Indiana Journal of Global Legal Studies 10.2 (2003) 25-64
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Normative Creativity and Global Legal Pluralism:
Reflections on the Democratic Critique of Transnational Law
The globalization process has changed the nature of the "social." Social interactions have become much more varied and flexible—transgressing traditional political and cultural boundaries (and expectations). The emergence of new forms of global law, which evolve and operate across these traditional lines, is a major aspect of globalization. 1 This expanding network of transnational "legalities" is not based on a coherent set of normative or institutional hierarchies. Rather, it represents a highly pluralistic mixture of legal regimes, with variable organizational and thematic structures: from state-oriented systems—such as the dispute settlement system of the WTO, or the adjudicative system of the Law of the Sea Convention—to hybrid 2 or private regimes. The latter category includes, for example, the expanding field of technical standardization, 3 the new governance structure of the Internet, 4 and the field of transnational arbitration. 5 [End Page 25] The globality of these systems stems from their (parallel) claim for universal validity, and from the cosmopolitan nature of their thematic horizon (which means that their normative effort is directed primarily at global issues). 6
Many of these new global legal structures have evolved in response to the needs of the global economy, with its adamant push for a system free of regulatory barriers. The normative outlook of these systems, however, is not limited to the economic domain. It has significant spill-overs, with wide-ranging social implications, from environmental to cultural. The influence of these systems over the life of the global citizenry has increased substantially over the last decade. The WTO legal system, for example, has addressed disputes involving difficult environmental dilemmas—from the risks associated with the use of synthetic growth hormones in cattle, to the damage caused to sea turtles by shrimp trawling, to the risks associated with the industrial use of asbestos. 7 International standards-setting organizations, such as the International Organization for Standardization (ISO) and the Codex Alimentarius Commission, have been involved in the production of controversial standards, such as the ISO environmental management standards (the ISO 14000 series) and the Codex Commission's evolving standards on foods derived from biotechnology. 8
The affinity of these global legal structures to economic interests has adversely influenced their sensitivity to "civic" concerns and has been subject to extensive criticism in both grass-root and academic circles. 9 The recent protests [End Page 26] against globalization—from Seattle 1998 to Quebec and Gothenburg 2001— were driven by a deep skepticism of the legitimacy of these a-national legal structures, and a conviction that their decision-making procedures should undergo deep reform. 10 What emerges from these protests is a profound aspiration for a "voice"—for greater civic involvement in these global processes of norm production. The critique of this evolving network of legal governance has been fierce. Thus it was argued, for example, that the alliance between the three Bretton Woods institutions (the WTO, the World Bank and the IMF) 11 and the Multinational Enterprises community is imposing upon the global society a new form of "faceless" tyranny, 12 which is driven by uncontrollable and (socially) inattentive economic rationality, and is governed by a dubious regime of "unaccountable 'experts' adjudicating behind closed doors." 13
This demand for a voice presents the global community with a difficult dilemma. While it is hard to question the urgency and genuineness of this aspiration, casting the demand for a voice in a coherent theoretical or pragmatic form [End Page 27] remains a difficult task. Two questions seem to lie at the heart of this difficulty. First, what does the notion of "legitimacy" mean in the transnational context? Second, in what sense does the call for "democratization" solve the problem of "legitimacy"? These difficulties point to the deep problem of the association between legitimacy and democracy at the transnational level.
This article seeks to confront this problem by taking a closer look...