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A Global Law for a Global Community

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The international community, under the impact of globalization, is being transformed into a new community made up of new members, inspired by new principles, and based on new ideas. In the first part of this paper, I aim to justify the existence of
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  1 A Global Law for a Global Community by Rafael Domingo *  In Maciej Dybowski and Rafael García Pérez (eds.). Globalization of Law. The Role  of Human Dignity  (Cizur Menor: Thomson Reuters Aranzadi, 2018) 1-22  Abstract: The international community, under the impact of globalization, is being transformed into a new community made up of new members, inspired by new principles, and based on new ideas. In the first part of this paper, I aim to justify the existence of this emerging community using four arguments that can be summarized by the Latin terms: dignitas , usus , necessitas , and bonum commune . In the second part, I argue that the new global human community comprises persons, not nation-states; that it is universal in nature; that membership in it is compulsory; and that it is incomplete, and complementary to other forms of community. These features of the new global human community will determine both the structure of its legal system and its legal authority. Content: 1. Introduction. 2. Four arguments for the existence of the global human community: a) dignitas ; b) usus ; c) necessitas ; d) bonum commune . 3. Main features of the global human community: a) A political community of persons, not of nation-states; b) A universal community; c) A community of compulsory membership; d) An incomplete community; e) A complementary community. 4. Conclusion. Keywords: Global law,   Global human community, complete community, necessitas , usus  of the earth, dignity, global common good. 1. Introduction The model of a universal human community living in perpetual peace and lasting happiness was for centuries a dream of many philosophers, jurists and poets. The Stoic cosmopolitan vision, 1  the Roman aspiration toward an empire without end, 2  the *  Rafael Domingo is Spruill Family Research Professor at Emory University, and Professor of Law and ICS Research Professor at the University of Navarra . I offer a revised version of my article “ The New Global Human Community," published in Chicago Journal of International Law  13.1 (2012) 563-587. 1  Cf. Seneca, On benefits 7.1.7 and 7.19.8 (ed. John W. Basore,  Moral Essays  III,  De beneficiis , The Loeb Classical Library, Cambridge, MA: Harvard University Press, reprint 2001). 2  Virgil,  Aeneid   1.278-279 (ed. H. Rushton Fairclough revisited by G. P. Goold, The Loeb Classical Library, Cambridge, MA: Harvard University Press, 1999): “His ego nec metas rerum nec tempora pono, / imperium sine fine dedi” [For these I set no bounds in space or time, but have given empire without end].  2 Christian ideal of a world united by charity, 3  the Dantian longing for a universal monarchy, 4  and the Kantian project of world peace, 5  among other ideas, have contributed over time to the growing sense that all human beings are members of a single universal community. Ever since the discovery of the New World at the end of the 15th century, jurists and theologians alike, most notably members of the School of Salamanca, 6  have been interested in the legal and moral implications of the potential development of such a global commonwealth. The collapse of international society after the tragic elimination of nearly 60 million people during the Second World War revealed the weaknesses of the international legal system born at Westphalia (1648) and confirmed at Utrecht (1713). That international order was based on the concept of the sovereign nation-state as the only recognized subject of international law, and on the idea of war as a legal remedy to resolve conflicts between and among states, once diplomatic efforts had been exhausted. The Universal Declaration of Human Rights (1948) was a turning-point that gave prominence to the goal of establishing a community forged not only by national self- interest but in a “spirit of brotherhood.” 7  By the end of the 20th century, with the rapid rise in worldwide interdependence (and mutual vulnerability) that we call “globalization,” old utopian ideals of human unity and  perpetual peace had become political imperatives. In today’s globalized world, no existing political community (local, national or supranational) can be considered fully self-sufficient or guarantee complete global justice. And without justice, there can be no peace, liberty, or happiness. There is a province of basic justice that can only be secured in a global context. 