Globalization’s Elusive Search for Justice: Categories, Maps, Interventions

So my name’s Frank Garcia. And I’m on the faculty
here and I teach international economic law. And I’m very interested
in the subject of globalization and law. So I’m particularly
pleased to be introducing my friend and
colleague, Dr. Peer Zumbansen, today. And he’s speaking on
globalization’s elusive search for justice, categories,
maps, interventions. So these are to say the
least, uncertain times. When every day’s headlines seem
to bring more distressing news of further assaults on the core
values of Western liberalism at home and abroad, it can
seem naive, quixotic, even irrelevant to speak
of transnational law, global justice,
or anything global at all except in LAJ terms. Nothing could be
further from the truth. It is precisely when the surface
chop on the ocean of the body politic is roughest
that it becomes important to sink down
far enough below the waves to get a sense of
the deeper currents and the constantly renewing
life giving potential of the open sea. And nowhere is
this more important than within the constellation
of questions, challenges and opportunities that
our topic raises today. Peer Zumbansen is
precisely the man to help us towards
this long review. A longtime student
of law with a fluency in both the language of
concrete, corporate and commercial practices and
the discourse of the highest levels of legal philosophical
and social theory, Peer is one of our foremost
theorists of transnational law and a leading innovator
of its pedagogy. Born in Berlin,
Professor Zumbansen studied philosophy and
law in Germany and France before receiving an LL.M from
Harvard Law School, followed by a doctorate and his
post-doctorate habilitation from Frankfurt’s
Goethe University, where his doctoral thesis won
the Walter Kolb Memorial Prize for Best Doctorate in Law. From 2004 to 2014, he
taught at Osgoode Hall at York University
in Toronto, where he held a prestigious Canada
Research Chair for a decade, first in the comparative
and transnational law of corporate governance,
and since 2009, in transnational economic
governance and legal theory. While there, he received
two teaching awards and held visiting professorships
in Idaho, Germany, Spain, Switzerland, Ireland,
Colombia, Australia, Portugal, and Connecticut. In the summer of 2013, Peer
was the inaugural Chair in Global Law at Tilburg Law
School in the Netherlands, and in the fall of 2013,
a Senior Research Scholar at Michigan Law School. He joined the faculty of
law at King’s College London in July of 2014, as
the inaugural professor of transnational
law and founding director of their
Transnational Law Institute, where he continues to carry
out innovative scholarship, pedagogy and
academic leadership. His recent books include,
Reshaping Markets, Rough Consensus and Running Code: A
Theory of Transnational Private Law, and Beyond Territoriality:
Transnational Legal Authority in an Age of Globalization,
all canonical works in the transnational
law that are true. Throughout, what characterizes
his work most to me is a quality which
I can only call seriousness of moral purpose. By this I mean that he
expects a great deal from law in terms of its capacity to
promote human flourishing, even as he never shies away
from engaging with the most profound challenges to laws
coherence, effectiveness and normatively
that post-modernism and globalization can generate. I think he is exactly the right
person to hear from today. And I’m very grateful
that he was able to come and for the generous
support of the Clow Center and its director, Vlad Purdue,
which has made this possible. So here is Peer Zumbansen. [APPLAUSE] Well, thank you very much. When I have the pleasure
of introducing speakers I always tend to give an
elaborate presentation of why I appreciate their work
so much, but I always find it particularly
uncomfortable if that happens the other way
around, because all of this is, of course,
always exaggerated. So thank you so much
for the invitation. It’s a really great pleasure. And that’s also what speakers
always say, but, in fact, I really mean it, it’s
a great pleasure, because for whatever
reasons I really enjoy having a dialogue,
which I hope this will become. Which students that know
me a little better say, well, but then he
goes on too long. But anyway, so I try
not to go on too long, but I also came here with
something in my suitcase. So I brought exaggerated
number of slides with me, which I’m happy
to leave to you, of course. I believe that as
anybody who has ever worked as an editor
on a law review that the footnotes
really matter a lot. And I put a lot of
emphasis in footnotes, which I think reflect
a little on what we try to have on
our radar and what we think the questions are that
are raised by the things that go on around us. And so very seldom– I think it is very
rare that we find a text that is truly heroic. There are, of course,
articles and books that have been written that
we like more than others. So “Nomos and Narrative
by Robert Cover.” We like that text. It’s canonical. We also like the references, but
the text itself is canonical. But often enough
it’s really the way that somebody brings
together material and says, we have to engage
with this material and in the body of the
text I try to do this, but I’m just beginning. And that’s how I feel
this current work is. So it’s to put a lot
of things on the table and then see whether we
can make sense of it. So the title this is
ode to several years now of me doing work
in legal theory, in an area that now has become
called transnational law. I mean, the term, of
course, is much older, but in the last 10,
15 years most scholars have referred to this either
as a new area of research of interdisciplinary
work between lawyers and legal geographers,
anthropologists, sociologists, or even as a legal
field as such. But I think we all sort
of agree that it’s not a proper legal field. In fact, if you
say that you teach transnational law, then the
associate dean of all people will, of course, say,
no, but what do you mean? I mean, what do you teach? Which law do you teach? What is that transnational law? So that’s a challenge and that
will remain so for a while. So I will suggest that
transnational law, whenever I now will refer to it
as more of an approach to reflect on law as such. And it’s all about
contextualizing law. And that’s what I
