Global Governance and Its Effects on State and Law

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Introduction

Global governance is a threefold issue. It has theoretical, normative, and empirical dimensions. In combination they simultaneously reflect and form a new coordinated system for global policy making. Global governance is both multilayered with regard to the territorial aspect of the power structure and multidimensional with regards to the spheres of governance that it encompasses. Moreover global governance is accomplished through an extended set of actors which includes both bearers of public power (state, sub-state, local, and supranational institutions) and key veto players (see Tsebelis, 2002) with corporate and private background and structure that fulfil public functions or have influence over the public sphere and the public power (NGOs, transnational corporations, global religions, global professional and interest-based networks, different funds, rating agencies, stock and financial exchanges, banks, etc.).

The empirical aspect of global governance consists in the swirl of events that produce the current situation characterised by emerging supranational constitutionalisation with networks, hierarchic pyramids, transversally bordered spaces (see Sassen, 2013, 23), and symmetric or asymmetric chains forming the constitutional geometry of our time. Moreover it is a phenomenon with implications in different spheres of social relations – global, international and domestic, economic, financial, political, cultural, and constitutional.

There are different manifestations of the empirical dimension of global governance. Some of them produce reshaping of the institutional design of the systems or, vice versa, stem out of such remodelled institutional infrastructure. Others have projections in different policy fields. In any case they start to serve as important determinants of the political behaviour of the politicians, the citizens, the NGOs, the corporations, and all other actors of the socio-political process.

Thus the globalising processes related to the reshaping of constitutional geometry, reallocation of the power schemes, rescaling of the relations between the people, the public authority, and the territory produce the need for the legal institutionalisation of global governance. The multidimensional and multilayered socio-political process we are currently witnessing has to be democratically framed and based on rule of law in order to result in supranational constitutionalism and not to end up in expert led post-constitutionalism.

The normative dimension of global governance is nowadays not only a result of rational, centralised, and harmonised efforts for the establishment of a non-contradictory institutional system for public management of the socially important ← 7 | 8 → processes. It is polycentric and in many instances diachronic and asymmetric process of emergence of islands of governability of the increasingly complex and perplexed world. The “law’s melody” (see Postema, 2003, p.p. 227–241)¹ currently does not resemble the quasi-mathematical and well-ordered music of Mozart. Sometimes it is close to Schoenberg’s dodecaphony of co-equal interrelated tones, in other instances, it is rather a jazz interpretation whereas there are also cases of recognisable authority and imperialism as in some of the Beethoven’s works. To put it in the words of Martti Koskenniemi taken from his keynote speech at the IACL World Congress in Oslo in 2014 the current world resembles an institutional point of view very much like a Kandinsky painting.

Hence there are different approaches to the formation of the normative dimension of global governance. There are systematic efforts for establishing and reestablishing hierarchical or network public authority on different territorial and substantial domains. They are conscious and programmatic attempts at a rational (re)construction of the world and for regaining the dominance of the public authority over the private interest and thus for the maintenance of rational constitutionalism. In addition there are also negotiated and inductive forms of authority grounded on the reasonableness of the market logic and on the idea of interest based equilibrium (i.e. in the form of the Friedrich Hayek’s catallaxy) blurring the boundaries between the public and the private. In parallel to these general models for normative institutionalisation of global governance there are also normative practices of key veto players usually playing “nested games” (see Tsebelis, 1990). They also are being reflected in the normative dimension of global governance.

We have witnessed a rising theoretical interest in global governance during the last decades. The interest is accelerated by the advance of globalisation and the need to find new concepts and paradigms to approach the structural and functional changes it produces in the legal system and in the social and political reality. The theory of global governance has its specific profile and own standing in the debates on supranational and multilevel policy making in the context of late modern and early postmodern society. However often it is intermingled with the globalisation scientific discourse.

The global governance theory is closely related to the theory of globalisation. However it has its own profile, range of conceptual, normative and practical issues, and analytical apparatus. The scope and substance of the global governance theory may be constructed in a twofold way. One possible approach for the construction ← 8 | 9 → of a global governance discourse is to represent it as a continuation and mixture of several classical approaches to constitution-, policy- and law-making. Thus it will start to serve as an upgrade to theories, concepts, and paradigms that have already been developed with a view to different problems related to policy making in an increasingly pluralist setting, e.g. game theory, rational choice theory, supranational integration or supranational federalist theory, libertarianism, etc. Sometimes these discourses on which global governance is supposed to step upon are rather controversial and inconsistent with each other. Moreover global governance should not be tackled as a mere reproduction of theories with regard to new problems stemming out of the new realities that have emerged during the last decades.

Consequently a second approach is more plausible. It tackles global governance as an independent discourse that has to serve as a theoretical answer to the structural and functional changes of key concepts of legal, political, and constitutional theory. Core concepts such as power, authority, identity, state, society, territory, demos, nation, community, sovereignty, democracy, rights, jurisdiction, etc. are being put into question by several phenomena that have recently gained momentum. Here one can mention the information and communication revolution, globalisation, the crisis of territoriality, the new production modes, the structural changes in economy, finance and capitalism, and the global and trans-generational issues related to economy, ecology, public morality, and sustainable development.

