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July 3, 2003
Copyright (c) 2003 Indiana University School of Law
Indiana Journal of Global Legal Studies
10 Ind. J. Global Leg. Stud. 383
LENGTH: 31217 words
SYMPOSIUM: GLOBALIZATION AND GOVERNANCE: THE PROSPECTS FOR DEMOCRACY: Part III:
Globalization and Empire: A Theory of Imperial Law: A Study on U.S. Hegemony
and the Latin Resistance
* Alfred and Hanna Fromm Professor of International and Comparative Law, U.C.
Hastings; Professore Ordinario di Diritto Civile, Universita di Torino. J.D.
University of Turin (1983); LLM, Boalt Hall U.C. Berkeley (1989). This article
has been produced to be discussed at the Indiana Global Law Symposium (April 5
2002) and at the Harvard Critical Globalization Conference (April 12 and 13,
2002). I have delivered this article at a variety of workshops and conferences
including the Conference on Americanization of legal thought held in Paris
(Archives de Philosophie du Droit, June 2000); the Max Plank Institute
(Hamburg, Germany May 2002); Stanford University (October 2001), the Department
of Anthropology of U.C. Berkeley (September 2001) and the University of
Florence (April 2002). I wish to thank Professors Alfred Aman, for inviting me
at Indiana; Professor David Kennedy for inviting me at Harvard; Professor
Jurgen Basedow for the Max Plank; Professor Horatia Muir Watt for Paris;
Professor Vittoria Barsotti for Florence. I wish also to specially thank, for
comments, reactions and encouragement on early versions: Duncan kennedy, George
Fletcher, Vincenzo Varano, Mauro Bussani, Elisabetta Grande, Hans Baade, Anna
di Robilant, Laura Nader, Diego Lopez Medina, James Gordley, Mariella Pandolfi,
and David Trubeck.
... This essay attempts to develop a theory of imperial law that is able to
explain post-Cold War changes in the general process of Americanization in
legal thinking. ... Global legitimacy of intellectual property is rooted in the
notion that individual creativity deserves a prize and that exclusive property
rights constitute such a prize. ... It is important to discuss examples of
Americanization (and of counter-hegemony) at a deep fundamental level of the
legal system. ... Imperial law, as short of being a mode of governance in need
of legitimacy as any other, becomes the technological backbone of the global
market--something to be approached apolitically, to be described and modified
only by technological practices. ... While it would a gross exaggeration to
claim that law and economics today enjoys the leading role as an approach to
legal scholarship in European countries, we can nevertheless see that it is the
main intellectual vehicle used by American legal consciousness to diffuse
itself and to impose its hegemony in the center and periphery of the world. ...
Confronted with the Latin resistance, imperial law displays an unprecedented
degree of spectacular repression. ... It is the final assault of imperial law
on all such institutions of the nation-state that do not fit its profile
favoring economic hegemony and global corporate governance. ...
This essay attempts to develop a theory of imperial law that is able to explain
post-Cold War changes in the general process of Americanization in legal
thinking. My claim is that
"imperial law" is now a dominant layer of world-wide legal systems.
n1 Imperial law is produced, in the interest of international capital, by a
variety of both public and private institutions, all sharing a gap in
legitimacy, sometimes called the
"democratic deficit." Imperial law is shaped by a spectacular process of exaggeration, aimed at
building consent for the purpose of hegemonic domination. Imperial law
subordinates local legal arrangements world-wide, reproducing on the global
scale the same phenomenon of legal dualism that thus far has characterized the
law of developing countries. Predatory economic globalization is the vehicle,
the all-mighty ally, and the beneficiary of imperial law. Ironically, despite
its absolute lack of democratic legitimacy, imperial law imposes as a natural
necessity, by means of discursive practices branded
"democracy and the rule of law," a reactive legal philosophy that outlaws
[*384] redistribution of wealth based on social solidarity.
n2 At the core of imperial law there is U.S. law, as transformed and adapted
after the Reagan-Thatcher revolution, in the process of infiltrating the huge
periphery left open after the end of the Cold War. A study of imperial law
requires a careful discussion of the factors of penetration of U.S. legal
consciousness world-wide, as well as a careful distinction between the context
of production and the context of reception
n3 of the variety of institutional arrangements that make imperial law. Factors
of resistance need to be fully appreciated as well.
I. AMERICAN LAW: FROM LEADERSHIP TO DOMINANCE
The years following the Second World War have shown a dramatic change in the
pattern of world hegemony in the law. Leading legal ideas, once produced in
Continental Civilian Europe and exported through the periphery of the world,
are now for the first time produced in a common law jurisdiction: the United
n4 There is little question that the present world dominance of the United States
has been economic, military, and political first, and legal only in a more
recent moment, so that a ready explanation of legal hegemony can be found with
a simple Marxist explanation of law as a superstructure of the economy.
n5 Nevertheless, the question of the relationship between legal, political, and
economic hegemony is not likely to be correctly addressed within a
n6 Ultimately, addressing this question is a very important area of
[*385] basic jurisprudential research because it reveals some general aspects about
the nature of law as a device of global governance.
Observing historical patterns of legal hegemony allows us to critique the
distinction between two main patterns of governance through the law (and of
n7 Scholars of legal transplants have traditionally distinguished two patterns.
The first is law as dominance without hegemony, in which the legal system is
ultimately a coercive apparatus asserting political and economic power without
consent. This area of inquiry and this model have been used to explain the
relationship between the legal system of the motherland and that of the
colonies within imperialistic colonial enterprises. The opposing pattern,
telling a story of consensual voluntary reception by an admiring periphery of
legal models developed and provided for at the center, is usually considered
the most important pattern of legal transplants. It is described by stressing
on the idea of consent within a notion of
Little effort is necessary to challenge the sufficiency of this basic taxonomy
in introducing legal transplants. Law is a detailed and complex machinery of
social control that cannot function with any degree of effectiveness without
some cooperation from a variety of individuals staffing legal institutions.
These individuals usually consist of a professional elite which either already
exists or is created by the hegemonic power. Such an elite provides the degree
of consent to the reception of foreign legal ideas that is necessary for any
legal transplant to occur. Hence, the distinction between imperialistic and
non-imperialistic transplants is a matter only of degree and not of structure.
In order to understand the nature of present legal hegemony, it is necessary to
capture the way in which the law functions to build a degree of consent to the
present pattern of international economic and political dominance.
In this essay I suggest that a fundamental cultural construct of presumed
consent is the rhetoric of democracy and the rule of law utilized by the
imperial model of governance,
n10 triumphant worldwide together with the neo-American
[*386] model of capitalism developed by the Reagan and Thatcher revolution early in
the 1980s. I argue that the last twenty years have produced the triumph in
global governance of reactive, politically irresponsible institutions, such as
the courts of law, over proactive politically accountable institutions such as
direct administrative apparatuses of the State.
This essay attempts to open a radical revision of some accepted modes of
thought about the law as they appear today, at what has been called
"the end of history."
n12 Its aim is to discuss some ways in which global legality has been created in
the present stage of world-wide legal development. It will show how democracy
and the rule of law, in the present legal landscape, are just another rhetoric
of legitimization of a given international dynamic of power. It will also
denounce the present unconscious state in which the law is produced and
developed by professional
"consent building" elites. The consequences of such unconsciousness are creating a legal
landscape in which the law is
"naturally" giving up its role of constraining opportunistic behavior of market actors.
This process results in the development of faked rules and institutions that
are functional to the interests of the great capital and that dramatically
enlarge inequality within society. I predict that such a legal environment is
unable to avoid tragic results on a global scale such as those outlined in the
well-known parable of the tragedy of the commons.
My object of observation is a legal landscape in transition. I wish to analyze
this path of transition from one political setting (the local state) to another
political setting (world governance) in which American-framed reactive
institutions are asserting themselves as legitimate and legitimating governing
bodies, which I call imperial law. Imperial law is the product of a renowned
alliance between state and economic institutions, a cooperative game in which a
very limited number of powerful players are at play.
n14 While in the ages of colonialism such political battles for international
hegemony were mostly carried on with an open use of force and political
violence (in such a way that final extensive conflict between
[*387] superpowers was unavoidable), in the age of globalization and of economic
Empire political violence has been transformed into legal violence.
II. DEVELOPING OUR TOOLS
A. Hegemony and Counter-Hegemony: From Gramsci to the Empire
My study of legal imperialism builds on Antonio Gramsci's notion of hegemony.
n15 Gramsci defines hegemony as power reached by a combination of force and
consent. Power cannot be reached only by brute force; it needs to be imposed by
individuals that voluntarily accept government. Building on this suggestion,
Louis Althusser has suggested that force is the province of the repressive
apparatuses of the state like the army and the police, while consent is gained
by means of what he called the ideological apparatuses of the state like
schools, churches, or media.
n16 Such ideological apparatuses make hegemony more acceptable and at the same
time make ideology a cross-class concept, thus going beyond the narrow Marxist
idea of ideology as a class-specific device.
n17 Hegemony is therefore reached at least in part by a diffusion of power (needed
in order to gain consensus) between a plurality of individuals. Such diffusion
of power becomes a key concept in Michel Foucault's refutation of the idea of
hegemony as a top-down imposition of power. Through his work, Foucault
conceived of power as a relational position inherent in the very posture of
every individual in society which, in turn, is determined by the so-called
Diffusion of power carries as a consequence the birth of counter-hegemony,
itself a powerful tool to defeat top-down attempts of hegemony. French critical
thinker Gui Debord focuses on the impact of media and new communicative
[*388] technology on human behavior and develops the notion of the individual as
spectator and consumer within what he defines as the
"spectacle society." Maintaining the Marxist tradition of focusing on the actual means of
production that determine the organization of society, Debord demonstrates that
"the spectacle" is not a marginal aspect of the post-modern society. Rather, it determines its
very economic structure, capable of transforming the exploited proletariat into
a much courted
n19 The proletariat is not considered only as labor force. In a notion that is
developed also by French sociologist Baudrillard, the consumer is a worker who
does not know to work.
n20 Understanding the
"spectacle" allows a better understanding of present-day American hegemony.
The ways in which patterns of law have been historically exported can be
captured within a variety of models. A first model is direct
imperialistic/colonial rule, or imposition of legal patterns by military force,
as it happened during times of military conquest (i.e. the Napoleonic Code
imposed in Belgium; McArthur's reforms in post-World War II Japan, and so
forth). This notion of imposition by force needs to be qualified, by taking
into the account the structural need for institutional staffing and for
cooperation of institutional actors to make a system work.
A second model can be described as imposition by bargaining, in the sense that
acceptance of a legal model is part of a subtle blackmail.
n22 Targeted countries are persuaded to change the law according to Western
standards in order to get access to the international market and to remain
economically viable. History offers examples of this model in China, Japan, and
Egypt early in the last century, and today, this is the most important way in
which the World Bank,
[*389] International Monetary Fund, World Trade Organization, and European Union
operate through the developing and former socialist world.
A third model, constructed as fully consensual, has been presented as diffusion
by prestige, focusing on a deliberate process of institutional admiration that
leads to the reception of law.
n23 My claim is that the process of Americanization in the last few years can only
be understood within a clear perception that ideological apparatuses are at
play, producing spectacular propaganda that allows the produced legal
consciousness to circulate.
These preliminary remarks show some shortcomings of the comparative discussions
of legal transplants that proceed outside of the analytical framework of
hegemony and counter-hegemony. Indeed, the hegemony/counter-hegemony framework
is crucial to understanding that force can never by itself be sufficient; it
always needs a more or less extensive degree of institutional consent to
operate. What is even more important is that the framework allows us to
perceive the naively anthropomorphic nature of most traditional analyses. Legal
transplants cannot be seen as happening as the result of the choice of one mind
that freely or coactively receives the produced model. Both in the phase of
production and in the phase of reception, legal transplants are a lively
dialectic between consent and dissent, between hegemonic and counter-hegemonic
forces, between mainstream and critical approaches. In other words, dominant
and dominated positions have to be considered in the picture because they allow
an understanding of the high complexity of the picture.
B. Reactive Institutions as the Fundamental Structure of U.S. Law
In previous papers, I have outlined the fundamental structure behind what I
"the rule of professional law" and the historical reasons for current American intellectual leadership in the
world's legal landscape.
n24 The fundamental structure of American law has unfolded to become a politically
legitimized system in which straight political power is counterbalanced by a
double set of professional (counter-majoritarian) checks. Such a system is the
[*390] imports from Europe digested and made spectacular by way of
"exaggeration" in the United States.
