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University of New South Wales Law Journal |
[2] Globalisation in recent years has become a fashionable keyword and a very confusing phenomenon. Usually, it is perceived as something negative, but sometimes as something positive. It unites against itself people separated not only geographically but also ideologically. Against globalisation fight Trotskyists from Germany as well as members of the ultra-national Vlams Blok in Belgium. While some claim that globalisation is responsible for environmental degradation in different parts of the world, others claim that it enlarges our freedom. According to one opinion, globalisation is responsible for racism; according to others, it spreads peace and human rights across the globe. It is responsible for unprecedented concentration of power and also for unprecedented decentralisation of power. Globalisation is supported by Vaclav Havel and opposed by millions of others. In French, the term globalisation is a synonym for the greatest contemporary evil, because it means the spread of American culture, and as such should be opposed. However, the French have developed a new term with a positive connotation – ‘mondialisation’ – and that type of globalisation should be supported because it means the spread of universal values – read French values. Indeed, globalisation is a somewhat confusing phenomenon.
[3] That was on the level of popular discourse, and the situation is no better in scholarship. Today, there are chairs in globalisation, but confusion persists despite the fact that the term has become legitimate. In numerous conferences and journals, there are plenty of articles and papers using the word. Even in the legal sciences, which are usually far behind the other social sciences, it has become a legitimate term. Is it possible to find any agreement about the term? Probably those for and those against agree that globalisation means a new quality in social space, a shrinking world, and also that globalisation means, among other things, that nation states have lost part of their power. Nearly everybody would agree with such a vague description, whatever their worldview, but that is the end of any agreement. After that there is only confusion.
[4] Historians, too, contribute to confusion about globalisation. Some historians claim that globalisation is nothing new and has existed since the 18th century. In arriving at this conclusion, what they take into account is freedom of the market economy. Moreover, some claim that the global market was freer in the 18th or 19th centuries than it is now.
[5] Notwithstanding this confusion about the meaning of the term, and the
fact that the term itself is used with different meanings,
what seems to me
important is that the term globalisation represents a new quality in global
social relations – particularly
in terms of the impact of geographically
remote processes on local social, economic and political institutions. Before
globalisation
the world was still connected, but processes taking place in other
continents did not have such a direct and rapid impact on local
social
institutions and social structures as they do in the world in which we are now
living. Of course, even today, the degree of
that impact varies across the
different dimensions of social activity.
[7] Before I attempt an answer, let me relate a story. In the opening sentence of Anna Karenina, Leo Tolstoy wrote that ‘all happy families are alike but each unhappy family is unhappy in its own way’.[1] It appears that globalisation triggers social processes that stimulate unhappiness in different parts of the world, including Australia. This unhappiness, however, may take different forms in different parts of the world, and even within the same society. Despite my aim to write about Australia and globalisation, I will start with France.
[8] In his book The Lexus and the Olive Tree,[2] Thomas Friedman considers a hypothetical situation in which countries are on offer on the stock exchange. He suggests to potential investors that they buy shares in Taiwan, keep shares in Italy and sell shares in France. His advice was guided by the criterion of how each particular country is able to adjust to globalisation. Why buy shares in Taiwan? Because it is a country that has opened itself to global economic forces, and treats economic globalisation as a big opportunity. Italy treats it with hesitation, but is able to read the Zeitgeist – the spirit of the times – and find its place in the post-Cold War global world. But why sell shares in France? Because, according to Friedman, instead of accepting the trend, the French try to swim against the current and attempt to change the trend, which is just a waste of time.
[9] About a year ago, the media informed us about a French symbol of swimming against the current – the leader of the French peasants or farmers, Jose Bove. Mr Bove succeeded, in the sense that his act of violence against a McDonald’s restaurant, which should have been mentioned only as a short note in the tabloids, became a symbol of national struggle against ‘evil global forces’, receiving headline news coverage around the world. His actions provided a contemporary version of the David versus Goliath struggle. In that version, Jose Bove is David, representing everything that is local and French, against Goliath, representing global forces. More precisely, David represents French traditional culinary art with Roquefort cheese at its heart, while Goliath is the fast food chain offering the same type of food – especially hamburgers – around the world.