3  Cf. Tertullian,  Apology  38 (ed. on line Jacques Paul Migne, Patrologia Latina , vol. I.  Apologeticus adversus gentes pro christianis , col. 0465A) available at: http://www.documentacatholicaomnia.eu/02m/0160-0220,_Tertullianus,_Apologeticus_Adversos_Gentes_Pro_Christianis,_MLT.pdf 4  Dante Alighieri,  Monarchy  1.15.10 (ed. Cola di Rienzo and Marsilio Ficino, Milan: Arnoldo Mondarori Editore, 2004). 5  Immanuel Kant, Perpetual Peace. A Philosophical Sketch  (ed. Hans Reiss and H. B. Nisbet, Political Writings , 2nd expanded edition, Cambridge, New York: Cambridge University Press, 1991) pp. 93-130. 6  Cf., Francisco de Vitoria,  De potestate civili , question 3, article 4, section 21 (ed. Anthony Pagden and Jeremy Lawrence, Francisco de Vitoria, On Civil Power, Political Writings , Cambridge: Cambridge University Press, 1991) p. 40. 7  Cf. article 1 of the Universal Declaration of Human Rights (10 December 1948), available at: http://www.un.org/en/universal-declaration-human-rights/  3 The common contemporary goal of addressing globally the problems afflicting humanity is not just a moral option but a moral 8  and political duty with important legal implications. Global issues such as international terrorism, arms trafficking, wars, hunger and poverty, political and economic corruption, and environmental challenges cannot be adequately addressed by lone national governments or by an amorphous community of states in which self-interest trumps the global common good. In its unwieldiness, the international community today resembles a hydra, the many-headed serpent of Greek mythology, with a sovereign state for each head. Its structure and administration have become completely obsolete. It is facing one of its most profound crises since the end of the Cold War. Lacking in common action and universal awareness of common interests, the international community could be said to be (following Yves Simon’s famous distinction) more like a partnership than a community in the strict sense. In a  partnership, “authority would ne ver be needed except on account of some fault or accident. ” 9  But in a true community, such as the global human community, all members, regarded as free and equal, would be involved in a fair system of social cooperation. 10  And this kind of union would require legal authority acting through legal institutions and ordered by a legal system. Without undergoing a deep transformation, the current international community can scarcely survive in this new “postnational constellation” 11  of transnational, supranational and global actors. Global interdependence is not compatible with complete national sovereignty. We can glimpse the emergence of a new pluralistic and global human community made up of all human beings and based on the dignity of each 8  In the same vein, Allan Buchanan,  Justice, Legitimacy, and Self-Determination: Moral Foundations for  International Law  (Oxford, New York: Oxford University Press, 2007) p. 432 9  Yves R. Simon, The General Theory of Authority  (Notre Dame, Indiana: University of Notre Dame, 1962) p. 31. 10   Cf. in the same vein, but using the term “society” and not “community,”  John Rawls,  Justice as Fairness. A Restatement   (Cambridge, MA, London: The Belknap Press of Harvard University Press, 2001) p. 95. In this paper, I do not differentiate, as John Rawls does, community from society. I use the term community and not society because this is the term that legal thinkers employ to refer to the international community. 11  Cf. Jürgen Habermas,  Die postnationale Konstellation  (Frankfurt am Main: Suhrkamp, 1998). For more on the legal implications of this postnational constellation, see Nico Krisch,  Beyond Constitutionalism: The Pluralistic Structure of Postnational Law  (Oxford, New York: Oxford University Press, 2010).  4 person. This global human community, in my opinion, should be organized according to the principle of global rule of law. 12  In a certain sense, we are witnessing a process of constitutionalisation, which is transforming the current international community into a global constitutional community. In this process, certain constitutional standards and ideas, such as the rule of law, separation of powers, fundamental rights protections, democracy and solidarity, are being elevated to the status of global legal first principles or primary truths. That does not mean, however, that this new global community would need a formal written constitution, or that it would have to be consolidated into one comprehensive structure that thoroughly embraces all existing legal relations. The new constitutionalism