will speak about. So what are the
conditions under which we meet the law today,
under which we look out for different forms of
law, and perhaps, also try to find new ways of speaking
about law towards creating maybe more reliable
forms of law? So the context in which one
would speak about justice, and that’s the term that
I very, very rarely use, but I feel maybe we should
start doing that again, but without any
hyperbolic intention that context is that
of globalization. And so globalization
and the law that is the formula that has been
before us for a long time. And, of course, many of,
especially the students, won’t remember that 20 years ago
when faculty PhD students just with their first positions,
when they said about themselves that their globalization
scholars, that actually meant something to them and
to the epistemic community. It meant very little and rather
confusing things to others. But it was unclear
what their relationship is between studying
globalization and being a lawyer, a legal
scholar, a legal practitioner. So the classical account was
one done from a public law perspective, which is
globalization is a phenomenon, or is a set of phenomena
associated with developments. Huge large scale transformations
in economic terms, in cultural terms,
political terms, had to do with changing
shift of sovereignty, different forms of cultural
influences, migration of ideas, migration of people,
and trying to make sense of that in a wider,
largely political theory. You know, connotative context. Their relationship to
law was often stipulated as one, that globalization,
this monster, this unruly set of influences,
how does it relate to law? So that two unknowns– in that
formula we’re always two– globalization and the end. But in fact, we came to
discover that so much is uncertain about the
law itself that now, for the last few years,
we’ve been much more adamant to investigate
what we refer to when we speak about the law itself. So if we refer to
law, then it’s not just that we say we
are a top law school, or we are contract
law school, or we do company, corporate
law, but we try to– and we should, actually–
speak more often about what is the purpose of law. Why do we do law? And what do we rely
on the law for? What’s the purpose
that we try to achieve? So law, of course, we know
it regulates, it governs, and it brings order. It also is to provide certainty,
reliability, and security. It is supposed to offer safety
and hope and, hopefully, a future. But it’s also an
instrument that we can use and we can use it for
different purposes. And as we’ve now seen yet again,
we see that all across history, of course– in different
times and places– often an armor and a
shield to protect us. And to protect whether
that societal practices, a particular way of being, the
law is there to protect that– and to create a space in
which certain activities can be pursued. It’s also, then, a
house to convene in. If you have a legal
process that allows for the creation of a
dialogue, that is protected. And the law doesn’t say what
the outcome of that is– which already shows us that the
law isn’t very explicit on its normative content– but the law creates
a formal structure that we, then, have
to fill with content. So it’s a framework
to operate in and it’s a place that
we could call our own. Everyone can do that. And it’s a refuge to go to. And the importance of that
is seen, especially when we see that it’s in danger. Now how does justice
relate to all of this? So there are many
ways to draw on as a lawyer, when we
want to go to justice. One of the mainstream ones– which is important
because, in so many ways, it has framed the way
that, in the West, we have referred to major
moments of loss crisis and major moments of renewal. So Nuremberg is not just a
name of a town in Bavaria where some of the worst things
happened in the Third Reich, but it’s also the name
of a town in Bavaria where the process happened
against war criminals with, for many, very
unsatisfying results– but it’s symbolic. So it’s not just a
historical event, but it also has a lot
of symbolical impact– which is helpful but
also not so helpful– because it shapes and
influences but it also limits our imagination. So it was very obvious that
Nuremberg took place in order for the world to see and to
learn about the atrocities if the Third Reich, and to
be confronted with them. And also to see what a legal
process could do in response and where the limits would be. It was also meant,
of course, to provide for a process in which to
bring to justice those that had committed terrible crimes. But it also was meant to mark a
moment in time that should now set for us a new beginning,
so a never again. So Nuremberg serves
as a reminder. Now similar to other
pivotal moments in history, you look back at them and
then you look at the present, and you ask yourself,
where are we now? And so today, in fact, very
few people speak about justice. And why is that? In some sense, justice belongs
in the rhetorical universe that is committed to making
large normative claims. It’s basically optimistic. It appeals to
universal acceptance. You don’t speak
about your justice when you do something very
individual in your small world. You actually appeal to
acceptance and buy-in from many others. Instead we are supposed to be
much more realistic, and maybe even cynical, to the degree
that we should become more aware of how complex
the conditions, in fact, are and law operates. And that then, you
know, includes a lot of the sociological
analysis that we have nilly-willy, more
or less deliberately, as lawyers, have taken on board. Sociologists have,
for a long time, been arguing that society is,
in fact, much more complexly structured than even
traditional political science descriptions, or
above all distinctions in law between
public and private, the state and society
would want us to believe. So if society is
functionally differentiated, if society is really only
an emblem of very different interactions that all unfolded
following their own rules, it’s very difficult to
speak about justice. How would justice be
a term or a label that could apply to all of those? Now if we understand that the
world is very complex but we strive for justice, for results
that actually you might make the world better and we’re
supposed to actually, not really believe in
this but try nevertheless, where are we supposed to
