A Perilous Imbalance: The Globalization of Canadian Law and Governance (review)

One of the many reasons to regret the closing of the Law Commission of Canada in 2006 was the early demise of its project on globalization. Two of the scholars involved in this project were Stephen Clarkson and Stepan Wood. Clarkson, a professor of political economy at the University of Toronto and a senior figure in the Canadian political science academy, is well known for his work on Canadian foreign policy, trade, and globalization. Wood, a professor at Osgoode Hall Law School, has primarily worked in the area of environmental law and governance. Clarkson and Wood both contributed to the Law Commission’s excellent 2006 discussion paper, which was finalized by Craig Forcese.¹ In A Perilous Imbalance, Clarkson and Wood display the knowledge and insight they accumulated through this project and through many more years of committed scholarship. The result is a sweeping overview of the various ways that globalization affects Canadian law.

The book is divided into two parts. In the first part, the authors use the metaphor of a constitution to describe global law and governance. They coin the term ‘supraconstitution,’ which they use to refer to the ensemble of global norms and institutions that effectively constrain domestic law making (55). They proceed to analyze global law and governance in terms of its ‘supraconstitutional’ effects. Clarkson and Wood begin with international economic law, focusing on NAFTA and the WTO as legal structures that entrench the private rights of traders and investors and therefore have supraconstitutional status. The authors then turn to international environmental law as well as agreements related to health, culture, and human security. They argue that these social and environmental regimes fail to act as effective constraints on domestic law making and therefore cannot be considered part of the supraconstitution (155–6, 179).

In the second part, the authors complicate this picture by describing how various actors have contributed to the elaboration of global law and governance. Beginning with the state, they note that neo-liberal globalization has not only constrained the state but has also transformed it, weakening some areas of state regulation (such as those dealing with social welfare and the environment), while strengthening others (such as those dealing with immigration and security) (194–200). State actors also participate in globalization in various ways. ‘Transgovernmental’ networks of state officials are able to pursue specialized policy goals on a global scale. Canada’s Parliament prescribes extraterritorial rules, and individuals look to Canadian courts to provide justice for wrongs that occurred abroad. (Conversely, the impact of other countries’ laws and judgments are felt in Canada.) Laws created in one country also serve as models to be emulated (or imposed) elsewhere. While these forms of interaction are generally consistent with neo-liberal, market-oriented projects, they also contain emancipatory possibilities, as for example, in their emphasis on human rights (219–22).

The authors then turn to ‘non-state’ forms of governance. They describe the social, economic, and environmental impact of transnational business as well as efforts to regulate business in the name of corporate social responsibility. They cover lex mercatoria as well as the globalization of the legal profession. Finally, they discuss the transnational role of civil society organizations, social movements, and Indigenous peoples.

Clarkson and Wood’s diagnosis is that the supraconstitution and other forms of global governance have created a ‘perilous imbalance’ between economic and social priorities (42, 269). In this respect, their analysis is consistent with the story of the breakdown of embedded liberalism. From the late 1940s until the 1970s, the liberalization of international trade through GATT was accompanied (at least in North America and Europe) by state programs that helped to reduce inequalities and ensure social stability. Since the 1970s, however, such programs have been undermined by neo-liberal efforts to expand global markets. Trade and investment agreements have made it easier to characterize domestic social policies as trade barriers or expropriations. The state’s capacity to ensure social welfare...