The global governance theory is necessarily interrelated with the globalisation and modernisation discourses with regard to its ontology, teleology, axiology, and pragmatics. However it has its own standing. More precisely its analytical contributions regarding the conceptualisation and problematising of the structural, functional, and procedural changes in policy making and its legal and constitutional frame and infrastructure have to be welcomed and further elaborated.

This current book tries to address some of the above-mentioned issues. It is a conference volume of the 7^th Central and Eastern European (CEE) Forum of Young Legal, Political, and Social Theorists which was held on March 27 and 28, 2015 at the University of Sofia “St. Kliment Ohridski,” Bulgaria. It encompasses selected papers of participants in this conference that was devoted to global governance and its effects on state and law.

The book is based on the following logic. It begins with conceptual issues concerning the fundamental concepts of constitutional law science, political science, and the sociology of globalisation. It problematises the penetration and interrelation of legal orders and the structural changes of the law and state produced by the globalisation and global governance. Furthermore it continues with the ← 9 | 10 → influence of globalisation and global governance over substantial constitutional and philosophical issues such as human rights and trans-generational justice. Last but not least the emergence and development of new supranational forms of jurisprudence and their impact on the supranational and national legal order and institutional systems are analysed.

Thus the book tries to address some of the main issues and topics of research in the global governance discourse. On a structural level, the fluidisation of the demos, the enhanced importance of the global social communities, the crisis of territoriality, the reshaping of capitalism, and the relationship between the “public” and the “private” are discussed. The interrelations between legal orders, the monistic, dualistic or pluralistic architecture of the globalised legal space and the new institutional logic and dynamics of the governance are approached from legal, philosophical, political science, and sociological points of view. On the actors’ level the increased influence of transnational corporations, global religions and supranational regimes, and jurisdictions is conceptualised and critically studied. On the substantive level new approaches towards human rights, sovereignty, identity, and future generations are presented. What follows is a brief overview of the main topics and aspects of the authors’ contributions.

Part I is devoted to the paper of one of the keynote speakers of the conference. Professor (Prof.) Saskia Sassen analyses the current changes in global capitalism. She problematises the predominance of financial capitalism over politics and economy and the effects produced by the transnational activity of the global financial actors.

Sassen analyses the effects of the most advanced forms of capitalism on the global North and the global South. She believes that the global South has been forcefully integrated into the realm of global finance and world capitalism through several “disciplining mechanisms” – the increase of debt, the debt controlling instruments, and the appropriation of land by foreign public and private investors. According to Prof. Sassen, “The IMF, World Bank and other such programs establish the criteria and process these debts, thereby functioning as a global disciplining regime.”

On the other hand, the global North was submerged from the logic of financial capitalism via systemic financial crises. Sassen believes that the global North is being disciplined through financial adjustment crises that launched a new financial era that started in the 1980’s but accelerated after 1997.

To put it in Sassen’s words, “What stands out in this phase that begins in the 1980’s is that global and adjustment crises had the effect of securing the conditions for globally linked financial markets and the ascendance of a financial logic ← 10 | 11 → organising larger and larger sectors of the economy in the global North. In this process large components of the non-financial economy in these countries were ruined.”

According to Sassen ‘crisis’ is a structural feature of deregulated, interconnected, and electronic financial markets. Moreover, “If crisis is a structural feature of current financial markets, then crisis becomes a feature of non-financial economic sectors through their financialising.” Sassen believes that “The sharp growth of finance, partly based on the financialising of non-financial economic sectors,” is leading “to overall extremely high financial deepening.” Thus she introduces the concept of “financial deepening of economies.”

Sassen suggests that “the new age of radical reshuffling of capitalism” introduces structural changes in the society, economics and systems of welfare, and solidarity mainly via two logics. “The first one is the systemic logic of economic and (de)regulatory policies of most countries. The second logic is the actual material development of growing areas of the world into extreme zones for the enactment of that systemic logic, that is, for these new or sharply expanded modes of profit extraction disregarding the side-effects and social consequences.”

Sassen focuses on the capacity of key international institutions to impose particular logics across economic sectors and across the world. She does so through the lenses of several key normative concepts such as “corporate globalising,” “financialising of more and more domains,” which marks “the ascendance of a new organising logic in advanced capitalism,” “geographic expansion and the systemic deepening of capitalism.” Sassen believes that we are living in a “time of extreme financialisation” that is defined by the “expulsion of people and the destruction of the ‘advanced’ capitalisms of the mid-20th century.”

Three main ideas launched in this paper reveal continuity with previous key themes in Sassen’s work. Here she problematises the issue of territory through a specific angle. While analysing the land acquisition by foreign investors she emphasises “the shift of that acquired land from ‘national sovereign territory’ to the commodity ‘land’ for the global market. In other words, a weakening of a complex category that at its best brought with it a formal enabling of the state’s authority and inhabitants’ rights to make the state accountable.” Thus a second key issue reemerges namely the structural transformation of capitalism into a territory detached phenomenon and its emancipation from the economic and political substantiality. The destructive effects of globalisation towards established modes of economic and social relations resulting in expulsions are the third cornerstone idea from Sassen’s works around which her paper in this volume is organised. ← 11 | 12 →