By the early part of the last century (a century significantly labeled
"the American century"),
n25 U.S. law had already received from Europe, and digested in a genuinely
original way, the fundamental components of its legal structure. The English
common law tradition has transmitted to the former colony the ideal of judges
as oracles of the law and of a strong, independent judiciary as the
institutional framework in which judges can perform their role of guardians of
individual rights. American law has developed this legacy and
"exaggerated" it to the point of inventing constitutional adjudication. Judges are not only
the oracles of the law and the leaders of the professional legal system; they
also have the power to declare, in the process of adjudication, political
decisionmaking as unconstitutional.
n26 Because of such outstanding extension of judicial power within American law,
the belief, already noticed by Tocqueville,
n27 that any political problem can sooner or later be decided by a court of law
has been carried to its symbolic extreme in the Nuremberg Trials, and possibly
to its very limit in
Bush v. Gore.
The civil law tradition has also transmitted some fundamental modes of thought
that U.S. law has been busy expanding and exaggerating through the nineteenth
and twentieth centuries. France has conveyed to the United States the idea of
universal individual rights. These
"negative" rights of first generation have been enshrined in the U.S. Constitution,
influential as they were on the majority of
[*391] the founding fathers.
n29 Not only has this universalistic ideal been carried to the extreme, as
witnessed among other things by notions of universal jurisdiction of U.S.
courts in the vindication of such rights,
n30 but negative rights, in the absence of thick notions of sovereignty and
statehood developed by the Jacobeans, became a genuine limit to the
redistributive activity of the American state. Notions of freedom from
government intrusion were by no means limited to judicial lawmaking in the
Lochner era. A strong limit to any proactive activity of government, except in areas
such as defense, can be seen as the result of French-inspired notions of
Also, Germany has transmitted to the United States one of its fundamental
present-day characteristics: the presence of strong, independent academic
institutions as another source of professional check on the political process.
It was only because the law was considered a science that it was natural to
argue for its teaching in university contexts. Otherwise it could well have
remained a practical business, as it continued to be in England until well
after the Victorian age. American law schools (professional schools staffed
with faculty that regard themselves as academic scholars) are the only ones in
the world that offer basic legal education at the graduate school level.
Consequently, and paradoxically for a system based on
"professional schooling," the average American lawyer is exposed to more years of academic training that
any other colleague in the world. Moreover, because of this further
exaggeration as compared to academic undergraduate legal education in Europe,
American academia can well be seen today as the global lawyer's graduate school
in the sense that ambitious lawyers worldwide complete their undergraduate
legal education in the United States.
There is another fundamental structure of U.S. law that, in my opinion, makes
it better suited to the framework of the global market: its high degree of
decentralization. This is possibly the most original aspect of the fundamental
structure of U.S. law. No other legal system in the world has developed a
full-fledged federal judicial system as complete and sophisticated as the
United States has. The co-existence of a large number of federal and state
courts made issues of jurisdiction and choice of law the primary concern of the
American legal profession. These are the same issues that are on the table of
[*392] approaching global problems. American lawyers already enjoy a legal culture
and discourse that is broader than jurisdictional limits. In this scenario, the
annexing of one more jurisdiction, wherever located, does not particularly
change the U.S. lawyer's way of reasoning.
The very structure of the American judicial process, moreover, decentralizes
power and activity. A large variety of activities within litigation which are
"official" in European legal systems, such as service of process, discovery, and
questioning of witnesses, are already private matters in American law.
n32 This powerful combination of adaptive forces makes the structure of American
law sufficiently familiar so as not to be excessively feared,
n33 yet sufficiently ambiguous to be successful in the international legal
Another crucial aspect of American hegemony is the equation between democracy
and elections. The majority rule principle, quite uncritically embraced in the
United States, appears natural and obvious as long as we compare it to its
absurd opposite, that of the minority rule. But if we think to how numerous and
various can be the means to give to a group a unitary will we should ask
whether Sumner Maine was not right when claiming that the majority rule is the
most artificial between all those available.
n35 The majority rule as expressed by elections has institutionalized in the
United States the notion of a market for votes that carries as a structural
consequence a high degree of spectacular selection of leadership, mostly
determined by media control and availability of extensive economic means.
It is important to the present analysis to observe the way in which these basic
European institutional factors have been carried to the extreme and thus
"exaggerated" in the United States. Judges develop as full-fledged supervisors of the direct
political process. Individual rights develop an unprecedented universal
jurisdictional reach. Lawyers develop highly technocratic skills of social
engineering. Elections, along with media power, defeat political parties as
[*393] laboratories of political consent and as agencies leading to the reduction of
As shown in the previous section, U.S. law has been able to become the
"extreme West" of the Western legal tradition
n36 whose fundamental notions are plainly and structurally incompatible with
alternative ideas such as, for example,
"Socialist legality" or
"Islamic jurisprudence." Countries which embrace or have embraced these radically alternative views
have always been located at the
"periphery" of the free world. Interestingly, even those countries such as European
democracies, traditionally located at the center, have been gradually pushed to
the periphery in the building process of global governance by a constant
erosion of the activist philosophies of their sovereign states. The less than
full development of decentralized reactive institutions has been singled out as
a problematic factor, even in the European context. The new periphery, just as
much as the traditional one, maintains certain legal factors that are an
irritant for an American-inspired global legal consciousness.
From the very aftermath of World War II, it became quite apparent that the
notion of sovereignty and statehood developed in the civil law was exposed to a
strong structural critique. The notion, enshrined in the Hegelian philosophical
tradition, that the State was an organ pursuing its own sovereign interest,
ontologically different and occasionally incompatible with the aggregate of the
individual rights of its subjects, was in many quarters made accountable for
the trashing of the rule of law in fascist Europe. An alternative vision of
sovereignty was found in the notion that the State was nothing more than
"the government in office" (typical of the pragmatic Anglo-American tradition), pursuing an interest that
had to coincide with the aggregate of individuals' interests, and whose
activity was to be limited to this function by technocratic checks.
The roots were established for the
"naturalization" of the American way, and for its fundamental challenge to the hierarchical
relationship between the political process and free (market) activity. Such
process of naturalization of the institutional setting of the free world was
started in America in 1952 by President Eisenhower's conservative political
platform that defeated President Truman's Fair Deal. Reinforced through the
Cold War as a polemic towards socialism, the suspicion of activist
redistributive policies and of government intervention in matters other than
defense constantly controlled American politics and, through its influence, the
present posture of the international financial institutions.
[*394] Local American scholarly evolutions made the prestige of U.S. law felt by
legal professionals worldwide, so that the intellectual leadership of American
law is now an undisputable fact. The years of the Cold War and the demise of
western legality that has characterized most of the communist regimes in the
U.S.S.R. orbit of influence have confirmed the perceived benefits of the three
fundamental symbols of the American rule of law: spectacular elections (a sort
of advertising spot for democracy), independent judiciary (with highly
spectacular interventions in U.S. political life), and free and creative
academic critique of the political and of the judicial process. None of these
tenets was characteristic of the Soviet bloc, so the imposition of such
fundamental characteristics became the recipe for change in the aftermath of
the fall of the Soviet Republic.
III. HEGEMONY AND THE CONSTRUCTION OF THE FOE: THE REPRESSIVE INSTITUTION OF
The last ten years of the last century have been crucial to the refinement of
imperialistic and hegemonic aspects of American law. Nobody has put it more
clearly, though moderately, than leading international lawyer Richard Falk:
The logic of hegemonic authority extends beyond the implications of unequal
power and influence to encompass the rather amorphous, yet significant, role of
"global leadership." Such a hegemonic role in an era of moderated international conflict is
premised on military power. But also crucially important is a normative
reputation as a generally benevolent political actor and a provider of order
beneficial for the global public good, not just for the national interests of
The very same rhetoric of freedom has guided U.S. international interventions
from World War II to the present ideological construction of the Islamic world
(represented by Komeini, Saddam, and the Taliban) as the living denial of the
kind of universal freedom, based on gender equality and universal human rights,
that is inextricably connected with the neo-liberal capitalist model of
[*395] The nineties were the decade in which U.S. power (and consequently, law)
turned from leadership to hegemony. Most western communist and socialist
parties have started a major self-critique, and leftist intellectuals'
discovery of the virtues of the market has provided some quite extreme
n39 The end of the Cold War has been depicted by many commentators as an
endogenous phenomenon within the socialist world. The highly proactive
political apparatus of the soviet
"concentrated spectacle," to use Debord's notion,
n40 simply could not resist processes of internal corruption accelerated by the
sense of freedom and by dynamics of opportunism that were precluded from any
socially beneficial spillover effect. This is, however, a very simplistic
vision of the fall of the Soviet Empire. A variety of other factors must be
considered too: exogenous factors such as technological competition (e.g. the
Star Wars system of the Reagan administration) that created an unbearable
economic pressure for the Socialist State,
n41 and the undisputable spectacular appeal of the consumer's society, made
accessible to would-be consumers by enhanced media reach. What is important to
point out is that technological evolutions were the protagonists of most of
these and other relevant events. And military as well as media technology
became the creed of the next step in the development of global ideology: the
sense that technology can defeat demography. This notion has determined, among
other things, the politics and ideology of immigration law through the West.
"enemy number one" defeated, it became almost immediately apparent that socialism was not the
only radically incompatible alternative to the Western institutional setting.
American foreign policy did not need to change much, since
[*396] its technological presence
n43 was still required by its European allies, whose internal political landscape
constantly and incrementally turned to the right.
n44 By the early nineties, the socialists had been defeated in France, Italy,
Spain, and Greece. In Scandinavian countries, the social-democratic experiment
was facing a tremendous and perhaps irreversible crisis. In Russia, the
communists were forced to accept a spectacular electoral confrontation in which
they would have no chance to win, given the technical skills of and the foreign
aid to the opposite front.
n45 Notions of
"third way" or
"New Labour" witnessed a dramatic convergence of the European political landscape with the
American counterpart. In the United States, at least since the
"Great Society," the differential in class representation between the Democrats and the
Republicans was blurred. President Clinton and Prime Minister Blair have been
the icons of the political establishment and the long wave of the conservative
revolution well beyond the political platform of the Republicans and the Tories.
A culture of exclusion and of assertion characterized Western domestic and
foreign policy in the United States and, following its lead, in Europe. Zero
tolerance for illegal immigration is now the common slogan of conservative
governments and of their institutional oppositions throughout the West.
n46 Meanwhile, in the international arena, NATO could incrementally and
dramatically change its nature. At the recent NATO summit with President Putin,
the basis was set for a new strategic and offensive alliance for the further
expansion of the free global market. NATO leaders and their former foes now
share a new common enemy and a new common agenda. Within the notion of
fundamentalist Islamic-originated terrorist activity, there is space for such
different phenomena as the Chechenia resistance, the Middle Eastern war, and of
course, the War on Terror so far carried out against Afghanistan, and
threatened against Iraq, Iran, Sudan, Yemen, and Somalia.
NATO strikes in Bosnia, the Gulf War (Desert Storm), and Somalia (the Restore
Hope mission) and, more recently, Enduring Freedom in Afghanistan
[*397] have been the most visible recent instances in which the repressive
institutions of the global society have had a chance to prove their strengths.
Thousands of innocent people were killed while public opinion and media
propaganda focused on the redress of international human rights that the
strikes were guaranteeing.
n47 Some international law scholars now define the Bosnia NATO strikes as illegal.
n48 The Somali experience shows that areas that were not reached by the
International effort of the U.N. Operation in Somalia (UNOSOM) are today well
ahead of the others in the pacification process.
n49 The George W. Bush administration has introduced itself to the world by a
similar campaign to enforce international law. The more recent
"War on Terror" has confirmed the early attitude of the incumbent U.S. administration.
Interestingly, all these actions have been carried on in contexts characterized
by a hegemony of political law and/or traditional law within the deep
characteristics of the legal system.
n50 All such interventions have been targeted towards societies in which
professional law had always remained either absent or very superficial and in
which democracy and the rule of law, as products of Western
civilization/colonization, could be seen as deeply foreign to local conditions.
Islamic law has been able to claim a thorough degree of legitimacy by means of
circuits of legitimization that are typical of non-western societies.
n51 In former Yugoslavia, the traditional gate between Islam and Christianity,
effective centralized secular institutions were established in Tito's time.
n52 Nevertheless, during the communist era, legitimacy was never based on
elections, and the Western notion of rule of law was substituted by a kind of
socialist legality. The circuits of power legitimacy in former Yugoslavia were
to be found more in
[*398] notions of military leadership than otherwise. The rise of Milosevic to power
and the Pan-Serbian dream cannot be explained much differently than as an
episode of skillful charismatic leadership.
