Law and No Order

 

Today, people are extremely connected with advanced transportation systems and internet, therefore, legal cases involve far more stakeholders from everywhere around the world. Yet, law education stays pretty much the same for the past decades. How are law graduates prepared to face the complexity in the real world with strictly segregated subjects and jurisdiction specific degree? How are they going to tackle the multinational cases in a global context? 

What is NOT global law? 

Before defining what global law is, it is important to know what global law is not. Most people understand law by its jurisdiction, separated by physical territorial borders and empowered by the states. Most law school subjects are based on specific areas of law, it is seldom that you have a subject that crosses multiple areas of laws. You learn about the law in that country, or even that state only during your study. Law is a very niche and specific discipline.

Law has long been deeply associated with physical boundaries. A lot of times when we talk about global law, we relate it to international law. In the international law context, states are the primary actors and they are separated by physical territory. Such differentiation is direct and easy to understand. While this is a simple way to explain law, it is neglecting all the complexity underneath. As global lawyers, we are not multi-territorial lawyers that practice law in different states, we are the ones that understand law in a multi-disciplinary way. Global law is not only categorised by its difference in legal systems like civil law, common law, nor by areas of law like contract, tort, administrative or constitutional law. Global law is the 'mix and mash' of everything in law in context to create ever-changing new systems. We, as global lawyers, understand global law as a 'system of systems'. 

For example, some researchers find cyber international law as a wild west because internet has no 'physical boundaries'. While I disagree with the them as there are computers which needs physical space to store and needs physical human beings to operate, my focus is on the the reason why lawyers' focus always goes to attribution. I would suggest lawyers to take the chance to review law as a system rather tackling problem one by one as the world is constantly changing. Global lawyers have to leave the comfort zone and starting 'playing around'. Lawyers need to start 'playing seriously'.

What is global law? 

According to Larry Backer, global law is a 'systemisation of anarchy', it is not an extension of current law, it is 'alien' to the foundation of global law. There is no order, no object, no law. It sounds like the exact opposite of what we understand as 'law'. However, Backer stresses that he does not mean total chaos here, but a 'converse of arche'. Global law is not about putting the pieces of puzzles back to where they are suppose to be, it is about building creative forms with legos (basic elements of law). Global law is not two-dimensional and linear, it cannot be 'solved' with the IRAC model, there is no start and no finish. Global law is three-dimensional where anyone can start small, anyone can contribute from a different angle, therefore, forming layers of information and a web of systems. Global law is not just one system, it is multiple systems happening simultaneously and these systems are interrelated forming another even bigger system. These systems and sub-systems are constantly converging and diverging.

Global law is as vague and as complicated as the image above (which makes you dizzy), this is how complex global law system can be, unlike the first puzzle image which is static and linear. Backer reduced such complexity into 4 fundamental characters: fracture, fluidity, permeability and polycentricity.  

1. Fracture

Fracture is self constitution, which means these people come together as a group because they wanted to. It is not about people's nationalities nor physical borders. Instead of asking 'where are you from' or 'what area of law you are currently working at', the questions should be framed in a different way like 'what are your competencies', 'what are your interests'. In addition, it is not about if that person can 'fit in' our circle, but if the group plus this new member can form a new circle. It is the 'deterritorialising', 'reordering' and 'reconfiguring' of the law. Non-state actors come together to form a organisation, as Backer said, we are moving from law-state binary to law-norm binary, where state does not have to be a part of it. When we set the boundaries and rules, we do not need to go through the process of state approval, we can 'self-constitute'. The benefit of such system is the actors within the group best known what the group needs and how to manage the group, grounded in the customary expectations of the members. In addition, these norms do not have to come from the void, they can be based on existing norms, but the new system does not need to adopt the 'old' system as a whole, it 'reassemble', 'reorder', 'reorganise' these 'fractures' into a new system that fits the new group.

Let that sink in a bit and we shall discuss the remaining parts.