[10] The media called Mr Bove a contemporary Robin Hood from Roquefort. The reality, however, is different. Jose Bove does not represent the poor and powerless against the rich and powerful. French farmers receive huge subsidies from the European Union (‘EU’) and are protected by a powerful political lobby. Roquefort cheese is a luxurious commodity. Hamburgers are not able to steal customers of Roquefort simply because most customers of McDonald’s cannot afford it.
[11] The two stories mentioned above illustrate the inadequacy of the dominant approach to globalisation, which sees it as solely an economic force. They also show how quick people are to blame globalisation when economic processes undermine local interests. It is true that the most visible dimension of globalisation is the economic one. Nevertheless, outside of the economy, there are other dimensions that are not so visible, which accompany economic globalisation and have an enormous impact on existing social structures.
[12] In each country, it is possible to find leaders who are willing to use violence in their protest against ‘evil global forces’. All of them play on local sentiments and emotions of some form. Is this just a game of interests, or is something more at stake? It would appear that it is not only economic interests that are at stake – globalisation is a social and cultural revolution. In the strict sense, the situation is paradoxical because globalisation is not about the homogenisation of social, cultural and legal identities. Globalisation does not question separate national and regional differences, but is changing the world into open space in which, as in the new type of office space without walls, it is possible to see who works and who does not, who is having a nap and who sits at their desk. For people who used to love their own small, uncomfortable space where it was possible to shut the door and escape from control and surveillance, this new situation creates challenge and cultural shock.
[13] Change could mean that effort will be noticed and rewarded, or that weaknesses will be noticed and accounted for. In the eyes of those mentioned above, globalisation is the worst kind of evil and possesses of all the features of evil ascribed to 19th century capitalism. It does not have mercy for the weak, and rewards only the strong. There is also fear that globalisation will change the world into a big global marketplace where it will be possible to buy and sell everything, where only commodities will be important, and where there will be no place for values, norms, local and national traditions and cultures. In other words, there is a fear that globalisation, at the end of the day, will just equal the ‘Americanisation’ of societies and countries.
[14] However,
there are conceptualisations of the globalisation phenomenon that do not reduce
it to market forces, but stress the
multidimensional character of the new
situation. Below, I will sketch one such approach that in my opinion is
particularly fruitful
for the social and legal sciences.
[16] Much of contemporary social theory is not a great help in understanding globalisation, as serious work on the conceptualisation of globalisation has only just begun. At the moment, the focus is, rather, on packaging some observable phenomena, but not providing us, as yet, with the comprehensive tools with which to grasp globalisation in its entirety. Ulrich Beck – one of the leading social theorists of the contemporary time – is in my opinion correct in claiming that globalisation is the challenge for existing paradigms within social theory.[3] Initially, social theory focused on analysing societies within the nation state framework. Such an approach provided the nexus between social and legal theory, since both accepted the ‘box’ of the nation state as the starting point for analysis. Globalisation requires a radical change in the cognitive approach – a jump outside the nation state as setting limits for analysis. At the moment, we do not have sufficient tools to do this.
[17] Within legal theory in particular, the focus is still on nation state legal systems. From this it is possible to draw two important methodological suggestions. First, it is impossible to build a legal theory that includes globalisation without adequate social theory. Second, due to a lack of proper social theory, all that is possible now is to describe the impact of globalisation processes on national legal systems; in other words, to describe the process of adaptation and resistance to new global social processes within the national legal system. Only legal scholars with an adequate background in social theory are in a position to grasp the process of globalisation.
[18] These two methodological suggestions do not mean that an intellectual effort to build legal theory, which includes globalisation, should not be pursued. It means only that without adequate social theory such an effort cannot be fruitful. We should strive to develop such a legal-social theory constellation, and in the meantime draw on whatever preliminary insights contemporary social theorists can provide.
[19] Globalisation was defined by one of the leading contemporary
social theorists, Anthony Giddens, as the
intensification of worldwide social relations which links distant localities in such a way that local happenings are shaped by events occurring many miles away and vice versa. This is a dialectical process because such local happening may move in an obverse direction from the very distanciated relations that shape them. Local transformation is as much a part of globalisation as the lateral extension of social connections across time and space.[4]
[21] For Anthony Giddens,
the relations between local and distant social forms and events became correspondingly ‘stretched’. Globalisation refers essentially to that stretching process, in so far as the modes of connection between different social contexts or regions became networked across the earth's surface as a whole.[5]
[25] There are two different approaches to constitutions. The first one is very narrow and takes into account only institutions prescribed in legal documents. Such an approach is sometimes useful, but not if we wish to discuss the relationship between globalisation and a constitution. The second and broader approach claims that legal constitutions are supposed to be in some relation with the constitution of society. That last term means the structure of the social institutions within society.