Somalia and Afghanistan have much in common, in addition to their strategic
geographic position around the oil area. They are both traditionally
decentralized societies and have both experienced processes of more thorough
social penetration of Islam in recent times. They are both internally divided
in ethnic polarization, but at the same time, both have strong national
identities. Both countries are very far from any idea of legitimacy based on
majority rule. They both lack a Westernized legal elite strong enough to be an
effective professional competitor to traditional and political legitimization.
The principle of group unanimity in legitimate rulemaking and of war as a
legitimating factor of leadership are strong and fierce factors of resistance
towards western notions of democracy, rule of law and individual human rights.
Not much needs to be said of Iraq to show the fundamental incompatibility of
its social structure with Western notions of legality and Western institutions.
Iraq falls straight within notions of leadership and legitimacy that are very
common in the area and that are deeply rooted (although at times much
challenged) in Islam. Once again, arguing for Western democracy and the rule of
law in a centralized Islamic society is only a display of Western-centric
The structure of power and the deep bases of legitimacy of the legal systems in
these countries targeted by operations of war are shared by a majority of the
countries on Earth. It is no excess of cultural relativism to observe this
simple fact. Nor is it foreign to Western notions of equality of treatment
under the law to reflect on the one-sided way in which international law is
n54 In the global world, the repressive institutions are the same as they have
always been--the power of weapons is the rule.
n55 This is not, of course, the place to discuss and catalogue the many occasions
on which repressive international institutions have policed and enforced the
new world order, born after World War II and accomplished after the symbolic
fall of the Berlin Wall.
n56 For the purposes of this
[*399] discussion, we can assume that force, in the form of international military
enterprises under U.S. leadership, is still the most important instrument for
imposing the hegemony of Western values.
n57 Further, we can assume that much of the hegemonic position of the United
States has been achieved by developing and accomplishing unchallenged primacy
of physical strengths.
Much more interesting, for our purpose, is to reflect on the ways in which
political consent is reached around such use of force. Loyalty seems mandatory
in the new global order.
n59 The discursive practices of the dominant realist international law culture are
to be considered at least in part responsible for this phenomenon.
IV. INTERNATIONAL LAW AS AN IDEOLOGICAL APPARATUS OF GLOBAL GOVERNANCE
There is no doubt that international law has offered a rhetoric capable of
justifying the use of force by the repressive apparatuses of global governance,
and that therefore it has played the role of an ideological institution
responsible for the idea that violence towards innocent people can be
"legal," and that a war of destruction can be
The rhetorical device used in the process of repressing deviance has been a
genuinely legal concept, that of
"international human rights."
n62 Indeed, a doctrine of limited sovereignty in the interest of international
human rights has threatened the traditional nature of international law as a
n63 based on territoriality, and has advocated the need for centralization in
order to make international law more similar to systems of national law. The
International Criminal Court is the most advanced point of this shift. Ad hoc
courts, such as
[*400] the one presently used against former Yugoslavian president Slobodan
Milosevic, are the product of an even more open use of international law as an
ex post facto legitimating factor of war.
Today we believe that international law is not natural but positive law, whose
fundamental sources are treaties and customs. Tomorrow, we might believe that
international law is a worldwide legal system grounded in uniformity and in
commonly shared ideals of law and order.
n65 International codes, international courts and international jails are already
claiming to be generally recognized and established. Many commentators already
approach international politics as if such an international centralized legal
system were in place. With such a system in place (assuming that it is in
place), the transformation of war into police power follows as a matter of
course. Hence sovereignty can be routinely addressed as deviance from a
standard of legality grounded in U.S.-constructed international human rights.
It is interesting to observe that this process in international law is just the
opposite of the general trend in jurisprudence. Scholars are today observing
the triumph of pluralism and decentralization as a consequence of the failures
of the legal monism advocated by state-centric positivism. A process of
de-positivization in jurisprudence is very clear.
n67 This can be seen as a cultural delay of international law, difficult to
overcome but indeed in the process of being addressed by the best scholarship
in the field.
But the tool used to gain consensus, the doctrine of international human
rights, is indeed very powerful,
n69 and has initiated the process of transformation of the very conception of
international law developed after the birth of the modern
[*401] nation-state. Such flourishing is however problematic because it provides a
selective justification for intervention in the internal political business of
all states that are not culturally aligned with Western law.
Neo-colonial practices in the Third World are to a great extent originated by
the evolution of advanced capitalism in the United States (what I have referred
to as the neo-American model) and by its diffusion at the periphery within a
reactive philosophy of governance that, outside of effective
"reactive" institutions such as the one developed in the United States, paves the way to
exploitive opportunistic behavior.
n71 Of course, it would be thoroughly inaccurate to see colonialism as a vehicle
of Americanization. Only post-colonialism can be fairly seen as such.
n72 The unfolding of U.S. rule has indeed been a phenomenon that is better
captured by the notion of imperialism than by that of outright colonialism.
To begin with, imperialism is not limited as a relationship between
"developing," or between a colonizing nation-state and colonized people kept under foreign
rule. An imperialistic desire attempts the global imposition of its values and
fundamental structures of government and modes of thought worldwide. In this
sense, it is clear that communism has been an imperialistic attempt aiming at
final worldwide success. Imperialism requires an
"imperial ideal," a stronger ideological apparatus that can be reached only by means of strong
n74 The ideals of a global market, of international human rights, of freedom
throughout the world, and most notably of the
"rule of law" perform this ideological role.
n75 Imperialism does not necessarily need to be a conscious effort,
n76 nor must it spell out an
[*402] imperialistic doctrine, prescribing steps towards a final condition of
The recent transformation of international law from a decentralized system of
foreign sovereigns to a progressively more centralized legal system governed by
professional elites staffing (international) courts of law is a more or less
conscious reproduction of the reactive philosophy of the U.S. government by
courts. As such, it is reproducing on the world scale a professional legal
ideology of neutrality, democracy, and rule of law, granting legitimacy to the
worldwide exercise of the United States's unprecedented political strength.
Just as U.S. domestic doctrines of separation of powers, political questions,
and sovereign immunity allow the U.S. government a quite extended and unnoticed
degree of unrestricted power,
n78 similarly an international law governed by courts of law (on the Nuremberg
model), rather than by negotiation between decentralized sovereign States,
should produce the facade of legitimacy for the exercise of worldwide hegemony.
Of course, the fear of counter-hegemonic use of such an international
centralized legal system explains the reluctance of the U.S. government to
support the International Criminal Court.
n79 The moment is ripe for introducing, within the legal field of international
law, the notion of counter-hegemony as used in this article.
V. INTERNATIONAL INTELLECTUAL PROPERTY AND COUNTER-HEGEMONY
In addition to politics (and economics), technology is also a major source of
n80 The nineties were also opened by the invention of the internet www protocol.
It is worth noting, at least incidentally, that the internet originated from
the need for speedy and secure communication of data to be used for military
purposes during the Cold War years. It is therefore easy for conservative
ideology to appraise it as a beneficial spillover of military research,
[*403] and as convincing evidence of the need for allocation of yet more resources to
the repressive apparatuses of the global governance, such as
"star wars" projects.
It is enough to browse the internet once to see its American cultural
imprinting. The quantitative and qualitative advantage of U.S.-based English
language sites is just another piece of evidence of the very strong cultural
hegemony of the United States.
n82 The so-called
"digital divide" is the virtual epiphany of the appalling growth of the difference between rich
and poor countries, created and structured by another ideological apparatus of
global governance: intellectual property.
n83 Information is today the most important source of wealth. Intellectual
property, rooted in an extreme Western naturalistic notion of property law, is
incompatible with fundamental communitarian values of non-Western societies.
Western intellectual property is expanded worldwide through the internet and
through the Trade Related aspects of Intellectual Property Rights (TRIPs). It
formalizes the disparity of wealth and power that technology has been able to
n84 The non-territorial nature of intellectual property, as symbolized by the
internet and the claim of universality and of objectivity of its justification,
is producing more institutional change.
Global legitimacy of intellectual property is rooted in the notion that
individual creativity deserves a prize and that exclusive property rights
constitute such a prize. We are back to Locke and to natural law justifications
of individualistic ownership. Nobody would farm without the guarantee of
exclusive property of the outcome of his/her labor. Similarly, nobody would
have incentives to create without intellectual property granting a monopoly on
his/her creativity. Nobody would genetically modify seeds with no guarantee
that the legal system would help to impose such technology on farmers
worldwide, forcing them to abandon communitarian practices of seed sharing and
n85 Of course, such eighteenth-century rhetoric, reinforced today by simplistic
neoclassical legal and economic models such as those used in mainstream law and
n86 denies notions of alienation and exploitation, and the simple fact that
intellectual property rights freeze the status quo rather than promoting
innovation and change.
The general universalistic individual-centered philosophy propagated by
intellectual property and by the institutions created to enforce it worldwide
(World Intellectual Property Organization, TRIPs, and so forth)
n88 serves the purpose of redefining territorial ideas of sovereignty to be more
functional to the needs of the Empire and of the big corporate actors.
n89 The hegemonic aspects of the intellectual property revolution are easy to
perceive, both in their component of power (economic and political pressures to
force non-Western countries to accept international intellectual property
protection agreements) and in their ideological component, indispensable to
reaching agreement (intellectual property justified as a universal natural law
conception). Of course, as in all institutions of hegemony, intellectual
property is also one-sided, not only in its content but also in its actual use.
Suffice it to compare the generic anti-AIDS drugs saga in South Africa (where
as many people die of AIDS every week as the victims of the September 11th
events) with the treatment and the respect that the intellectual property of
the German-based Bayer pharmaceutical company has been granted by the Bush
administration in the aftermath of the Anthrax crisis in the fall of 2001.
In shifting from hegemony to counter-hegemony, one finds more interesting
lessons. It is indeed by the use of the internet that the counter-hegemonic
[*405] potential of the challenge to intellectual property becomes apparent. Gui
Debord and the Situationist Internationale movement deserve to be credited with
yet another tremendous power of prediction. The author of
The Society of the Spectacle and Situationist Internationale have carried on a major attack on the
legitimacy of intellectual property rights, based on notions of creativity as
leisure and self-fulfillment. Debord has constructed intellectual property as
the very fundamental economic and political institution of the spectacle:
"The language of the spectacle is made of the signs of the dominating
production. Such signs are at the same time the ultimate aim of such production."
"As indispensable decoration of the objects that are actually produced, as
general claim of the rationality of the system, as leading economic sector that
directly produces an increasing variety of objects-images, the spectacle is the
main production of present society."
n92 In Debord's theory the
"spectacle has created a monopoly on what appears."
n93 By annulling historical knowledge and developing explanations based on
structuralism as a sort of science of the necessity, it has incorporated in
itself even the most radical critique.
n94 Critique becomes establishment, false becomes true. Critical thinking, in
order to wake society up from the passive state in which the spectacle keeps
it, has only one way to act--subvert the domain of the original and of the
"in the world really subverted the truth is a moment of the false."
Such liberating, subversive theory has to be accompanied by a variety of
practices. In the domain of culture and intellectual creativity, the main
revolutionary practice is called
detournement. The essence of such practice is the denial and radical refutation of any form
of intellectual property:
"Ideas improve. The sense of words participated in such improvement. Plagiarism
is necessary. Progress requires it. Plagiarism siezes the phrase of an author,
uses its expressions, cancels a false idea, substitutes it with a true one . .
detournement is the opposite of the citation, of the theoretical authority which is always
falsified for the very fact of having been cited. . . ."
As early as 1967, anticipating and radicalizing many of the post-modernist
themes such as hybridization and utilization out of the context of the legacy
n97 Gui Debord had developed a theoretical and political challenge of intellectual
property as a political institution of the global society. Debord's critique of
the political functions of intellectual property law precedes most of the
counter-hegemonic themes of the so-called
"copyleft" movement by more than thirty years.
The idea of
"copyleft," like Debord's
detournemet, plays with words. Left is opposed to right as a political signal,
n98 but left also means abandoned, dropped, given--conveying the sense of free
relinquishment and spread of ideas as opposed to copyrighted materials severely
and fiercely defended as a property right by the institutions of the global
society. The copyleft movement can certainly be perceived as a
counter-hegemonic trend, made possible by those very same technological
innovations (mainly the internet) that function as a powerful hegemonic force
behind Western (and particularly U.S., as the United States alone owns
fifty-one percent of world's patents) capitalism. The idea of
"open source" dates back to 1984 when the M.I.T. informatics scholar Richard Stallman
"Free Software Foundation" in order to facilitate free access to the code sources that keep the secrets
behind the functioning of software. Many of the political and social concerns
of copyleft were already being discussed as early as 1975 within the mythical
"Homebrew Club," a group of socially concerned young scholars that at the dawn of the computer
era were already worried about the fate of technological innovation in the
hands of the big corporate business. Nevertheless, it was only in the early
1990s that the Finnish student Linus Thovalds launched Linux, the most
successful and threatening concurrent of Windows, freely available on the
Internet and used today by some eighteen million computers in the world. Linux,
constantly and openly improved by its users, who reciprocate free use with
suggestions for improvement and problem solving, is based on a clearly anti-copyright philosophy and can be seen
[*407] as a living demonstration of the ideological nature of pro-copyright rhetoric of innovation.
