ABSTRACT
The increasing significance of law in international relations, at both regional and global levels, has led to an intensification of concern with the globalization or internationalization of the ‘rule of law’ (Dezalay and Garth 1996: 3; Scheuerman 1999a). Whether in the area of international economics and the development of law through global institutions, like the World Trade Organization (WTO) and the General Agreement on Tariffs and Trade (GATT) and regional legal systems, like the European Union and the North America Free Trade Agreement (NAFTA), or the areas of human rights and the environment, there is considerable interest among international relations and legal scholars in examining the nexus between international law and international politics (Abbott 2000; Alter 2000; Goldstein et al. 2000; Goldstein and Martin 2000; Lutz and Sikkink 2000). Students of international society have traditionally believed that the domain of international relations is characterized by principles and rules that provide a normative framework for action (see Lauterpacht 1946; Bull 1977; Cutler 1991; Hurrell 1993). International law is thus regarded as an essential component of global governance arrangements and an ‘institution’ of global society that both shapes and is shaped by global economic, social and political relations. However, the contemporary concern with the globalization of law reflects a sense that there has been an intensification in the legal regulation of international relationships that is having an impact on the ways in which states and societies govern themselves (Twining 1996; Fried 1997). For some, the globalization of the rule of law is a welcome development that is civilizing the globe through uniform laws and practices that replace parochial systems of local and national law (David 1972; Schmitthoff 1982). Others doubt the ‘civilizing’ role of globalized law and suggest that the transmission of predominantly First World laws throughout the globe engages questionable practices of legal hegemony and colonial domination (Cutler 1995, 1997, 1999c, 2001b; Silbey 1997). For some the globalization of law signals a loss of national and domestic control over significant policy areas, eroding the
foundations for democracy and participatory forms of governance, while empowering supra-national sites of governance that lack democratic traditions and credentials (Trimble 1985; Habermas 1998: 151 and 155). This suggests that increased legalization is thus not necessarily linked with greater democratization. Yet others regard the globalization of law as filling governance gaps created by economic globalization and thus providing much needed public goods in the forms of economic security and certainty (Ruggie 1993; Moravcsik 1998). Finally, some focus on changes in the nature of global capitalism that are altering the context for international commerce and obviating the need for traditional law. The enhanced significance of soft law, informal, discretionary, and ad hoc and private legal regulation is quite inconsistent with and, perhaps, even eroding the foundation of the rule of law as a system of global governance (Scheuerman 1999a; Cutler 2001b).