get the energy for that? So that leads to the
question of agency. Who is in charge of
trying to achieve justice? And what are the different
models of frameworks that we have available? So there are many, of course. So allow me and forgive
me to be relatively crude because each one of these
for now is exaggerated, but I think they
represent at least some of the important
frameworks and lenses. So one is that it’s all
about self-regulation. It’s all about what can
we do in our own form– in our own form of doing, of
changing, of having an impact. And there is very
little hope that there is any overarching unity,
such as what we would call the state, to take care of it. But it’s self-regulation. And the problem about
this, of course, and that’s very adequately put
forward by the philosopher that I mentioned here, Jurgen
Habermas, is that in the 1980s, a huge crisis occurs in
Western legal thinking which is that, for many
different reasons, the state government
begins to change its role. So if one maps the development
from a very formalist rule of law conceptions throughout
interventionist state, before the First World War
then in the interim time, and then during the
Second World War to an emerging social state
and welfare state in the 50s, and then flourishing in
the 60s and early 70s. The late 70s and
early 80s marked by a fundamental transformation. I quote Habermas because he
analyzed so compellingly that, yes, the conservative right
is correct in saying that the state cannot finance
these luxurious activities of a welfare state anymore,
and it’s actually time to face economic realities, and
globalization is one of those. And to accept that the state
cannot look out for all of us and that we’ll see, also
documented of course, in political change everywhere. What’s very crucial about
Habermas’s observation that the state is not just
financially exhausted but also normatively, is that
Habermas, as a sociologist and philosopher, puts the
finger on the wound of the state not knowing enough. And that is important because
that’s another perception that lawyers have been
very familiar with, which is to reflect on
the apparatus that tries to bring about change. And we as lawyers,
we solve problems. So we react to moments of
crisis, to emergencies. But Habermas says,
and of course, along with many
sociologists say, what are the categories
that inform the work that a modern state does? What does the
state actually know about those that
are on the receiving end of laws, of regulations,
of state intervention? And Habermas says
we are at a time now where society is so
complex that to assume that the state, a state,
a public regulator, sits atop of a society that
then sometimes receives benevolent gifts from the
state, that’s utterly naive. So what needs to be
replaced in fact, is the idea of a
state intervening with good intentions in
society to a much, more crucial assessment of the complex
processes of interaction, of information flows that have
to be facilitated, supported, and solicitated by the
state, with the help of the state from different
actors in society. That often enough, first,
have to be equipped with voice to express their views. So the idea that
the state does give or, as the conservatives
would then choose to declare, stops giving– that is utterly naive
and is much more complex. Hayek is a crucial
intervention at this time. And we see that he comes back. His impact is coming
back again and again. Hayek says that it’s really
all about market regulation and market self-regulation. The state plays a
very particular role. If you ever read the
Constitution of Liberty or some of the very
pivotal great essays, not just The Road to Serfdom,
but some of the essays where he describes what
the role is of a state to coordinate
market interactions, you will see that
the state provides immediately formalist
framework in which free market exchange is to occur. That model is so
pervasive still that it keeps coming back all the time. The third attack
on the state being the harbinger of redistributive
politics of a law that tries to achieve just
outcomes is law and economics. But law and economics
is, we could say, and we should
actually say today is the most successful
intervention in law and society that has occurred because
law and economics has been much more successful by
using the insides of Habermas and others. Of course, you could
probably never prove that any law and economics
scholar has read Habermas. But Habermas’s and
others emphasis on complex regulatory
processes that work through an intentional
public and private. Law and economic
scholars, very early on, realized that it’s
crucial for us to understand how processes
unfold on the ground. And then to realize that
any state intervention is likely to get their
results wrong. Lastly then, is the
sociological analysis driven to extremes
provided by Niklas Luhmann to say that society really
is this hyper-differentiated structure that I
referred to earlier. So it will become much more
concrete in a few minutes. But I want to just confront
you with this slide. So these changes that
you could map when you say there was a welfare state. Then there’s a financial
and conceptual crisis of the state in the west. And then eventually we have
the emergence of neoliberalism and we have the shift to market. And we have the
Washington Consensus. These things don’t just
automatically happen. But they are constantly
being contested and engaged with theoretically. And so these theories
are all around us. None of them is black magic. They’re not secret knowledge. They are not knowledge
that’s so hyper-specialized that only philosophers
are very well-educated. Theorists can deal with
them, but these are basically the consequences of asking
a few questions– of what are the interests that the
state does not know yet how to identify to
adequately address to support and to facilitate. There’s a contestation
of theories and these theories are– and that’s why I
mentioned this, actually a real existing political
and economic transformative background. These theories are
not pie in the sky. These theories engage directly
with these transformations that take place and as
such highly relevant. Question for us
is what relevance do they have in our
theoretical world especially if we are constantly,
since the 1980s, pushed to either or takings. So we in fact see