Other major examples of the counter-hegemonic use of the internet can be found
in programs such as Napster which, although eventually enjoined by U.S. courts
of law, has developed within the teenage community (and among many artists fed
up with being exploited by mega-producers) the idea that music is and should be
freely available on the internet. Open Cola has recently provided an example of
"open" product that is that can be copied and improved, in clear antagonism with the
highly secretive practice of Coca-Cola and Pepsi-Cola corporations. In the
domain of culture and knowledge, Wikipedia, an open internet encyclopedia,
allows anybody to improve and add entries, now displaying some 20,000 entries
and constantly growing. Finally and most recently is the
"open brief" philosophy behind Professor Lawrence Lessig's attempt to challenge the
excessive duration of
copyrights (between fifty and seventy years after the author's death) in a suit on behalf
of the online publisher Eldritch Press.
n100 Professor Lessig is using the legal creativity of U.S. law students from major
universities in order to frame the best possible arguments against the
excessive duration of
VI. HEGEMONY AND COUNTER-HEGEMONY IN LEGAL SCHOLARSHIP
American legal hegemony can be much better seen (and is much more important) as
a change in legal consciousness than as a pattern of transplantation of legal
rules. Legal reception is a highly creative activity,
n101 and legal transplants would be severely misunderstood in their nature if they
were approached only as a mechanical import-export exercise.
n102 Much more important is to monitor the diffusion of professional ways of
thinking about the law and to address such
[*408] major intellectual changes as results of the ideological apparatuses of global
It is important to discuss examples of Americanization (and of
counter-hegemony) at a deep fundamental level of the legal system. By following
patterns of changes between sources of law in the last two decades, we should
be able to see whether and to what extent legal globalization can be seen as a
pattern of legal Americanization. We should be able to conclude that American
"contexts of reception" is so different from American law in the
"context of production"
n104 that a universal notion of
"imperial law" is necessary to capture the present situation of law in the global context.
Notions of legal globalization territorially connected with specific,
"contexts of production" (e.g. French Law, German Law, U.S. law) are less useful in perceiving the
nature of the post-Cold War legal order. They are too much connected with
territorial approaches to comparative law that are now in the process of being
reconsidered as a consequence of the powerful birth of institutions of legal
globalization (such as the WTO, IMF, EU, and so forth).
n105 Legal systems do not agree on what the formal sources of the law are. For
comparative purposes, nevertheless, this disagreement is just another area of
comparison, while an agreement has been reached that the relevant sources of
law for comparative purposes are not necessarily formal sources of law within
the technical meaning of a specific legal system.
n106 I will explore the present phase of globalization/Americanization in three
fundamental places: legal scholarship, case law, and codification. If I succeed
in offering evidence of a deep and pervasive impact on intimate and
traditionally local aspects of the law, the idea of
"imperial law" as the outcome of such processes should become even more persuasive.
This section focuses mainly on the impact of Law and Economics, a highly
influential approach to law in the contemporary process of making European
private law, as well as one of the most influential scholarly approaches within
[*409] World Bank and the International Monetary Fund.
n107 The reader should keep in mind that when a new paradigm of legal scholarship
is able to seize a leading position, it is usually by making previous
approaches look obsolete and primitive. An example is the French exegetic
methodology, which was considered obsolete by the much more elegant and
scientific German-Pandectist approach. The Franco-German-inspired social
approach, advertised as a step forward in civilization compared to the previous
"Lochner-Era" individualism, may have also become the leading position in this way. This is
certainly the case in present U.S. hegemony, offering an expansive
universalistic global model that expresses itself in English (the new lingua
franca), that keeps a dialogue open with economics (the queen of social
sciences), and that claims to be the new natural legal order of the
post-Westphalian state society based on imperial law. Such a legal system,
short of being politically legitimized, receives its legitimacy and
desirability by the intrinsic virtues of general access to the global
capitalist market place, a dream spelled out at the front door of the luxurious
building of the World Bank in D.C.:
"We Dream of a World Free from Poverty."
Imperial law, as short of being a mode of governance in need of legitimacy as
any other, becomes the technological backbone of the global market--something
to be approached apolitically, to be described and modified only by
technological practices. For the first time after the Cold War, funding is
available for scholars who wish to be the technocrats and the engineers of this
apolitical system. Within these assumptions, any approach to the law that still
considers it as a political institution that cannot be understood and described
in graphs and numbers is disposed of as obsolete, and any approach that
requires something other than a reactive minimal philosophy of governance is
entirely out of fashion after the fall of the Berlin Wall. Law has to create
incentives for market actors. The skilled lawyer and policymaker is not
appreciated if his suggestions require a proactive and expensive activist
posture of governments, let alone if he argues for economic redistribution by
taxation or other obsolete Keynesian measures. The legal scholar can count only
on the natural existence of markets: his role is to produce a correct set of
market incentives. The quintessential example of this attitude is the
"self-sufficient" model of corporate reform produced by
[*410] leading Columbia University scholar Bernard Black (now at Stanford Law School)
for the Russian Federation.
The institutional background of U.S. law was the highly original context in
which the legal process, the first genuinely original paradigm of American
legal scholarship, developed its analysis.
n109 The United States is the only generally federalized judicial system in the
world. U.S. law, therefore, has to cope with a number of unique potential
conflicts between institutional actors, something that naturally makes lawyers
develop a tremendously sophisticated consciousness on the practical importance,
in litigation, of who decides what.
n110 Within U.S. legal culture, the unprecedented degree of anti-formalist hegemony
experienced by American legal realism called for some reaction. In Germany and
France, the two leading exponents of the civil law tradition, anti-formalism
has never successfully reached beyond the status of a critical current of legal
thought, only marginally influential outside of legal scholarship.
n111 On the contrary, in the United States, legal realism was able to seize the
leading posture among legal approaches in academia and also, not marginally, in
the judiciary and the administrative state.
The reaction to legal realism, produced by the legal process school mainly in
public law and by the economic analysis of law in private law, had no foreign
models by which to be inspired. If seen in the domestic perspective of U.S.
law, both the legal process and the economic analysis of law share an ambiguous
relationship with formalism and realism. It would be difficult to imagine the
birth of the legal process outside of the very peculiar U.S. federal system,
while, because of the nature of economic reasoning, the economic analysis of
law is a universalistic paradigm. As a consequence of this different degree of
[*411] specificity, only law and economics has been able to become a world-wide
hegemonic form of legal consciousness.
While it would a gross exaggeration to claim that law and economics today
enjoys the leading role as an approach to legal scholarship in European
countries, we can nevertheless see that it is the main intellectual vehicle
used by American legal consciousness to diffuse itself and to impose its
hegemony in the center and periphery of the world.
n113 The notoriously expansionistic and universalistic blend of neoclassical
economic analysis, together with the very thick layer of ideological
assumptions that are imbedded in economic reasoning and that produce the
development of the evolution towards economic efficiency as a sort of second
nature, are all behind the intellectual success of this line of reasoning about
n114 A very clear bias in favor of the efficiency of the common law adjudication
process promotes the reactive posture of the courts of law as the normative
philosophy of U.S. academic discourse. Privatizations and structural reforms,
sustained by the international institutions of global governance, make law and
economics one of the most important cultural currents that diffuse tacit
assumptions of U.S.-based imperial legal consciousness.
Law and economics, once transplanted outside of its context of production,
displays the high level of ambiguity that allows it to flourish. Conservative
scholars admire its intellectual elegance; more progressive and liberal
scholars see its potential in subverting the highly formalistic and black
letter flavor of local law, and claim that the conservative political bias is
something that can be left on the other side of the ocean.
n115 Many European scholars are attracted to law and economics, and even when
attempting to use it critically, are paving the way to scholarly
Americanization and becoming part of the very same world phenomenon of
hegemonic imposition that they would like to criticize.
The distinctive American flavor of law and economics leaves open a fundamental
question: what is the legitimacy of a scholarly paradigm when applied outside
of the cultural context in which it has been developed? What are the political
implications of using law and economics outside of the cultural
[*412] environment in which it has developed? Is a new legitimacy necessary for the
context of reception, or is the one captured in its original environment also
sufficient for the new one? It is urgent that such critical questions are
approached within a broad historical context, in which present trends are not
taken for granted and in which local specificities are fully appreciated in
their political meaning. Such a critical exercise is even more needed if law
and economics aims at establishing itself, as discussed in the previous
sections, as one of the fundamental methodologies of the new imperial legal
n116 has pointed out that law and economics has entered a post-modern, interpretive
phase of development in which its nature of a grand discourse over the nature
of law aiming at objectivity has yielded to a local micro-strategy grounded in
pragmatism. Using such strategy, legal scholarship pursues hegemony and
influence over the other sources of U.S. law by means of a radically
neo-pragmatist attitude. Such critical development has been fostered by a
general loss of faith in the objectivity of efficiency-based discourses, the
very same faith that in previous times had guaranteed to law and economics, and
to economics in general, their hegemony within the post-realist approach to
legal scholarship and within other social sciences.
n117 Such evolution can be seen in all its fundamental importance from the
perspective of legitimacy of the legal discourse, if one takes into
consideration that the quest for objectivity had already been at the roots of
the legal process school in the fifties.
n118 In the United States today, law and economics has been finally unseated from
the throne of legal objectivity, so that its normative recipes need a new
contingent and local legitimization in order to compete with those of a variety
of opposite political strategies.
The traditional grand theory of law and economics has been successfully
received and implemented by the new all-powerful producers of global law, the
private and public international institutions of global governance (the WTO,
World Bank, IMF, mega-law firms, and so forth). In this institutional scenario,
[*413] successfully described recently as Empire
n119 or as Polyarchy promotion,
n120 even lively scholarly debates happening only in one place (however hegemonic
such as the United States) cannot help but be parochial and ineffective,
particularly as far as the voices of intellectual resistance and critique are
concerned. The emerged false opposition--between a global dimension, which is
the domain of the market and of efficient institutions, and a local dimension
as the location of solidarity and politics--requires a genuinely cosmopolitan
legal culture to be exposed and challenged.
As pointed out in a recent essay, traditional comparative law is particularly
ill-equipped to tackle the critical analysis necessary in order to study and
"new" legal systems of the global world, those non-territorial suppliers of law that
characterize the present landscape (WTO, IMF, and so forth).
n121 Indeed, traditional comparative law is prisoner of a territorial national
paradigm of inquiry that is all but dead as a tool for understanding legal
globalization. Thus, in order for the comparativist to become an effective
global lawyer, it is necessary to rethink radically the modern idea of borders.
Tools must be invented to compare non-territorial legal systems between
themselves as well as with territorial ones.
The a-critical reception of law and economics, with its grand discursive
strategy based on efficiency and objectivity, then becomes the ideological
apparatus of global authority. Alternatively, when eventually (if at any point)
the post-modern vein of U.S. law and economics becomes understood, the
reception will remain embedded in postmodernism,
"the logic by which global capital operates."
In the United States, despite a number of contradictory characters,
postmodernist legal paradigms have been able to
"develop as a radical critique of both formalist and realist paradigms competing
with each other for cultural hegemony in the legal academy . . . [by
challenging] the American dream, the realist market pragmatism, and the
simplifying assumptions of the leading paradigms of research."
n123 Even setting aside here the devastating impact of economic modernization,
carried on by means of western conceptions of the law
[*414] in societies that have followed different paths of development,
n124 it is clear that outside of the American cultural and institutional context,
legal phenomena are quite different. For example, in the European legal
landscape, still possessed by the self-serving formalist and localized attitude
of the legal discourse, there is a need to introduce some values of modernity
rather than to entertain postmodernist critique. A number of pre-modern aspects
of European society still strike the observer. For example, formalism, a value
symbolizing class division, has never been replaced by informality and
openness. Hence in Europe, postmodernism reinforces the pre-modern status quo,
even at a superficial level of analysis. From a cultural perspective, it
legitimizes the forces opposing radical institutional remodeling of
legislatures, courts, and scholarship such as those needed in order to
counterbalance American legal hegemony.
