Be water, my friend

As to continue my discussion regarding Larry Backer's 4 fundamental characters of global law, the second character is fluidity. 

2. Fluidity

The existence of international law is to streamline and fill in the governance gaps among states. Examples being the European Union, where EU law prevails when there is a conflict of law between EU law and state law, or the creation of United Nations to bind different states with treaties. All these creations are adding rules and control to ensure state stability. Such stability sounds permanent and static. No matter how much obstacles we went through to build a grandiose system that is impeccable, one day that system will eventually be outdated or it needs to be 'updated' and changed into something else. Global lawyers have to accept that the systems are temporary and are willing to let go of such pride. 

A recent example would be COVID-19, where there is no meta-system, not even the World Health Organization, can control such pandemic. When you have a pandemic happening simultaneously everywhere, there is no time to go through the organisational hierarchy to decide what action one should take. Today, the systems around controlling COVID is fractured in different states, cities, or even individuals, everyone is trying a different way to deal with COVID. These are the 'customary' rules that are created and followed by people. For example, children with autism constantly refuse to wear masks in public, governments are already busy dealing with COVID in general, do not have extra man power deal with mask wearing specific to children with autism? Therefore, groups who concern autism would step up and deal with specific issue surrounding autism and COVID,  they are the fractured global grass root networks. According to Donald Schon, when there is an unexpected situation experienced by professionals, they should reflect upon it and conduct quick and dirty 'experiments' to generate new knowledge in order to understand that new experience. This is 'reflection-in-action'. These fractured 'actions' form an 'informal government' and such expectation is made from shared performances. Once the pandemic is over, there is no longer such need in that area and the systems that were built around it should disappear. As global lawyers, we need to allow what we have developed to come and go, it is less about drawing 'fractures' from the permanent systems, but create these 'fractures' to build a temporary systems.

Backer provided another way of understanding fluidity: the space of flows. Where people, information etc  'flows' in the organisational borders ('space').  Such fluidity is the dynamic nature of global law, institutions should not be set and stone, they should allow information outside of the institution to 'flow in' whenever necessary. 

3. Permeability

A membrane needs to be 'permeable' in order to 'permit' water to flow, this is related like the 'space of flows' idea in the last paragraph. In the global law context, institutions need to 'allow' information to 'flow' into the system. However, even though institutions actively forbid information to flow in space, in reality, systems cannot exist in perfect isolations. Especially with advanced technology, information are constantly exchanged within borders and across borders. For example, the Chinese government set up the China's Great Firewall to control data within its physical borders, even though it is against the law to 'climb over' the wall, a lot of people still use virtual private network (VPN) to access 'forbidden' cyberspace. It is impossible for Chinese government cannot block every single one VPN in reality. 

Since institutions cannot fully control the permeability of systems and the degree of permeability does not suggest a better or worse system, they should learn how to work with permeability. In the global law context, states should embrace the discursiveness, the hybridity, the crossing of formal and informal spaces, as well as the flow of ideas among states. States include physical nations as well as social network nations like Facebook and Twitter. 

In addition, such 'flow' is not unidirectional, it is multi-directional and has an 'action and reaction' consequence. Imagine water as information, once water flow from one layer to another, it causes a significant 'ripple' to the environment. In a legal context, Gunther Teubner named the information flow as 'systemic irritants', such 'irritants' does not 'displace' what is already inside the legal system, but it 'triggers' the existing system to reform and change, causing 'knowledge sharing'. As global lawyers, we need to learn how to 'interplay' with these constant 'irritations' and try not to 'control' the flow of water. 

Fluidity and permeability are interconnected, as global lawyers, we need to embrace information that is out of our control and the only way to cope with it is to embrace the unpredictability. Be water, my friend.