is very far from the idea of a world state. We cannot apply to this emerging global community the same principles that inspired the constitutional nation-state. There is at its core no formal Constitution, no sovereign constituent power, bu t a certain “mindset , ” 13   a “particular cognitive frame for the construction of legitimate authority, ” 14   or “authoritative standards of legitimacy for the exercise of public power wherever it is located. ” 15  Insofar as I try to argue here that the new global human community, like any community, needs a legitimate and dispersed global authority, I am working on the same assumptions as cosmopolitan constitutionalism, 16  although not exactly using the same tools, as the reader will soon note. We are climbing different sides of the same mountain. 12   For more on this concept, see Rafael Domingo, “Gaius, Vattel, and the New Global Law P aradigm ,”  in European Journal of International Law 22.3 (2011) 627-647: Gianluigi Palombella and Neil Walker (eds.),  Relocating the Rule of Law  (Oxford, Portland, Oregon: Hart Publishing, 2010), and Neil Walker,  Intimations of Global Law  (Cambridge: Cambridge University Press, 2014) 13 Vid. Martti Koskiennemi, “Constitutionalism as Mindset. Reflections on Kantian Themes About International Law and Globalization,” in Theoretical Inquiries in Law  8.1 (2007) 32. 14   Mattias Kumm, “The Cosmopolitan Turn in Constit utionalism ,”  in Jeffrey L. Dunoff and Joel P. Trachtman (eds.),  Ruling the World? Constitutionalism, International Law and Global Governance  (New York, Cambridge: Cambridge University Press, 2009) p. 321. 15   Cfr. Martin Loughlin, “ What is Constitutionalisa tion?”  in Petra Dobner and Martin Loughlin, The Twilight of Constitutionalism  (Oxford, New York, Oxford University Press: 2010) pp. 47-69, at 61. 16  For an overview of the different dimensions of global constitutionalism, see Christine E. J. Schwöbel, “Situ ating the Debate on Global Constitutionalism ,”  in  International Journal of Constitutional Law  8 (2010) 611- 635; and Anne Peters, “Global Constitutionalism,” in The Encyclopedia of Political Thought   (ed. by Michael T. Gibbons, Hoboken, NJ: John Wiley & Sons, Ltd. Published 2015) pp. 1484-1487.  5 So I can consistently refer to this new global human community as a global constitutional community. 17  The international community, under the impact of globalization, is being transformed into a new community ( novatio communitatis ) made up of new members, inspired by new principles, and based on new ideas and ideals. There are deep conceptual differences between the current international community and this new global community. The most important one is that the current international community is a community of nation-states; the new global community, however, is a community of individual persons. The implications of moving the primary subject of international law from the nation-state to the human person are so profound that they will change the very legal foundations of public international law. 2. Four arguments for the existence of the new global human community I will offer four arguments which in my opinion justify the existence of a new global human community, distinct from the classic community of nation-states. Because they are rooted in the Western legal tradition, I have used Latin terms to refer to them: dignitas , usus , necessitas , and bonum commune.  Each one in and of itself could justify the existence of this new global community. They focus on the same reality from different perspectives. The argument from dignitas refers to the strong and inherent connection between humanity as a whole and the law as a specific tool for ordering it. The usus  argument is based on the relation between humanity as such and the planet earth as the home of our species. The necessitas  argument is grounded in the concept of necessity as a source of binding law. If necessity gives rise to law, as we soon shall see, the necessity of protecting dignity and of preserving the planet as a human home are sufficient grounds for the existence of a global human community. Lastly, the bonum commune  argument can be used to defend the potential common good as a constituent element of the global human community. Let us start with the dignitas  argument because it supports not only the existence of the global human community but also the very idea of law. a)  Dignitas . 17  See, for instance, Anne Peters, “Membership in the Global Constitutional Community,”  in Jan Klabbers, Anne Peters and Geir Ulfstein, The Constitutionalization of International Law (Oxford University Press, Oxford, New York, 2009) pp. 153-262.
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