Interestingly, the influence of American scholarly thought in the law, as
applied to such a highly political exercise as the building of the new European
legal landscape, shows even more division and more need to distinguish
differences of attitude in the process of reception. A wide gap between
northern and Latin European countries in attitude towards the reception of
American-inspired modes of thought about the law is too apparent to be
neglected. Northern countries, including Germany, Holland, Great Britain, and
the Scandinavian countries, have incorporated much of the new American attitude
towards the legal discourse as symbolized by law and economics. In such
countries, the internalization of leading U.S. modes of thought in the law,
such as balancing jurisprudence (including law and economics), has tremendously
increased in the last ten years. The
"new European legal culture," mostly made by scholars belonging to such northern countries where the
university system does not live in a state of disarray, and in which law
professors are mostly full time scholars or (some of them) policymakers, is
much more similar to U.S. legal culture than to the traditional European one.
n125 This new European legal culture, dominated by northern scholars able to
express themselves in English, is the most influential in European private law
drafting. The outcome of such northern reception is a technological attitude
towards the legal discourse, traditionally
[*415] foreign to the European style and very functional to the legitimizing strategy
of non-politically accountable techno-bureaucratic elites within the European
Nevertheless, legal Europe is not made only by northern, Anglophone elites. A
variety of resisting attitudes can be shown too, particularly in southern Latin
countries resenting their marginalized status in the exercise of building
European law. Such Latin counter-cultures are occasionally originated simply by
the cultural incapacity to participate in policy-oriented discussions about the
law, because leading lawyers in those countries are still the product of a
highly formalistic interpretive culture. Sometimes, such resisting attitudes
are due to the still notable strength of the
"social mode of thought about the law" which leads to the belief that the neo-American model carries with it
reactionary eighteenth-century models of capitalism.
n126 Indeed the early resistance against law and economics in Europe was
politically motivated by that same belief, even in Northern European countries.
n127 A third mode of resistance with clear ambitions of counter-hegemony is
unfolding within the critical comparative law community by the use of
historiography, anthropology, and neo-institutional economics. Such an emerging
n128 directly connected with U.S. critical scholars
n129 and with European critical philosophy,
n130 is carrying on a genuine attempt to exploit the
"subversive function" of comparative law in order to take advantage of the much more cosmopolitan
flavor of minority European legal cultures, which have been forced by political
necessity to look beyond localism and to develop worldly approaches to the
[*416] approaches are particularly interested in opening a channel of exchange with
the traditional periphery, with particular sensitivity to the issues of Islam,
boundaries, and exclusion.
VII. COURTS AS AGENCIES OF U.S. HEGEMONY
As discussed above, U.S. law has been able to receive and to
"exaggerate" from Germany and from England, the two main agencies of professional check
over the political process: legal scholarship and the judiciary. Both of these
agencies, entrusted with considerable political power, have no purse, are
inspired by a reactive philosophy, and are ill-equipped for any proactive
re-distributive role. A universalistic notion of rights, received from the
French naturalistic tradition, has also been exaggerated in the United States.
This section explores the hegemonic consequences of a universal discourse on
rights enforced by a strong system of courts.
n132 It further dwells on the global consequences of the reactive philosophy in
contexts in which courts do not operate as effectively as the American ones in
the enforcement of rights.
While the development of a leading legal scholarship in the United States is a
relatively recent accomplishment,
n133 the development of an all-powerful judiciary in charge of many policy
decisions was noticed quite early by Alexis de Tocqueville.
n134 Naturally, scholars are those who provide consent to scholarly hegemony. When
we shift our attention to U.S. courts as agencies of hegemony, we are faced
with the problem of detecting the agents of agreement to such a hegemonic role.
My claim here is that the plaintiffs' bar is playing such a role and that,
again, the last decade has shown significant changes. In other words, while
[*417] courts of law have been a strong and very influential institutional branch
throughout U.S. legal history, it is only in this last decade that they have
started to perform a major global hegemonic role.
The story of courts of law as hegemonic agencies of the global legal order
began unfolding in post-World War II developments, and reached its final stage
in post-Cold War jurisprudence. The Holocaust played a direct role in both of
n135 In the immediate aftermath of World War II, the Nuremberg trial planted the
seeds of an idea of international legality based on special courts of law, with
a mode of faith in the judiciary. While the notion of courts capable of
enforcing universal human rights is certainly rooted in the Nuremberg trial,
n136 the idea that the national system of U.S. courts of law can provide this role
worldwide is a post-Cold War development, with the U.S. Holocaust-related
litigation as its central drama.
As is well known, numerous lawsuits have been filed in U.S. federal and state
courts asserting what are now commonly referred to as
"Holocaust claims." In these claims for events arising out of World War II, plaintiffs maintain
that the wrongs alleged--which include concealed bank accounts, looted assets,
looted art, and insurance policy claims--are best adjudicated by U.S. courts
because various procedural mechanisms of the U.S. judicial system allow
efficient disposition of the claims. Each case involves stories about
still-living plaintiffs, or their friends and family, being either brutally
subjected to Nazi horror during the war (looted asset and slave labor claims),
or unscrupulously denied access to their legal entitlements after the war
(insurance and bank deposit claims). Commissions have been authorized and
funded in Switzerland, France, and the United States
n138 to pursue the question.
n139 Substantial and factually non-frivolous
[*418] claims have also been filed in U.S. courts by both U.S. and foreign nationals
for forced labor and sexual slavery imposed by the Japanese in the Pacific
Theatre of the war.
The U.S. Constitution, drafted in 1787, reflects the natural law beliefs that
dominated eighteenth-century jurisprudence. A primary tenet of that belief was
the recognition, preservation, and vindication of individual rights, whether
they arose in the United States or abroad. The framers and the first generation
to follow them gave substance to that belief, in part through the idea that
international law could be seen as a system of customary protection of such
rights. This principle was reflected in Article III of the Constitution itself,
which, while concerned with limiting federal jurisdiction vis-a-vis the state
courts of the United States, broadly interpreted the notion of cases
"arising under the Constitution . . . [and] . . . the Laws of the United States" to include international law claims based not only upon treaties, but upon
custom as well. The U.S. Constitution also granted
"alienage" jurisdiction in all cases between
"a State, or the Citizens thereof, and foreign States, citizens or Subjects." This set the stage for the expansive vision of federal court authority in all
areas that touched on foreign affairs.
n140 Congress further extended subject matter jurisdiction to U.S. federal courts
through passage of the Alien Tort Statute, part of the original Judiciary Act
of 1789. While originally more restrictive in scope and practical use, that
statute, today codified as
28 U.S.C. § 1350, provides that
"The district courts shall have original jurisdiction of any civil action by an
alien for a tort only, committed in violation of the law of nations or a treaty
of the United States." The origins of the Act remain somewhat obscure and, for almost 200 years, the
statute lay practically dormant. But the statute suddenly came to life in the
Filartiga v. Pena-Irala,
n141 in which the court held that the act complained of--torture of a Paraguay
citizen by a Paraguay official acting under color of law--violated the
"law of nations" that, according to Article III of the Constitution, was directly incorporated
into federal common law.
n142 Thus, the
[*419] embryonic but clear potential for U.S. courts of law to vindicate wrongs
committed throughout the world, and thereby protect the natural rights of the
world's individuals, was finally given expression. Such
jus cogens violations of natural rights conflicting with clearly established norms of
international law can and do happen everywhere in the world, in theory
transforming the United States into a forum for all the world's grievances.
Such potential world-wide jurisdiction of the American judiciary has been
historically balanced by a number of countervailing principles, such as the
"minimum contacts" and the constitutional doctrine of
"justiciability." Other doctrines, such as
forum non conveniens, have been elaborated by U.S. courts to safeguard the principle of their
jurisdiction while simultaneously refusing to keep jurisdiction when it is more
proper to have the litigation unfold outside the United States. While
employment of the doctrine is not uniform among state courts, some uniformity
has developed on the federal level after the Supreme Court wrote extensively on
the topic in
Piper Aircraft Co. v. Reyno.
n144 Nevertheless, a
forum non conveniens decision by a trial court remains based upon a balancing of interests and the
decision remains within the
"sound discretion" of the court.
Beginning in 1996, the impressive explosion of Holocaust-related litigation
provided world-wide visibility to this phenomenon.
n145 Indeed, European lawyers representing a large number of Europe-based
corporations active in the insurance, banking, and industry are today involved
in one capacity or another in litigation on both coasts of the United States
concerning hundreds of claims based on facts that occurred more than a half
century ago. Because of the distance of the Holocaust from the United States,
n146 and because of the nature of judicial challenge to actions carried on under
shadow of foreign law and politics, the
[*420] holocaust litigation is the most extreme and emblematic episode of a
world-wide trend in international litigation in which U.S. courts promote
themselves as de facto judges of world history.
In addition to the emotional implications of such litigation, which requires us
to relive one of the most horrible tragedies in recorded history, the
holocaust-related litigation seems an indictment of the very activist
jurisdictional posture of the U.S. courts. Such posture is now resented as a
major phenomenon of legal imperialism because of the way in which it imposes
American standards not only of substantive law (which are, with respect to
these appalling events, in any case largely shared by most nations in the
world), but also of procedure and of legal culture. In particular, the
pro-plaintiff (relative to the rest of the world) attitude of United States
procedure, which has already created so many problems,
n147 may impose standards that offend the legal sensibilities of non-American
lawyers. Interestingly, none of the almost five hundred Holocaust related
actions filed in U.S. federal or state courts (with the exception of one
important insurance holocaust claim and one French bank claim)
n148 have ever reached the stage of a full-fledged decision on the comprehensive
"motion to dismiss."
Even at the earliest stages, nevertheless, plaintiffs will ask the court to
allow them some limited discovery, usually related to jurisdictional matters.
n150 The stunning reach of U.S. discovery
n151 is one of the most important factors explaining the present hegemony of U.S.
law in world-wide litigation. American-style discovery, often experienced by
defendants as a
"fishing expedition," is
[*421] traditionally very much resented in European countries, as is well-documented
by Article 13 of the Hague Evidence Convention, which allows signatory
countries to decline to cooperate in matters of American-style discovery. Even
the early stage is complicated, time consuming, and very expensive. For
example, in a complex international litigation involving issues of foreign law,
a rather extensive role of expert witnesses might be involved. Not only do
issues of law have to be addressed by expert declarations, but litigants must
also address factual questions that might require expensive declarations as
well (e.g. by historians, bankers, experts of business practice, and the like,
who typically have to be hired and compensated). Moreover, the responsible
attorney must absorb, to a great extent, the impact of the foreign law on the
case and be prepared to argue it both in the briefs and at oral argument. Since
each point of law in the motion to dismiss has to be thoroughly
briefed--involving massive searches of the case law for helpful precedent--a
large number of attorneys are typically involved in various capacities, who are
compensated at rates usually ranging from $ 200 to $ 500 dollars per hour. It
is no exaggeration to estimate that that resisting even an entirely spurious
claim involving complex international litigation in the United States might
cost a defendant not less than one million dollars per year. This
"third factor"--the high cost of litigation--in part explains the high rate of out-of-court
Besides discovery, other difficulties exist, such that suits in U.S. courts put
high financial pressure on defendants. To begin with, the system of attorney's
compensation is, at least in tort cases, very attractive for plaintiffs.
Plaintiffs' attorneys are usually compensated on a contingency basis. Defense
attorneys, on the other hand, are typically compensated on an hourly basis,
which is typically less lucrative compared to the cases that end in a
plaintiff's windfall, but which constitutes a more certain form of
n152 For the plaintiff, suing in a U.S. court is a
"risk free, no cash advance" enterprise. This would be impossible in any other jurisdiction, due to
restrictions in the availability of contingency fee agreements. Tort law in the
United States has been very creative in terms of doctrines employed to extend
liability to defendants. One need only think of the
"market share liability" concept first employed in the pharmaceutical class action setting.
A second feature of the system is, of course, the availability of punitive
damages. A third is the employment of the jury to determine liability and
damages. Jurors tend to be sympathetic with victims, adopting a
"rough equity" approach, and are sometimes quite liberal with standards of proof.
n154 Finally, and perhaps most obviously, the vehicle of the class action, which
"representative" plaintiffs to pursue the action on behalf of a
"plaintiff class," is one of the most powerful attractions of a U.S. forum. Sometimes litigation
in the United States is the only vehicle available for vindication of these
kinds of rights. And this is indeed one of the strongest rhetorical reasons for
the hegemony of American law in the international context. The class action is
a technical device that allows relatively small individual interests that could
never afford the costs of litigation to aggregate, forming a large and
structured interest strong enough to attract plaintiff's lawyers to litigate
the claims. Invariably, the winning strategy for plaintiffs opposing
forum non conveniens motions is to show that the interest that is litigated as a class action in
the United States could never find access to courts anywhere else in the world
because of the lack of the class action as a tool.