that public discourse, and we see that dramatically
these days of course is mocked by being for
or against, by being right or wrong. So this is just an early
reminder of if we do not say and if we are not able to
show the practical relevance of this immensely rich
theoretical work that’s been done in the last few decades– if we are not able to do
this, then nobody else will. Because you’ve never
seen a deliberation in a moment of crisis where
somebody said, stop everyone. Let’s talk about the
theoretical foundations that we could draw on. If you don’t bring
it on the table, it will not be on the table. And if you see the
progression of these theories, then you can see how
scholars across time have tried to give form
to very complex issues. And let me just very quickly
tell you some of them might be less familiar. So the two ways of
critical theorizing if you trace the development
Marxist feminist race and then LGBTQ, these things are fragile. These developments–
they constitute proposals to highlight aspects
that do not get considered as legally relevant. So the purpose and
the impact of these of theorizing these
developments is to show that certain facts
are legally relevant. And you only capture them
through such a framework. Second one is more in the
public into national law arena and has to do with
the growing importance of post-colonial theory
for our teaching study and practice of public
international law, which for some even in this
room, is their daily bread. But for the majority
of students, even if they study public
international Law– some of the best universities in the
world, they will get a degree and they have never heard
of this having taken place. They will graduate
and they don’t know that for 20
years now, work has been done in about the
third world approaches to international law. The attempt to show what
other colonial heritage is and roots of formations that
we find in present day times. TWAIL, transitional justice
and law and development, and what are the
relationships between those. Law and economics that
turn to legal cultures. Is that relevant today? Absolutely in a world
that is so pluralist. Regulatory theories. There’s an important
work that’s been done in the last few decades
on the relevance of taking on-board hyper-specialized
rule making. Expert-made norms. Is that law? Is it not law? What other categories
that we should apply. Global Constitutional Law. Is that a crazy idea? Can there be constitutional
law on the global level? What does that actually mean? What do people try
to tell us when they do this kind of important work. What is Global
administrative Law? G-A-L. All these things are not
just some hobbies of people, but if we don’t show that
they’re politically relevant, they won’t be. So then theory Redux
or maybe revisiting. So in the following
few slides, and I’ll say a few words about
transnational law basically as a lens
that might help us to reposition some of the
things that have been going on. So transnational law
remains somehow contested. I, although I’m so
invested in that. I’m growing less and less
interested in actually defining what that is because of the
work that is reflected in this like before is so rich that
transnational law basically points to this space in
which this work happens which is its border crossing. It has to do with movements
of ideas and people. And it challenges
our understandings of what is public
law– private law. What is law– what is not law. What does legal pluralism
actually mean in a world where so many norms are
created by private parties. Or where the
concretization of a norm is done by private parties
and the general framework. The general law doesn’t
even tell exactly what the outcome should be. So transnational law–
how do we define it? We defined it either from
what we already know, we say. So this is basically
public and private law but now operating outside
of the nation state. Or it’s something entirely new. It’s sui generas–
something that we can only describe from inside. So what are some
of the references that we have when we look
at the formations of law in a global context. So we feel that probably we
cannot just analogize from domestic law to what might be
emerging forms of global law. But we also know that we don’t
want to give up on this just yet, because the experiences
of domestic law are so crucial. And they’re so full
of fight and struggle and so much bloodletting. And high price has
been paid to create domestic constitutional legal
cultures– that you can’t just suddenly throw this all
away and say, let’s just see what global law looks like. It’s all about
understanding the connection between different locally
experienced formations of law and struggles over law. And struggles over access to
justice and the formations that we see outside. So we know that some of the
ways of putting order as hierarchies between domestic–
national– municipal law, on the one hand. And international
law on the other. We also know that
the formations of law that we have available
to address border crossing activities are
regulated and driven mostly by the function
that they have to fulfill. And so that’s why
we differentiate between private international
law, otherwise known as conflict of laws and
public international law. And we think that
basically covers it. We also know that a lot of the
formations that we now find are driven by a very, very
heterogeneous interest. But we also know
that some interests are more powerful than others. And so business interests might
be more powerful than others. And that’s not just
that Bologna had to learn that when they wanted
to resist the trade agreement. This specialized work by Khaliq,
for example, of mine in London on transnational commercial law. He of course, stands
on the shoulders of people that have been doing
transnational commercial law now for close to 100
years, if not longer. For them the question
whether it’s a law or not law has never been as relevant. It’s all about the function that
these normative arrangements actually have to fulfill which
is to facilitate global trade exchange. But there is also other forms
of border crossing that appears. It’s piracy, it’s human
trafficking, it’s organ trafficking. Where do the norms come from
that address these phenomena? So now we move from Formations
of Law to Foundations of Law and what can we fall back on. So where does legitimacy come
