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06/10/2022. 06:15:15

LegalToday

Por y para profesionales del Derecho

The New Global Law

es catedrático y abogado

Rafael Domingo
director de la Cátedra Garrigues de Derecho Global. Universidad de Navarra

One of the most important legal challenges today is the creation of a Global Law. Global Law shall serve as the beacon for peace and justice in the third Millennium. But it would be impossible to create the new Global Law without the education of global lawyers.

Irrespective of preference, penchant, or desire, economic globalization is a salient sign of our times.  It is plain and simply irreversible. Assuming this proposition to be so, economic globalization must be incorporated into and garnered by the Rule of Law.  If treated thus, economic globalization can be rehabilitated to become the guarantor of peaceful coexistence between nations and peoples.

In the same way that the Nineteenth Century witnessed the advent of constitutional, tax, and labor law, the Twentieth Century spawned environmental, health, and internet law.  In this same vein, the Twenty-First Century likely shall establish the framework for a new Global Law (novum ius humanitatis), as a foundation for a peaceful order among all human beings and every nation.  Indeed the elements and configuration of this new law are novel and attendant to current global issues.  Similar in depth to the challenges that the American and French revolutions addressed, this unexampled ground breaking Law requires an equally original response to the legal sciences, and must adapt and create new terms, concepts, and methodologies.

Global Law is not to be confused with modern International Law (public or private). Modern International Law is based on the concept of territorial sovereignty (the "Modern State") and developed pursuant to the theories articulated by Emmanuel Kant and Jeremy Bentham, who were the first to use the term "International Law".  The majority of the earth's population is constrained by this political theory, which by all accounts has been rendered obsolete.  Cloaked in multiple disguises that served to temper its purported omnipotence, whether a national, liberal, federal, social, or democratic state, this sovereign territoriality and ethically coercive political unit is experiencing its death throws at the very threshold of the Twenty-First Century.

Globalization takes place at a speed that inevitably imposes new social models and rubrics on communities.  These communities are structured with law derived more from judicial opinions (auctoritas) than legislative rulemaking or the power of legal enactments of a non-judicial nature (potestas)This phenomenon explains why Global Law is more akin to the generic common law tradition than to the civil law or continental law system.  It also provides the reason and explanation for why Global Law is more amenable to the concept of civil society than to the politics of the modern day Nation-State.  The principles of personality, solidarity, and universality are the fundamental elements that together create the new Global Law.

 

Civil Law as a Uncommon Law

As a predicate to the development of this Global Law, we must overcome the artificially confected and imposed "contradictions" between these two principle legal systems: the Civil Law and the Common Law. Ernst Rabel (1847-1955) the founding father and pioneer activist in the field of comparative law was often fond of stating that civil law was more a matter of uncommon law, properly speaking, and that common law was best understood as uncivil law. He was not altogether off the mark. Further, universal legal practice demonstrates that legal systems entrusted exclusively to judges (judge made law or judicial law) are conducive to considerable arbitrariness. Similarly, legal systems solely based on statutes (legislative enactments or statutory law) devolve into mere formalistic positivism that is foreign to the social dynamics of our times. Ultimately, the rapidly growing importance of identifying alternative dispute resolution methodologies confirms this hypothesis.

 

Global Lawyers

Just as poetry is not possible without poets, law is not possible without lawyers. Ancient Roman Law created the "lawyer" as a professional acting within the ambit of a profession (juris prudentes), and as progenies of this legal tradition, both the civil law and the common law have evolved, in large measure, because of the dedication of gifted jurists. Global Law will only become a reality if "global legal practitioners" are educated and trained in conflict and problem resolution from a universal perspective.

The challenge to achieving this goal is similar to that placed before the renaissance School of Salamanca in the Sixteenth Century when Spain opened itself to the New World. At that time our imperative was the creation of much needed principles of modern international law to regulate the novus ordo orbis. Today our mandate is the creation of the principles of the new Global Law, which shall serve as the beacon for peace and justice in the third Millennium.

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