When an international class action is initiated in the United States on the
basis of international law violations, a tremendously complex and expensive
procedure is initiated. Class actions are carried out on behalf of the
"named plaintiffs." A
"putative" class action implies that after the preliminary issues are addressed, assuming
that the motion to dismiss is denied, the class must be
"certified" in order for the
"putative" class to become a recognized one.
[*423] Because of the attractive force of the American courts for international forum
shoppers, and because of the traditional reluctance of U.S. courts (motivated
by the rhetoric of international human rights and by notions of
jus cogens) to give up jurisdiction in favor of foreign courts, a quite interesting
phenomenon can be detected. Concepts and notions that are inherently American
become part of the common vocabulary and culture of the international legal
practice, even when it is carried on by lawyers belonging to civil law
The way choice of law is handled offers yet another glimpse into how strength
easily turns into arrogance, as well as into the unprincipled way in which
hegemonic power is exercised. As is well known by any lawyer involved in
international legal practice, the choice of substantive law might be a crucial
factor for forum shopping. American choice of law rules are considered very
advanced, and the Americans are considered world masters in the field of
private international law because the choice of law issue has always been part
of their everyday practice of the law. The American conflict of law system is
based on the fundamental idea that the legal system with the more intense
contact with the transaction should prevail.
n156 It is, however, also very sensitive to the idea that the commonalities between
legal systems should be exploited in order to obey a notion of judicial
n157 Hence a strong functionalist flavor points at not bothering to belabor foreign
law too much when the results of its application would not be so different from
those that would be reached by the application of U.S. law.
The complex American litigation on international law is so far removed from the
due process standards of most non-American jurisdictions that it is very
unlikely that any court of the world would enforce most of the judgments
entered in the United States against non-American defendants for disputes that
arise abroad. In Europe, for example, we are used to a notion of due process
that is not limited to the idea that plaintiffs should have tremendously strong
tools in order to vindicate their rights. Europeans believe that the
possibility of a defendant being innocent entitles them to due process
guarantees as well. Nevertheless, many defendants in the global world have
significant assets in the United States and wish to avail themselves of
business opportunities in the there. Hence, the jurisdiction of U.S. courts is,
in some sense, voluntarily accepted by defendants for economic if not for legal
[*424] As discussed in the previous sections, the reaction to hegemonic practices has
the potential to become counter-hegemonic. Indeed, there is no lack of evidence
of such use in the United States today. Litigants contesting unfair labor
practices abroad and environmental issues of global concern are often attracted
to U.S. courts, thanks to the pro bono activity of so many social activist
groups. Nevertheless, such commendable activity ends up even more strongly
asserting the idea that U.S. courts of law are natural and effective
adjudicators of world grievances, and that they can serve as alternatives to
political struggle and revolutionary practices to make a better world. Whether
an inherently conservative judiciary can make good law for progressive purposes
is a question that remains open. U.S. courts of law might end up serving as
monitoring agencies of governments abroad, arbitrarily holding them to
standards that are very different from those respected at home.
There is no system in the world in which courts of law are as effective
agencies of rights enforcement as in the United States. If decisionmaking
authority in a shrinking public domain is transferred to ineffective rights
enforcers, what follows is lawlessness and the rule of the stronger market
actor. The globalization of the reactive philosophy thus makes the periphery
the ideal marketplace for predatory and opportunistic international capital. It
is already a fact that international corporate capital is much more careful in
its action within the domestic United States than abroad. While it can always
be sued domestically, if its abusive activity is carried on abroad,
jurisdictional barriers make the possibility of being sued less certain.
American courts of law keep the power to intervene, but they do so only
selectively, skilfully playing with notions of international comity when they
wish not to offer an effective forum for plaintiffs.
Hegemonic and counter-hegemonic forces are not active only in contexts of
reception. They appear tremendously present even in the context of production,
where the very same global economic actors struggle to make the United States a
better place for carrying on their business. The tort reform movement shows how
anti-plaintiff activity can be strong even in the United States.
n159 Many recent changes in U.S. legal practice point to a reduction in the power
of the private bar in favor of more the harmonious practices of case management
[*425] dispute resolution schemes. The same forces that profit from the reactive
philosophy and from the reduction of the public domain proactively cured by
State institutions also push in favor of changes in the United States, aimed at
controlling the potential counter-hegemonic use of courts of law in order to
vindicate rights of the weak before the strong. Thus, while the European way of
thinking and rhetoric about adversarial decisionmaking becomes more American
(Italy is a very interesting example of this phenomenon), the American one,
because of the domestic impact of the
"anti-law movement," becomes more harmonious and less effective in the protection of rights. Thus
"convergence" in legal procedure in the present phase shows the triumph of the worst of the
two worlds as the dominant global model of decisionmaking.
VIII. U.S. HEGEMONY IN THE EUROPEAN CODIFICATION PROCESS
In the previous two sections, I have discussed in some detail patterns of
Americanization in legal scholarship and case law. I wish now to complete this
cursory panorama of the main sources of law by focusing on legislation.
Instances of the influence of U.S. law on legislation in Europe are not
difficult to detect.
n161 Strict standards of liability for manufacturers are a standard example in the
comparative law literature.
n162 I wish here to focus on the very core of European legislation: the Code.
There is no European Civil Code in place, of course, but there is a widespread
debate on whether there should be such a Code, and what it should look like.
European civilians, world masters of codification since Napoleon, and world
exporters of Civil Codes through the ages, have been receiving and accepting
advice from the hegemonic U.S. system, even in the most culturally-loaded
aspect of their theory of the sources of law.
[*426] The traditional idea of codification, which is the product of
Nineteenth-Century modernist grand style, and supported by a transcendent idea
of sovereignty vested in the State, is a comprehensive, territorial, systematic
body of private law rules claming quasi-constitutional status in the
edification of the bourgeois legal order.
n163 Codes are to be applied and enforced by subordinate institutions of the legal
n164 The main function and posture of civil codes in the civilian imagination is
that of the gravitational center around which the legal system rotates. In this
conception, a civil code is no ordinary piece of legislation, even though its
formal status among the sources of law is the same as any other legislative
enactment. Civil Codes in Europe have been deeply political and symbolic
enactments. For example, the French Code Napoleon of 1804 contained the
translation of the constitutional values of the bourgeois revolution into
n165 The German Burgerliches Gesetzbuch of 1900 was the symbolic manifesto of the
rebirth of the German Empire, incorporating much of the conservative Kantian
n166 The Italian Civil Code of 1942 reflected the political attempt of fascism to
break with the individualistic values of the bourgeoisie in favor of a state
inspired, authoritarian social model of economy known as
"corporativism." The Mexican Civil Code of 1950 and the Eastern German Civil Code of 1975 both
attempted to reflect the political values of the socialist revolution into
Present day codification proposals are much more cautious, less ambitious and
generally discussed as politically neutral.
n167 They are limited in scope, as today we are reduced to discussing whether
contract law should be codified.
n168 They are presented, borrowing from U.S. style, as
"model codes" or
"restatements." Notions such as
"open texture," and
"bottom-up," entirely foreign to the European legal vocabulary, are
n169 Such proposals are to be
"harmonized" by a variety of other sources of law.
Scholarly reaction was lukewarm when, in 1989, the Strasbourg Parliament, the
only democratically representative institution of the European Union, for the
first time recommended action in the domain of civil codification.
n171 This attitude is shared today by a number of scholars who have expressed
severe criticism to the recent, quite detailed discussion of the subject
matter, offered by the Direction General 24 of the European Commission.
True, some Codification proposals have been advanced by self-appointed groups
of scholars, and some of this activity (such as that of the so-called Lando
Commission) has been indeed successful in seizing the stage of European private
law. Nevertheless, perhaps because of a more rooted positivistic imprint in
European legal scholarship, the issue of legitimacy quickly arose and even such
self-appointed groups, lacking any political legitimization whatsoever, have
made it clear that their product had little in common with the traditional idea
n173 The debate over the function of and need for a Civil Code for Europe is
carried on almost entirely within a U.S.-inspired
"technological" framework of discussion about the law.
[*428] Postmodernism is the logic of late capitalism.
n174 Postmodernist legal discourse gives up claims of universality, objectivity,
n175 The nation-state blurs, sovereignty is decentralized, and legal propositions
cannot be legitimized in terms of right or wrong. Justice becomes relative, and
efficiency becomes expediency, pragmatism, and strategy.
"Avant garde" jurists have claimed that the law is the domain of professionalism, culture,
n177 Jurists have finally rid themselves of positivism, state-centrism, and
dogmatism in legal reasoning. Legal style has become a pastiche of different
modes of thought--many times borrowed from experiences of different domains of
knowledge or of different legal experiences.
n178 Political legitimacy is the last of concerns. If legal reasoning is a
technique of argumentation, a battle of hired weapons, there is no space for
the myth of political representation. Such mode of thought, interestingly
borrowed from French leading philosophers such as Sartre, Derrida, and Lyotard,
n179 has characterized American legal thought from the last decade of the Twentieth
n180 Its reception in the European debate on codification, in addition to
demonstrating the unprecedented influence of contemporary U.S. law, shows in
action how the building of a second nature, due to the U.S.
"technological" conception of law, works outside the very specific U.S. institutional setting.
On the continent, post-modernist legal discourse has intruded on the dominant
position of legal scholarship among the sources of law.
n182 The law has long been the domain of jurists in Europe, an elite of
sophisticated intellectuals traditionally legitimized by knowledge and
[*429] Seen from the perspective of hegemony, it is difficult not to observe that,
together with the last wave of U.S. legal influence, the European debate over
codification shows a real change in the relationship between the law and the
market. Both the soft
"cultural" attitude, typical of postmodernist scepticism, irony, and loss of faith,
n184 and the technocratic approach proper of mainstream U.S. legal thinking are
functional to a new legal and economic order in which the market governs the
law rather than the other way around.
n185 It is no surprise that, within this paradigm shift,
n186 the model code that has been able to seize the stage of the spectacle has been
the Uniform Commercial Code. This U.S. example, which shares very little with
the Civilian idea of codification (and which in turn shows some German
influence), was consciously pursued by its
"inventor" Karl Llewellyn as a professional project of merchants, with very little in
common with the core
"political" project of a civilian civil code.
In order to be successful, legal institutions competing with strong economic
actors need to be strong and highly effective. The stronger the actors, the
stronger the institutions must be if individual selfishness and interest are to
be channelled for the general welfare.
n187 The rhetoric about the efficiency of soft law has to be exposed in order to
anticipate the impact of the Europeanization of private law.
n188 I submit that emphasis on softness in the making of European private law is
likely to mean lawlessness and a free battleground for exploitive business
Mathias Reimann has suggested that the U.S. model should be thoroughly
n189 To be sure, because soft law is an American metaphor, we need to place it in
context. Scholars have trained us to understand that transplants of legal
institutions are not like exports of commodities.
n190 Both the contexts of reception and origin are highly relevant in predicting
what is likely to happen. The present day European context could not be more
different than the context of U.S. law, where restatements and model codes have
been suggested and
[*430] developed as soft law alternatives to hard law since the 1930s.
n191 The United States of the Twentieth Century was indeed the institutional system
with the strongest judiciary in the history of humankind. The decisions of the
U.S. judiciary, reinforced by
stare decisis, have never been perceived as soft.
n192 The American judiciary's role in the process of making the general rules of
the game has always proved stronger than the role of legislators. Statutory
law, in fact, could never do much more than suggest piecemeal changes.
n193 Soft law in the U.S. never undermined, either rhetorically or in substance,
the main actors of the legal system, who are the legitimated forces of control
of the public sphere on the economic behavior of market actors.
n194 In Europe, such a background scenario of strong self-legitimized institutional
actors with inherent powers to channel individual economic self interest in
directions compatible with the public welfare is simply absent.
A soft Europeanization of private law lowers responsibility for national legal
systems, persuaded as they are of the existence of another level of the legal
system that is
"better located" to monitor global transactions.
n196 The soft discourse at the European level undermines the prestige of national
civil codes, which are considered obsolete and out of fashion precisely because
they are hard.
n197 However, such national civil codes are the only source of principled
legitimacy of judicial power in present day Europe. Thus their cultural
undermining is a blank check to corporate rapacity.
It is not difficult, in conclusion, to see that the Americanization of the
codification process weakens European institutional effectiveness. It shifts
the balance of power even further in favor of the United States, which is
incrementally becoming the only effective legal system in the global
marketplace. More and more plaintiffs will try to litigate in the United States
[*431] continue to try to keep the cases in Europe. While American courts will
experience the luxury of deciding which cases to entertain, and American law
the luxury of providing the standards of responsibility worldwide, corporate
market actors, the real beneficiaries of the neo-American model of capitalism,
will have in Europe a giant market to exploit with very limited local
restraints. The only limits might be imposed at the center, if the American
judiciary is willing to do so.