from in this increasingly messy landscape of legal formations? Is it religious? Is it Thomas Hobbes? Is it Westminster
parliamentarism? Is it the Security Council? Or is this a lawmaking body? Is the G20 meeting– is that just a meeting
of powerful people? They discuss policy
or is it lawmaking? Is Real Plus 20
the best thing we could have before we had
the Paris agreement in terms of setting forward
a few standards in global environmental
regulation? Or is it just a conference? What is the significance
of these formations. Why do I mention those, not just
to paint a colorful picture. But if we don’t think a bit
more creatively about formations such as those, then
they will be irrelevant. But if we ask, can they
be relevant as things in terms of consensus
which is your colleague, Frank Garcia’s third
take in his book on 2013. This third take
about consensus– so where does global consensus–
where do agreements emerge from that we could
rely on in terms of searching for a liberal
theory of law, if not justice? These formations
may be are that. Is the World Social Forum
a basis of legitimacy? Or is it just a
talking club of those that get excluded
from other sessions. What’s the legitimacy
of the 99%? What’s the relevance
of such formations? So we put these
questions of legality and that transformation
and questions of contested legitimacy on the table. And we end up with what– a
question of how does the law look like? Where does it begin? Where does it promulgate from? Where does it emerge from? Is it legitimate? Is it not? Where do the
standards come from? And we end up with a picture
like this which is fascinating but also terribly frustrating. So we see shifts
that take place. And if you taught an
introductory class to public law, at
some point, we would have to show our students that
it’s no longer correct to just talk about the traditional
public administrative constitutional law framework. But you have to show
that some of these shifts have now left a great– have
had a great impact on how law operate. So we move from concrete forms
of how a particular law looks– how a particular regulation
looks increasingly to experiments. That’s the term that we hardly
ever put into the classroom. But how are students and
how are we to make sense of experimental lawmaking–
of experimental judging– of trying to get it right but
to realize that we actually have to revisit this. We move from government
to governance. But that doesn’t mean– and that was we lost 10 years
through these fruitless debates because public you always
had, no that’s not true. We still have government. It was never the
point to say that one got replaced by the other. But huge transformations take
place if private act as– and transnational
forms of norm making start to interact with
formally established forms of government. We move also from
municipal to global. We realize that some
problem-solving processes have to take place on the global. But there’s also a dark side. We also see that certain
global norm-making of consensus processes have
a huge impact on the local. Most very problematic is
that in many ways now, we find that enforcement– although you could
say enforcement is a question of political and
moral responsibility, which as we have learned
100 years ago, should translate into
legal responsibility. But if you try to tell that
to a multinational corporation and ask about the
responsibilities for labor and human rights
abuses far away, they will say, no, that’s
a separately legal person, and that has nothing
to do with us. But we are happy to publish just
like we did in the supply chain law in California now. We are happy to publish our best
efforts of eradicating slave labor and other traces
in our supply chain. And you saw the case
is from 10 days ago. Cases are being
brought, and you can show that disclosure
will not yield results at in any way close to what
you would have had if you asked for real enforcement. But maybe that’s as good
as it gets right now. So what follows from this? What does globalization 2.0. How could that look like? So actus norms processes is a
very simple sounding proposal. But I’ll try to
show a little of how that could be quite fruitful. So rather than saying
that states make law and that the executive
apparatus are responsible for
concretizing those laws. And that these laws
are laws if they have gone through that process. Rather than doing that,
a sociologist asks, who are the activists
that are engaged in the creation of norms? What different types
of norms do we have? And how do the processes look
like that generate these norms? So what are we doing. Are we proposing a new
philosophy or theory of law? Or are we saying, no but we will
sociologize our understanding of law just a little bit. So we suggest
ectosome’s processes, and we are now overwhelmed
by a huge sum whole legacy and history
already of people saying, no, no there’s actually
much more going on. Transnational law
is a project that actually is just about the
creation of global markets– your slow attempts– your
careful attempts here to suggest that it’s all about
legal methodology of doing law in a global context. Not very convincing
because we already learned. We learned early on that
it’s all about facilitating global exchanges. So that’s why it’s necessary
then to review at least some of the sign posts. So Phillip Jessup’s book– and of course I’m
supposed to tell you that you should read
this book at some point because a professor always
tells you what you should read. The good news is
it’s very short. It’s 113 to 160 pages. And it’s actually quite
remarkable because there are three theatre plays in it. So the style of writing that
book is really quite fabulous. But I don’t think that a lot
of what we do right now was actually on Philip Jessup’s– in his recipe book. I think we’ve gone
further, but what we find now is that there’s
interesting constellation. So when Anne-Marie Slaughter
writes in 2004, A New World Order, she writes in a
very straightforward way that we are surrounded. And she writes as a
political scientist and national relationist. She writes that
we are surrounded by a much more complex landscape
of norms and processes. OK, so now what then
is behind this– relatively ambitious
or maybe just hidden secretly ambitious
project of transnational law. One is to say that transnational
law is only a vehicle to ask a few questions over what
