[Editor’s Note: In this installment of I•CONnect’s Book Review Series, Naoyuki Okano reviews Jean-Bernard Auby’s “Globalisation, Law and the State” (Hart 2017).]
—Naoyuki Okano, Nagoya University, Graduate School of Law
With the deepening of globalization, especially after the 1980s, legal scholars have gradually become aware of the fundamental challenges that globalization poses on laws and legal studies. Still, as a review of globalization debates in different fields of social science by a legal scholar confirms,[1] laws and legal studies are generally lagging behind other fields of social sciences, such as economics or sociology, in analyzing mechanisms of globalization. Meanwhile, as Professor Gordon Anthony points out in his Foreword to the book, a clear understanding on the mechanism and nature of globalization is acutely needed especially for EU (and UK) public lawyers, with the aftermath of the Brexit vote still unfolding. It is against this background that Professor Jean-Bernard Auby’s illuminating book, Globalisation, Law and the State, originally published in French in 2010, is translated and published for English readers. The book makes a significant contribution by showing the fundamental challenges globalization poses for legal scholars, especially from the viewpoint of public law.
The book’s general purpose is to “discuss globalization’s legal dimensions” (p. xvii). For that purpose, Auby takes a viewpoint that law’s globalization is “an evolving phenomenon, the balances of which are nor readily identified and which […] tends to destabilize tenets, principles and hierarchies that form the basis of our law” (pp. xvii, xviii). This fundamental understanding of the challenge of legal globalization enables the author to comprehensively cover different aspects of law’s globalization. After the general introduction to globalization, the author engages with concrete legal fields ranging from financial markets law, Internet law, public contract law, trade law, environmental law, then to human rights, to present a clear and concrete picture of law’s globalization, and then presents his systemic analysis of law’s globalization and its impact on public law theories. The fundamental argument of the author is that legal scholars should do their best to chase after the changes that globalization induces, using all of law’s branches to understand what is happening, and this book is the author’s commitment to the enormous “task to overhauling existing concepts” in law in response to globalization (p. xix). The most significant contribution of the book is its systematic analysis of law’s globalization. From Chapter 3 to 7, the author sheds light on the phenomenon of law’s globalization from different angles, and it is still one of the most comprehensive treatments of the wide-ranging issues from public law’s angle.[2]
There are two points that call for attention and further examinations. First, the reader should be careful about the nature of the discussion of Chapter 4, “Power and Legitimacy in the Global Legal Sphere,” in contrast with other chapters systematically exploring law’s globalization (Chapters 3, 5 and 6). In this Chapter the author embarks on a discussion of values explicitly (pp. 97, 117-135). With the understanding that states’ power of regulation is declining in an era of globalization, the author explores the emergence of new powers and changing “the legal configuration of power” (pp. 97ff.). While surrounding chapters concentrate on technically describing the evolution of global legal practices, this part of the book appears to be committed to explore how to control and regulate new powers. Now, we should reflect on the author’s commitment to the value question in contrast with his basic approach; he mentions that while the effects of globalization could be either positive or negative, before such judgment we should explore certain facts (p. xviii). If the exploration of such facts is what this book is supposed to do, then his commitment to the issue of how to regulate new powers actually shows the fundamental difficulty to clearly demarcate the line between facts and values, especially when debating globalization.
Although one of the mandates of public law is to discuss how to legally regulate and control (state) power, the debate of values concerning how to regulate new powers should require further arguments on its basis and methodology, given that the basic assumption of state as a power-holder is itself questioned. For instance, how such a value discussion is different from paralleling debates in political philosophy? Is there any strength or difficulties in discussing them as a legal issue rather than a political/philosophical one? How can we compare and evaluate those approaches as democratization, constitutionalization and (global) rule of law, which proposed as an approach to control “new powers” by the author? The further examination of these issues would strengthen the book’s argument by squarely situating it within neighboring disciplines tackling a similar issue on power and legitimacy in an era of globalization.
The second point is that this book is confined within European (and American) theories and perspectives almost exclusively. Although it apparently is not the author’s project to consider such issues as decolonization, third-worlds’ resistance to globalization and legal pluralism, those issues are becoming more and more pressing with deepening economic inequality and confrontations to Western legal ideas from the Global South.[3] In the globalization debate, we should be aware that there are strong alternative ideas on laws, democracy, states and governments as typically suggested by the Global South. Turning back to the first point, the reviewer pointed out that the value question concerning the regulation of “new powers” can be further elaborated. This issue of how to discuss values becomes far more complex if we take into account the existence of alternative ideas on law from outside the West. Ideally, one should carefully avoid such consequence as an admittedly Western description of legal globalization becomes oppressive to others without intention. As the author calls for an attention to fundamental challenge of globalization that destabilizes our system of law, another important source of such destabilization coming from outside the West could also have found a place somewhere in the book. Such others are not always “outside” the West, but they could also be “within” the West.[4]
Notwithstanding, these issues calling for further explorations and examinations, Professor Auby’s book is a significant contribution to the theoretical understanding of the mechanism of globalization from a public law’s viewpoint. This succinct review does not exhaust illuminating arguments that the book makes to provoke thoughts for readers. It is a must read for anyone interested in understanding how (public) laws are facing with fundamental difficulty with the deepening of globalization.
Suggested Citation: Naoyuki Okano, Review of Jean-Bernard Auby’s “Globalisation, Law and the State”, Int’l J. Const. L. Blog, Mar. 7, 2018, at http://www.iconnectblog.com/2018/01/book-review-naoyuki-okano-on-jean-bernard-aubys-globalisation-law-and-the-state
[1] Robert Howse, “The End of the Globalization Debate: A Review Essay,” Harvard Law Review 121, no. 6 (2008): 1528–54.
[2] Although the book concludes with implications to public law, the range of the book well extends to each field of private law.
[3] Sociology of law is one prominent discipline actively discussing those issues. See e.g. Eve Darian-Smith, Laws and Societies in Global Contexts: Contemporary Approaches (CUP, 2013).
[4] Michaels, Ralf. “Does Brexit Spell the Death of Transnational Law?” German Law Journal 17 (2016): 51. (“It is worth remembering that Brexit is not an isolated event of anti-transnationalism. The most successful transnational movement today is, ironically, nationalism.”)
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