IX. CAPITALISM V. CAPITALISM: EFFICIENCY IN LEGAL TRANSPLANTS REVISITED
In the course of twenty years, the fundamental characteristics of U.S. law, by
a process of naturalization and of technological transformation of the legal
discourse, have ceased to be seen as one possible path in the law and, having
turned into imperial law, have been able to assert themselves as the only
alternative in global society.
n198 In the making of such imperial law, alternative models foreign to the U.S.
cultural imprinting have been abandoned or unable to develop fully because of
the irresistible force of U.S. legal expansionism, which is grounded in a
"market prone" reactive philosophy. Such alternative models might be seen as patterns of
resistance, in the sense that they reflect deep traditional characteristics of
what is now a new periphery, hastily abandoned to follow models produced at the
center. Such counter-forces
n199 have different characteristics and different degrees of intensity. The
aggregate of such counter-trends roughly outlines a possible alternative model
that shows some interesting features for the development of an antagonistic
alternative to the present path of legal globalization.
The previous cursory analysis of the recessive trends in the process of
Americanization of European law offers the traits of a European social way,
grounded in the central position of the welfare State, in which the public
domain and the domain of politics seem much broader than the private domain and
the domain of the market. As a model of economy and development, the European
"social way" was discussed during its political dismantling by French economist
[*432] Michel Albert, in his classic discussion of what he calls the
"Rhine capitalist model" developed in Germany, Scandinavian countries, Holland, Switzerland, and Japan
in the aftermath of World War II.
n201 This model, that we will simply name
"social capitalism" (as opposed to neo-American or imperial capitalism), deserves a closer look,
because it sheds light on the possibilities and limits of counter-fires in the
process of the making of imperial law.
The social model of capitalism, according to Albert's analysis, shows notable
efficiency as compared to the Neo-American alternative, based on the surrender
of the state structures to private capital and short-term financial interests.
Albert finds the following benefits of the social model over the American
model: the stabilizing intervention of the State; the strong role of trade
unions in the creation of a secure and stable marketplace in which workers
develop patterns of loyalty to their employer; a public sector of welfare
assistance capable of limiting the costs of social exclusion; a strong system
of public education and scientific research that does not penalize areas of
knowledge that are incapable of attracting private investment;
n202 and a conception of the corporation as a durable relational institution that
the State will protect, in consideration of the protection that such an
institution offers to its members. Albert argues that these factors make the
social model preferable in terms of economic efficiency as well as social
Albert presents the social alternative and Neo-American model as two structures
of capitalism competing fiercely with each other. Albert adopts an old metaphor
of Schumpeter, according to whom
"It is thanks to the brakes that cars can go faster." Applying this image to his analysis of the two capitalisms, Albert concludes
n204 that it is thanks to the brakes imposed by the public powers and the civil
society that the best economic development can be obtained. The impressive
amount that the French economist offers allows him to conclude that
"it is not true that economic efficiency requires social injustices. . . .
Between justice and
[*433] efficiency exists a strong integration today more than ever; we found it in
all countries following the Renanian model."
Historically, capitalism has evolved and diffused itself mostly by means of one
of the most traditionally studied market failures: externalities. There is a
pattern of development based on leaving the social costs where they fall.
n206 Presently, such social costs are produced mostly by environmental catastrophes
and labor exploitation of women and children. Reactive institutions--local,
foreign, or transnational--are simply incapable of handling the tremendous
pressure that any attempt to internalize such externalities produces for
institutional actors. Two recent papers, devoted to the Bophal catastrophe
n207 and to the market for toys,
n208 dramatically demonstrate the incredibly complex aggregate of interests and
"technical problems" that make it impossible for reactive institutions to attempt internalization.
Imperial law is an institutional setting that does not compel market actors to
internalize their social costs.
n209 No efficient economic system lives outside of an institutional setting.
n210 Promoting reactive institutions as the only alternative takes away the very
features of the legal system that might internalize externalities, and as a
consequence, ground an efficient economic model.
In the absence of high transaction costs limiting their diffusion, efficient
legal solutions would be dominant in the global marketplace of legal ideas.
n211 If such an analysis could be extended more generally to political and economic
institutions, one should see a major diffusion of the more fair and efficient
[*434] capitalism and a concomitant incremental recession of the neo-American model,
yet this is far from being the case. According to Albert:
The dismantling of the social model means abandoning the proactive role of the
government in the economy in favor of a reactive one. The decline of a
proactive role of the government in the economy necessarily transfers
decisionmaking authority to its reactive institutions, i.e. courts of law. In
continental Europe, perhaps for the first time, the logic of public law is
yielding to that of private law, so that a process of hybridization of the two
traditionally separate areas of legal knowledge is taking place.
In the very moment in which the neo-American model proves to be less efficient
than the social model, it nevertheless succeeds in gaining a competitive
advantage from the political and ideological perspective. . . . Because of the
fact of the social and economic superiority of the social model we could expect
to see it triumph also on the political ground. . . . The very contrary is
happening. The social model is literarily overwhelmed by the political and
cultural influences of its American competitor and as a matter of fact it is
progressively left behind from the political perspective.
As proactive institutions are dismantled, there is the need for stronger
n214 or total lawlessness follows. Nevertheless, Albert's analysis shows that, from
the efficiency perspective, the dismantling of the proactive institutions of
the social model of capitalism should be questioned. Such questioning does not
[*435] occur because of the process of cultural influence and hegemonic rule that the
American model has been able to create. Once the consequence of the problem
(the increasing role of reactive institutions) is identified as the problem
itself (reactive institutions in the periphery are weak) there is no question
that American law is able to offer an apparently efficient institutional
setting to imitate.
Albert is no radical. He considers the global spread of less efficient
neo-American capitalism as a paradox. He tries to explain this spread using
notions of seductiveness and appeal, drawing on the intrinsic characteristics
of the neo-American model as a success story of the risk-taking, gambling and
In the radical analysis of French revolutionary thinker Gui Debord,
n216 one finds a thoroughly developed theory capable of explaining the present path
of the law. Within Debord's analysis, it seems possible to solve the
fundamental puzzle approached in this essay: the relationship between the
American and the imperial model.
In 1967, Debord described, in quite difficult language, two models of
spectacular society: the diffused model of the capitalist economy, and the
centralized model of the communist alternative.
n217 The end of the Cold War, Debord argued as early as 1988, has produced a
hybridization of the two models, with the spectacular notion of freedom,
typical of the capitalist alternative, merged with the repressive and
authoritarian conception of order proper of the Stalinist spectacle. This
"integrated spectacle" makes the apparent opposites live in the same spectacular body. Highly
dramatic economic adventures in which the spirit of freedom gets exalted
coexist with highly dramatic and spectacular exercises of repression in which
the forces of the all mighty Empire become the object of cult.
[*436] Debord is not alone in emphasizing the role of media and of the spectacular
dimension in the present phase of world history. For example, Jean
Beaudrillard, in his book
The Perfect Crime, and Pierre Bourdieu, in a variety of recent interventions, both stress the
impact of television and spectacular models on notions of representation and
n219 Using the notion of spectacle is thus very tempting in exploring globalization
and hegemony in legal consciousness, particularly in attempting to shed light
on the phenomenon that puzzled Albert, expansion of a less efficient
One may argue that the only way to create an efficient setting for the global
market is to develop a thorough and efficient global system of control of
externalities, something that requires mighty, proactive institutions in order
to be at all efficient. Nevertheless, the alliance between strong international
market actors and the reactive legal philosophy functional to their needs is
what gives the U.S. legal consciousness the comparative advantage that produces
its success. Short-term benefits typical of financial market capitalism do not
require externality controls, because it is exactly the possibility of
here and now, with long term externalities imposed on the periphery, that explains its
World renowned Italian economist Carlo M. Cipolla explains the tension between
short-term and long-term efficiency thus:
"The history of our happy generations can be shortly described as follows: for
millions and millions of years a treasure has been accumulated. Then somebody
in the family has discovered the treasure and started to dissipate it.
Humankind today is living in a period of tremendous dissipation. In a single
year we consume more coal than how much it is produced in one hundred centuries
of natural formation of solid consumable energy sources."
The institutional setting of the imperial marketplace, short of being more
efficient, seems only to be better adaptable to the needs of short-term
exploitation of the treasure accumulated in millions of years. Of course,
energy consumption is not at all equally spread in the world, and the United
States is on the top of the list of energy consumption. Consuming energy is a
highly spectacular activity. It is a form of common sense to credit to the
spectacle of consumption the fall of the Soviet Empire.
[*437] Law is a cultural aspect of any society. A spectacular society is likely to
produce spectacular law.
n222 If it is true, as Freud once apparently said, that exaggeration is a key to
success and leadership,
n223 there is little question that U.S. law has been capable of exaggerating the
fundamental aspects of western law, making them highly spectacular: judges
challenge the political power and re-write the history of their country; rights
are enforced without frontiers; lawyers are portrayed as living success
stories; scholars are engaged in highly creative intellectual exercises with
little restraint from the actual technicalities of the law;
n224 electoral processes are organized as time-circumscribed displays of
personality cults; there is spectacular assertion of the institutional power of
life and death; and the law is glamorized in movies, best sellers, and
television shows featuring glittering and highly photogenic police cars. All of
these are aspects of the law
n225 abandoning the dusty Kafkian bureaucratic scenarios to be promoted as part of
the imaginative domain of the integrated spectacle.
Thus, what becomes global is not so much the effective, binding, and
nitty-gritty American law, but rather its spectacular aspects. It is not
efficiency but the spectacle of efficiency; it is not the actual organization
of justice but the spectacle of justice.
n226 Impoverished public institutions of the welfare state, in health care as well
as in education, are compared to private ones using standards that always
[*438] make public works look worse.
n227 The proactive institutions of governance, staffed with underpaid personnel,
are depicted as
"bureaucracies" and become less and less attractive to bright global young people.
To be sure, the analysis cannot remain on the merely technical level of
lawyer's discourses. The law is an intimate part of the
"integrated spectacle" and performs a central part in the public political discourse. De Tocqueville
noticed its centrality in America two hundred years ago.
n228 Today, this discursive practice of legality is reproduced at the global level
and is one of the salient features of imperial law. There is no issue of global
governance--from the legality of the war, to legal aspects of global
intellectual property rights, to the consequences of non-aligned politics by
"rough states"--that is not appraised in legal terms. Such legal terms are of course
spectacular, vulgarized, simplified, and exaggerated for the needs of media
To be entertaining, the integrated spectacle of course requires antagonists,
too. The end of communism makes new polarizations emerge.
"Capitalism versus socialism" gets transformed in
"democracy and the rule of law" versus
"the axis of evil." Comparisons become ideological. Portraits are offered with strong traits. The
legal aspects of the first model are promoted and emphasized as fair,
efficient, natural, and good. The legal aspects of the second are unfair,
medieval, inefficient, obscurantist, unnatural, and bad. The antagonist
changes; the strategy stands still.
Institutional alternatives are politically appraised according to their degree
of adherence with the spectacular ideal. What follows is that the U.S. legal
system is naturally the leader.
n229 The Latin alternative--with its different pattern of sexual relationships,
emphasis on extended family ties, traits of state-centrism and remains of
socialism, Mediterranean political sensitivity that is more open and
understanding to the fundamental traits of the Arabic world, and less efficient
organization of its everyday life--gets portrayed (and sometimes is
self-portrayed) as obsolete, untrustworthy, and governed by a fundamentally
[*439] What in this essay I call
"Latin resistance," short from being an organized counter-hegemonic force, is a random aggregate
of political and philosophic thinking, of political action and of protest,
rooted in a radically critical and revolutionary political project. Latin
resistance is the radical questioning of a model of development that people
increasingly see as arrogant, racist, and ultimately self-destructive for
n230 Confronted with the Latin resistance, imperial law displays an unprecedented
degree of spectacular repression.
n231 The sensitivity of this alternative project is rooted in the dramatic history
of de-colonization and, in particular, in the War of Algeria.
n232 In this cultural humus, the question of Islam, and of developing a model of
coexistence rather than a clash of civilizations, is inherently solved within
the Latin resistance in the refusal of a North-South polarization as a
successor of the West-East standoff. The strategy is to develop respect for
demographic trends rather than attempting to build useless technological walls.
n233 The strategy is to expose the variety of western colonial strategies used to
deny the historical role of the East and South in human civilization,
n234 and in particular to develop a thorough critique of ethnocentrism, both
conscious and unconscious. Such ethnocentrism is itself highly inefficient
because it reinforces a model of legal development (the present legal agenda of
the World Bank, IMF, and WTO) that is rooted in the production of externalities
that only highly proactive and politically legitimized strategies of global
governance could tackle.