terms, what kinds of legality have we had so far. And what forms of
legitimacy have we had. And that it reminds us in
fact, that we have somehow learned to accept that
there is an abyss– a gap– a difference between
legality and legitimacy. But if you try to
explain that to a child, the child would say that
that’s not only cynical– if a child knows
that word already, and of course, our children-
poor ones– they know that. But they also realize that
it’s not logical nor should of course always be legitimate. Laws should always
embody justice. But somehow, it doesn’t. Why is that? Transnational law asks
us to revisit this because it shows that
there’s something already wrong in Denmark
for a long time. Laws also transcend,
and laws also a lens to trace a few of the
developments of norms of legal, of orders of norms that
have grown exponentially and ask who’s driving those? Who’s in fact doing investment
arbitration all right now? ? Who is calling the shots? Who’s doing lex mercatoria? Who is behind global
financial regulation? And I’ll say something more
about this in a second. One of the most
transnational feels ever– unruly complex– the stuff
of books and books and books. The global war against terror. What is that 9/11, though. We have to look at it. So then last key, I already
said that for me, one of the most important
things is when we talk about
transnational law, we don’t talk about something
that takes place outside. But we talk about the connection
between legal and political developments underground
locally in different places, about some of whom
we know a lot. And often we don’t know
much more about others. That has to change and
the developments outside. So where can justice come from? And that’s a crucial one now. So I want to suggest
very roughly again– there are maybe three
ways or three drivers of transnational law. And we have to ask
whether they are also the promulgators–
the generators are the foundations of justice. Unfortunately, the
former’s only true. Its drivers of law and that’s
already problematic in itself. So one is that transnational
law formations are the result of problem solving. So transnational law
formations in this complex mix of public and private states,
international organizations, NGOs, private sectors. These norms get
created and incredibly manifested and institutionalized
in highly complex ways. In response to
moments of crisis– and we already know for a long
time that he governs or he governs the moment of
crisis or of exception who calls it that way
and who also is in charge of saying when it’s over. So 9/11 law is one of the most
important and important fields in that way for us. Our students, many of
whom they for them, 9/11 is a historical datum. It’s not a marker of what was
before and what was after. But it is the way that
they have learned to talk about freedom and security. The war on terror
and its permanency has become a normality for
the younger generation. That’s really crucial for us
because 9/11 law is so complex and 9/11 law was created
in the heat of the moment. So if a country such as Canada,
where many of the flights got rerouted to managers
in 2 and 1/2 weeks to create a legislative
package that changed 200 laws in the Canadian
legal DNA that that should make you think. So you can change 200
laws in a matter of days. But how do you
execute that change? How good are your
control mechanisms to see what has
happened to those norms? Who looks after sunset clauses? Who looks after– is there
still a standing committee that has anything to say? Has that work been done? Is there a promulgation– a proliferation of these norms? Who’s in charge of
these processes? A happier side, maybe,
is climate change law. So the diffusion of norms,
as different scholars have called it,
that global infusion of norms in a more hopefully
forward-looking and optimistic way is climate change law. 9/11 is the dark side. Climate change law
might be the right side. The same complexity of
lawmaking of economic processes but hopefully,
with different results. The second option is the one
that many people in Europe still like is to believe
in overarching theories. So you have to have
a grand narrative– a theory of concept– Global Constitutional Law–
Global Administrative Law out of New York. These are overarching concepts. But once you look at
them a bit closer, they really only live,
and they can only live if they work in small
detail and on the ground. But they are important because
they are about utopias. They might inspire. They ask us to put on
the table our differences and see why we have these. Lastly, the normatively
most modest one, is to just say transnational
law is a revival of social legal studies. It’s a revival to
look at concrete facts and then not to go crazy
in trying to derive major theories from that. If you had to say
which of these options correctly describes the
emergence of transnational law? Most likely, one would have
to say a mix of all of them. So where is transnational law? Where are these
norms located today? It’s very important
to briefly now know that the map has become much
more complicated to remember of what we mean when we used
to exclusively or predominantly associate law with this date. What did we mean by that? It’s important
because if we actually look a bit more closely to what
we mean when we say this date. Then a lot of that
can be rescued into this transnational arena. One is that this date is a fact. So it’s a historical experience. And once we start
to dialogue over how people in different parts of
the world in different times have experienced that
emergence of this date, then you actually know. You begin to hear
different opinions over what is actually at stake. It’s not just this date
as formalized and abstract by Friedrich Hayek
but is the state as it exists in different
concrete formations. It’s also an achievement
which is also crucial. And again these
days are important. So this date as a foreman
which we have fought for norms. And we have fought for
norms and for legal triumphs even if we then had to
see that you win in court but the world doesn’t
change tomorrow. But then we do it again. The state provided
that container. And so this stage is
also an achievement because it provides
us to be part of this. And we’re not being asked why. It’s a normative appreciation. We tend to rely on this
day to get things done and sometimes it actually
can get things done. So the foundations