[26] Now, if we want to combine one with the other, it is possible to claim that a legal constitution will possess a high level of social legitimacy and will be more stable if there are correlations between it and the social constitution. That does not mean that the legal is just a simple epiphenomenon of the social. There has to be a correlation between the basic institutions of the social and legal constitutions. The fundamental core of the legal institutions should correspond to the fundamental core of the social ones. The problem is that globalisation is a dynamic phenomenon, not a static one. The very essence of globalisation is that there are no social spaces immune from the influence of the global social processes. That does not mean that impersonal global forces work in such a way that they impose uniformisation of social institutions across the globe. Such an approach, which has ‘McDonaldisation’ as a paradigmatic model, is wrong. Global processes influence change and accelerate the pace of change, but change in social institutions is taking place according to local cultural precepts that are themselves also under change.
[27] The change in institutions of constitutional law is always slower than changes in social institutions. There are plenty of constitutional law devices to petrify constitutional institutions. That is the nature of constitutionalism: that norms of constitutional law create a higher order of norms, their function being to preserve and defend those institutions which provide stability and predictability for social and political order. There were always tensions between the legal constitution and institutions of the social constitution. What is new, under the influence of globalisation, is that the tensions are on a much higher level, and predictability is much reduced. The politico-legal institutions of the state are too big for individual citizens and too small to cope with global processes.
[28] What are the consequences of such a situation for legal constitutions? Should the institutions become more flexible? The answers to such questions depend on one’s preferred normative vision. I am not going to spell out my own, but let me state that the biggest problem faced by us is how to combine the necessary level of global coordination with as much local autonomy as possible. There are plenty of answers to such a question, but still it is nearly impossible to provide a constitutional manual.
[29] I
am convinced that we are in the middle of a profound change in constitutionalism
as we know it – to the extent that we
are experiencing a
‘creeping’ constitutional revolution. Everywhere, not only in common
law countries and countries with
established constitutional review, there is a
shift from political to legal means of institutionalisation of social change. In
other
words, more and more decision-making processes are transferred from
democratically elected institutions, such as parliaments, to
the judiciary. Why
is such a process taking place? On the one hand, it is an adaptation by the
institutions of the legal constitutions
to the changes in the social
constitutions. But more importantly, it is a restriction of more and more areas
of social space from
political deliberation. The political class is not willing
to take responsibility – that is true in liberal democracies. At
the same
time, it is impossible to blame the political class for everything, since,
because of the global processes at work, they
are not responsible for everything
that is happening in the territory of the state. How is it possible in such a
situation to make
them accountable? What is required is redefinition of the
public space, but that requires change in the social consciousness, a sort
of
gestalt switch.
[31] The new legal constitutions should possess features such as: a greater level of flexibility; new dimensions of public space; and a balance between rights and public duties, including regional and even global duties of the citizens and the states as well. In Australia, there is potential within the existing Constitution to accommodate some of those requirements and make the real constitution of society closer to the written one. It means that the written Constitution will accommodate new social institutions in the process of creation. Nevertheless, the written Constitution contains limitations to this process due to the nature of constitutionalism itself, but I believe that these limitations will be overcome under the pressure from globalisation exerted through new institutions within Australian society. The process of overcoming these limitations will require a new vision and a new constitutional consciousness based not only on legal expertise but also expertise in the social sciences.
[32] The problem is that this new type of
constitutionalism cannot be built in one state only. It requires an effort of at
least a
group of states. At present, it is impossible to see even a trace of
such a process, apart from some nice dreamers. Having said that,
I do not think
that there is anything wrong with nice dreams. I started this paper with a
discussion of global unhappiness, and now
wish to conclude with the notion of
nice dreams, which are also triggered by globalisation. The constitution of
societies is changing
due to globalisation, and this opens space not only for
unhappiness, but also opportunities for change.
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URL: http://www.austlii.edu.au/au/journals/UNSWLawJl/2001/66.html