

[22] Ibid, pp. 119-120.

[23] Ibid, p. 200.

[24] Ibid, p. 198.

[25] Ibid, p. 231.

[26] See also Catarina Santos Botelho, “Is there a middle ground between constitutional patriotism and constitutional cosmopolitanism? The Portuguese Constitutional Court and the use of foreign (case) law” in Giuseppe Franco Ferrari (Ed.), Judicial Cosmopolitanism – The Use of Foreign Law in Contemporary Constitutional Systems, Leiden/Boston: Brill/Nijhoff, 2019, forthcoming, pp. 424-448.

[27] Sabino Cassese, supra note 1, p. 219.

[28] Inf. 24.29-51.