of that state– of that 20th century
experience of this date, now through the vocabulary
of actus norms processes, is nothing post-modern at all. The actus of the state
administrative agency, etc– the norms are treaties
conventions regulatory acts straightforward. The process is a
democratic deliberation. Then we have to engage
in how well they work. It only becomes
interesting when you contrast that to what
the map looks like today. Map now is much more colorful. The map before is still there. So we haven’t moved on into this
new reality, and it’s all gone. We still have laws. We still have regulatory acts. We still have deliberations. We still have rules
that govern behaviors in congressional conventions. We have all of this, but we
also have now a multitude of other things. So we have other actus. We have in fact now a hugely
growing role of private actus to generate norms, to
formulate the content, and to make sure that they work. We have a hugely
important role of NGOs. If you look at some of
the Security Council resolutions and
you contrast that to the state of development
in public international law theory over where the
NGOs are proper subjects of public international law. In Security Council
resolutions, you can find so many hints already
to the role that NGOs play. That answers for itself. Questions of movements
of individuals. Which role do we
ascribe to them? The norms– so yes, we
have laws and treaties but we also have codes. And in some of
the most crucial– and many crucial areas nowadays
that are considered politically too sensitive where
we could never have a political consensus. We accept that private parties
will promulgate a norm. And then we can hold
their feet to the fire but what fire is that? We can name and shame them but
we often can’t enforce them. But we live now in
a world of norms that we also have a cause
such as the Bangladesh accord. Is that a law? It’s another law. Is it a new form of
transnational labor law? Or is it just an agreement
that most corporations now try to come out of. What’s the regulatory nature of
data that work from the last 10 years on indicators? What is the legal
nature of these data and how far do they
actually govern us? The processes in the
last year, unfortunately, has been this sobering moment
for all of us everywhere. What happens to the classical
traditional modes of voicing your political opinion? Where is vox populi,
the voice of the people? OK. So this is not advertising. This is just an illustration. So when we want to
now take this what I’ve suggested here out of
this world of grand theorizing, and you know a lot of sociology
and a lot of Political Science and interdisciplinary
and to just say OK, we do all of this work
just like we’ve been doing theoretical work before. But it only matters if
you can translate this into what we do daily. Then that works by not
saying everybody has to have a seminar in transnational law. There shouldn’t
be such a seminar. What should be is that we teach
the materials that we have and the fields that our future
graduates will work in– that we teach them with a view
to these changed conditions. And that means, for example,
that you say a corporate law class today that does not make
references to labor because we continue to say that workers
have an employment contract. They are stakeholders
of the corporation but they’re not part
of the corporation– has very little to do with the
live reality that surrounds us. So we have to create
those alliances. Criminal law taught
just as criminal law. But then students take
two years later a seminar in war against terror
or security law. It should already be
part of criminal law. Climate change governance, yes. But you also have to understand
the economics of carbon trading, not just be a public
lawyer who eventually becomes an environmental lawyer or
transnational environmental lawyer. Rule of law expert,
yes, but also then really put investment
arbitration law on the table. Governance through
disclosure, that’s all fine but give real world
examples such as WikiLeaks and Panama Papers. What is the legal
relevance of those? Global constitutional
law– I already said that. And post-colonial
law and development. And our transitional justice. These two fields should be one. OK. Lastly, can I have
three more minutes? OK. So what does this mean? Words, teach a lot but actually
examples bring it home. So my example is this one. It was very predictable that
we have to talk about this. So the FIFA scandal, I presume
of course for most of us, we know that it’s
about workers in Qatar. But somehow the
legal news about FIFA that made it into
every newspaper were not their workers. In some papers, yes. In New York Times and
the Guardian, yes. But it was all about
the rules of extradition and how is it possible that
you can enforce a recall norm somewhere in Switzerland. Is that possible? Is it not possible? Very interesting questions but
what actually lies behind this. So you follow the
little history. It’s scandalous–
it’s breathtaking of what happened– know
the arrest of the officials in all cases are being brought. You learn about the co-existence
of private ethical codes within FIFA and the attempts
of bringing proper claims against them for corruption. But of course, we know that
there is a story behind it. One of the links to
that story behind it is Ruggie’s report, right? And that’s why I said, if
you begin to think creatively about when arms
come from, then you find them in academic places
that eventually become highly, highly politically relevant. So you all know that
people that study human rights and
multinational corporations have been living in
this world created by Ruggie and his universe,
for I don’t know now, six or seven years? John Ruggie was asked by FIFA
to write a report for them on how this organization
can reform itself. There’s a video. There’s a report not very
long– very fancy, nice. And then there’s a
video that FIFA made. It’s 3 and 1/2 minutes. And we don’t have time,
but if you click on it, then you can see it. What we all care about, which
is what is the role of FIFA and having these
tournaments that leave countries
in a wreckage that have outrageously
negative impacts on the people on the ground
in these different places. None of this occurs. It’s about putting a woman
on different decision boards. On pluralizing they say the
decision making processes. It’s incredible,
really incredible. You have to look
it to believe it. OK, so then very
quickly about Qatar, why do we care about
migrant workers? In Qatar we learned
about this just as we in a labor law course, students
were still to take labor law. Or maybe in corporate law, we
exposed them to that and say, what’s the biggest
story behind it? What law applies
to these workers? And they would say,
well, I don’t know. I guess Qatari Labor Law. And you say, well, OK start
looking for Qatari Labor Law. And what you find
then is that there’s a difference still between
domestic municipal law on the ground. But that law now you cannot
understand anymore if you don’t see it in its connections
to international law and to soft law. And that’s the constellation
one has to study. So we learn about the
working conditions and now we ask what different
norms of law interact here. Now I’m almost done. So you look for hard law
first as every lawyer should do, right? You look for hard law and you
see that Qatari Labor Law has in fact been undergoing
tremendous change, something that you would never have
imagined before because it’s far away. You didn’t even think of
labor law that exists there. Not only does it exist but
people are contesting it. People are trying to
reform it, and you have to study it
from the inside which might mean you can’t do from an
abstract vantage point anymore. You have to go and talk to
labor lawyers on the wrong day. It comes perhaps in hard form
in the form of ILO conventions. But how many people have
ever heard of the ILO and what it does? And what’s the impact
of those conventions? But then there’s this
universe of soft law. So what is the relevance
of the so-called Ruggie principles that you
elaborated in the UN framework a few years ago. What is the regulatory function
and also weight of the FIFA internal ethics code. What are different–
what is the legal status of the arrangements now between
different companies, trade unions, newly formed
coalitions of trade unions, and corporations? Who are the drivers? Who in fact is the population– the set of actus that derive
regulatory developments here. If you’ve never started
to develop a sociological perspective, how
will you find those? Because you would say,
I will apply a case but there’s no case. So you have to reverse
the perspective from learning judge-made
law to how would I, as a lawyer build a case? Who do I need on my team? Where do I need to look? What can I argue to say
that a certain fact is legally relevant? Because if you read only
cases, then that decision has long been taken and
hardly ever does the decision make it clear why something
is considered relevant or not. But you have to tell the judge
why this particular element is legally relevant. And if you live in a
world of soft enforcement and public disclosure, then
maybe a public statement by the CEO or
chairman is legally relevant because it might be
the only thing you can stand on. So then what do you do when
you develop a legal strategy. Where do you begin to sue? Who is the right addressee? How to develop a
case that has to work with so many
different variables. Do you go directly against FIFA? FIFA will say, well, we have
not employed a single worker. But it’s part of making public
of a purpose of making public. Do you go against
the Qatari government for not enforcing the
labor laws that they have? Do you sue Qatari
local companies? Do you go after
Western based companies that have their business
interests there? Do you try to litigate a company
for financial compensation? Or do you try to change
conditions on the ground? Do you work for the
change of categories– different corporate liabilities? Do you say there should
be a talk for negligence of badly executed corporate
supervision of a mother company of its subsidiaries? What if it’s not a subsidiary? It’s just a contractual partner. What is the law that governs
global supply chains? What is global supply chain law? Is it contract
toward corporate law? So one develops– one
pursues these legal avenues that we’ve all been learning. But now in parallel
one also looks for how do these cases
look underground. What do the actus on the
ground actually try to achieve? Do they try to just walk
away– get their passports back as the migrant workers
give their passports and just go home. Or do they want to work
under different conditions? How do you create that
regulatory regime? What’s the role of the
lawyer who is no longer just a litigator but an advocate? ? And that’s the world in
which they operate, right? They have these different
reference points and legal areas. OK. One– 60 seconds. 60 seconds. So every student learns in
the US their lot in a case. They learned the lot in the
case and usually still homes this descent but
often not hunt descent because it’s not so spectacular. In my view it’s
absolutely spectacular. But what’s so remarkable
about contrasting the Lockner decision from 1905 with
the Qatari decision or the Foxconn
Suicides in China. or the Bangladesh
Rana Plaza disaster is that Lockner is a case
that we could rip our hair out because it makes us so– it engages us. But in fact in Lockner, you
have so many things in place that you don’t have
in place anymore. You don’t have a
constitutional text to rely on. You don’t even know now on Rana
Plaza which court to go to. You don’t know much
about the corporation. In Peckham with Peckham’s
judgment in Lockner, we also learned nothing about
the factory or its workers. It was all highly abstract. It was all about
freedom of contract that was allegedly embedded
in the Constitution. But at least we had
these reference points. The company was,
without question, considered as a private
actor, and therefore, it should preserve the
right to contract freely. These constellations of
global supply chain networks– are they public? Are they private? What is the responsibility of
a so-called legally private corporation for
all these workers? Is it still only private? So yes as an employment contract
or is it something else? So it can be very
powerful to contrast a case that is so contested
in itself with a constellation where you don’t have that case. And how does the
interpretation of Lochner influence our understanding
of these transnational labor conflicts. OK, that was my example. Thank you so much
for your attention. [APPLAUSE]

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