Examples abound of the naturalization of the ethnocentricity that simply
precludes legal scholars from seeing macroscopic violations of genuine notions
of equality and the rule of law. Take, for example, the production of a toy.
Directives on products liability, developed in Europe under the clear influence
[*440] U.S. lawyers,
n236 contain one such hidden and technically motivated example of discriminating
ethnocentrism. A child that gets damaged by a toy within Europe can seek and
find redress in the law. Thousands of children who, during the process of
production of the very same toy, are poisoned and have their health ruined, can
seek no redress. Arbitrarily, the moment in which a product is considered for
the purpose of liability is the moment in which it is introduced in the Western
market, reaching the stage of the spectacle.
Many colleagues would argue that these are problems that go beyond the domain
of private law.
n237 Indeed, this is exactly my point. There is a need for a shift in mode of
thought, to escape traditional taxonomies and ideas. The Latin resistance
offers a reservoir of radically critical thinking that needs to be applied to
the legal discourse.
Most of the externalities, most of the social costs dumped in the backyard of
our weaker neighbors of the South, are created during the process of producing
commodities that are consumed mainly by the roughly 300 million people that
make up the European market.
n238 Such production is traditionally ignored by private law, concerned as it is
only with final outcomes. In economic terms, this simply introduces an
alternative. Either European consumers pay too little for their commodities
because their prices do not reflect the true social costs of production
(environmental damage, labor exploitation, and so forth) and European
capitalism is once again subsidized by former colonies,
n239 or multinational corporate logo-lords (mostly European, Japanese, and North
American) make unfair profits pocketing the value of such social costs.
n240 In both cases, such an economic reality should be a concern for the European
policymaker drafting the rules of the game. Unfortunately it is not, since the
rules of the game--in Europe and even more visibly in more remote areas of the
periphery--are de facto drafted by the international financial institutions.
Imperial law, and the post-modern, market-friendly ideology that it carries
with it, might already be precluding the construction of a European social
market as a counter-fire. The tremendous capacity of imperial law to introduce
discursive practices that depict legal production as pro-consumer, when it is
[*441] fact stimulated by the large international capital, is now beginning to be
n241 Europe is facing a number of constitutional moments.
n242 It is difficult to evaluate them because the spectacle makes options difficult
to distinguish. One can, however, see that some scholarly positions are
facilitating the final triumph of imperial law. Following the trend in the
Americanized legal landscape, without approaching the real issues of
externality control, only confirms Europe as a periphery of the economic
Empire. Whether resistance can be organized, and at what level, is more
difficult to tell.
XI. THE NEXT STAGE: FROM AMERICAN HEGEMONY TO
"EMPIRE" IN THE LAW
Major structural changes are occurring in the assertion of U.S. hegemony. To
begin with, the issue of territoriality has made itself dramatically felt,
n244 so that the very idea that the present phase in global legal consciousness is
that of a global Americanization has to be approached carefully. In this essay
I have suggested that American legal consciousness has permeated what is now a
dominant layer of the world legal systems: imperial law.
World interdependence has increased in the second half of the Twentieth
Century, the era corresponding with Americanization in the law. Boundaries of
knowledge, as well as of territory, have largely collapsed.
n245 In the law, a variety of modes of thought have always competed in history, so
that even when one speaks of French or German leadership characterizing the era
preceding World War II, some distinctions must be accounted for.
n246 When it comes to the
[*442] second half of the Twentieth Century, that of U.S. leadership, contaminations
appear even more clearly, so that one could argue that U.S. law is in fact the
outcome of the merger of the civil law and common law traditions, where traits
of originality can be kept visible only by means of some artificial effort.
There are at least two factors to be considered. Issues of resistance, both
technical and political, are enriching the picture. From the technical point of
view, legal cultures in the world can provide resistance, in the sense that
many local legal professionals simply do not have direct access to the American
n248 Many lawyers, even in the former center of the legal world, do not read
English language materials, so their perception of U.S. legal consciousness is,
at best, filtered.
Many non-American lawyers, imbedded in state-centric positivism, and drawing on
local notions of separation of power and political accountability (and
legitimacy), simply fail to imagine that certain things can be governed by
courts of law. This kind of resistance, sometimes called
"legal path dependency," can strongly limit the way in which the imperial layer of the law erodes local
legal sensitivity. Nevertheless, steps in the direction of developing stronger
courts of law are very visible throughout Europe and, as part of structural
adjustment programs, also through the more traditional periphery of the world.
n249 Captured by the Americanized legal discourse, the periphery of the world
attempts to upgrade its institutional setting in order to look as American as
possible by emulating the reactive models found in courts of law and academic
n250 Both these adjustments end up moving in the direction of what anthropologist
Laura Nader, linguist Noam Chomsky, and other critical thinkers have
significantly portrayed as an anti-international law movement unfolding in
present-day American law.
n251 It is the final assault of imperial law on all such
[*443] institutions of the nation-state that do not fit its profile favoring economic
hegemony and global corporate governance.
n252 Institutional discourses that claim the primacy of politics over law are
abandoned in favor of aspects that make economic power stronger than a legal
order. Scholars have detected this phenomenon in a variety of areas of U.S.
law, such as the so-called tort law reform, by which powerful corporate
defendants try to emasculate the plaintiffs' bar for fear of class actions and
punitive damages. Another example is the shift towards compulsory ADR and the
tremendous pressure to settle disputes with the goal of silencing victims of
abuse in the workplace or in the family.
In the academic domain, a very similar philosophy, labeled as an upgrading of
obsolete positivistic modes of thought, is visible in the creation of a strong
and prestigious conservative scholarly critique of the politically legitimate
sources of law. Such critique, in order to show the efficiency of
market-friendly reactive institutions (and of the common-law process) has
accused proactive institutions such as legislatures or administrative agencies
of being captured by lobbyists' money.
n254 This idea is orthodox in those U.S. law and economics circles that have been
able to gain major influence in framing the international financial
institutions' development plans for the Third World. It is by no means absent
in Europe today.
[*444] Imperial law copes with the resistance coming from legal path dependency by
producing a new generation of lawyers, cosmopolitan in their training and
exposed to the new institutional setting of imperial law, to substitute for the
old (path dependent and resisting) professionals in whatever project is
important to global capital.
n256 Dualism, discussed in the development literature devoted to the economics of
the Third World, is now a particularly useful notion in understanding changes
in the global legal profession.
n257 Local lawyers, incapable of expressing themselves in English, although often
more skilled and experienced than the emerging elite, are confined to an
increasingly shrinking local sector, dealing with the less important and
prestigious aspects of legal business. The increasing presence of transnational
law firms through the world is perfect evidence of such dualism, something that
limits the resisting impact of legal path dependency by incrementally reducing
its sphere of relevance. By penalizing the more senior members of the local
legal professions outside of the United States, the cultural and linguistic gap
is creating a real issue of access to law.
Imperial law penetrates worldwide, with its reactive philosophy, its rhetoric
of legality, and its practice of oppression.
n259 The current relationship between the Western legal tradition and contexts of
alternative legality (most notably but not limited to Islamic law) is a
fascinating example of the way in which legal Americanization is transformed
into legal Empire. The features of American law
[*445] that get incorporated into imperial law are the spectacular ones, and the
features that do not fit the spectacular picture are simply dismissed or
ignored as non-legal. American law is then ceasing to be a real legal system,
with a local history, local concerns, and local shames, concretely governing
the social relationships among the population living within its jurisdictional
boundaries. American law is instead transformed into a show and assumes an
eternally present imperial identity that puts it beyond the issue of
compatibility with possibly incompatible local contexts and circumstances.
Recent scholarship, in such different contexts as Latin America and China, has
denounced the strategy by which this imperial legal identity has been obtained.
Scholarship in the tradition of
"law and development" has constantly stressed the
"gap"--the lack of
"real law"--in Latin America.
n260 Developing on the idea of Orientalism as proposed by Edward Said, recent
scholarly accounts of general legal history, as well as of developments in
n261 have pointed out the process of de-legalization of non-western legal
traditions. This very same strategy of spectacular de-legalization of
alternative contexts of legality is even more visible in contexts whose
resistance to the
"integrated spectacle" is stronger and is perceived as more dangerous. The campaign for the promotion
of human rights and of woman's equality
n262 in Islamic societies, based on the one-sided and spectacular emphasis on a few
aberrant practices and episodes by means of extensive media coverage, is a
plain attempt to substitute local legal and political legitimacy with the
n263 Horrific episodes of brutality in the way in which the law is enforced and
applied are unfortunately common at the very center of the legal Empire.
The imperial ideal, as produced by the spectacular society, cannot be
challenged by historical accounts of political failures of any kind, whether
located at the center or at the periphery. Within the logic of the integrated
spectacle, to use the reality of the U.S. legal system as a way to challenge
the imperial ideal of
[*446] democracy and the rule of law makes no sense. It would be exactly the same
thing as attempting to challenge the suburban family dream of middle America as
it appears in the advertising of minivans, mortgage plans, or life insurance
policies by using the high rate of vicious divorce litigation or the miserable
conditions of dispossessed homeowners that have defaulted in paying the
What is the fate of political resistance, of counter-hegemonic forces within
this scenario? To be sure, one should be careful to distinguish the theory from
the practice. The generalized belief of the spectacular world seems to be that
military technology and violence will be able to defeat demography. We are
bound to be awakened from this denial. Demography has always overwhelmed
military technology, particularly when the distribution of resources that such
violence sustains is in the interest of the very few and makes the vast
majority very unhappy. In history, the rules of the game that favor the few
have always been changed, either incrementally or by means of revolution.
What I have labeled as the Latin resistance has been itself largely
incorporated into the show, geographically displaced and deeply transformed by
its acceptance and assimilation in the discursive practices of the mainstream
academy. The strategy used to reach this result has been once again that of
de-contextualization. Anybody who has learned a lesson from the need to use
context in order to make significant comparisons is able to see the existence
of an American Foucault different from the French Foucault, an American Gramsci
different from an Italian Gramsci, and an American Althusser different from a
French Althusser. The context of production is plainly ignored, so that, out of
context, what is left is only the spectacular side of any theory. The nature of
"grand theory" and of
"revolutionary practice" of the work of such thinkers has been almost entirely
[*447] cancelled by a variety of post-modernist discursive strategies able to go as
far as analyzing within one framework such radically different political
"neo-pragmatism" in law and economics and many of the second generation narratives of critical
Once assimilated by the context of reception (the American pluralist academic
discourse), and applied for the first time to the analysis of the (reactive)
legal institutions as they appear in the American receiving context, the Latin
resistance gets exported once again in the new and old periphery, deeply
transformed in political meaning and significantly de-radicalized. What use, if
any, the new radical elites in the periphery will be able to make of such
theories is an issue open for discussion.
Political radicalism and polarization are the foes of the show society, which
needs broad areas of relative social peace in order to further develop the
boundaries of the global unrestricted market. Attempts to change the course of
events, to protest and expose the
"natural evolution," that have led to the present state of imperial dualism are either demonized or
dismissed as naive. Whether genuine counter-hegemonic forces will be able to
modify the present path of imperial globalization with new forms of political
and economic struggle capable of re-asserting effective legal (and political)
control over unlimited exploitive patterns is an open question that is in
urgent need of an effective answer. The exploitation of the world commons is
rapidly approaching tragic outcomes.
n1 As a layer of the law, imperialism can be studied by methodologies such as
those invoking legal pluralism.
See generally Marco Guadagni,
Legal Pluralism, in THE NEW PALGRAVE: A DICTIONARY OF ECONOMICS AND THE LAW 542 (Peter Newman ed.,
1998) [hereinafter THE NEW PALGRAVE]. For a theory of legal pluralism in the
process of globalization, see F.G. Snyder,
Governing Globalization, in TRANSNATIONAL LEGAL PROCESSES: GLOBALIZATION AND POWER DISPARITIES 65 (Michael
Likosky ed., 2002) [hereinafter TRANSNATIONAL LEGAL PROCESSES].
n2 This essay will not discuss the kind of redistribution (in favor of the
winners) that is fostered by economic globalization and by its violent
re-structuring of capitalism. For the best recent discussion available on this
different kind of redistribution, see generally WILLIAM K. TABB, THE AMORAL
ELEPHANT: GLOBALIZATION AND THE STRUGGLE FOR SOCIAL JUSTICE IN THE TWENTY-FIRST
CENTURY (2001). Every deep transformation in processes of production through
history implies redistribution of wealth across social classes in favor of the
See KARL POLANY, THE GREAT TRANSFORMATION: THE POLITICAL AND ECONOMIC ORIGINS OF
OUR TIME (1944). In this essay, however, I will talk of redistribution in the
sense of favoring social solidarity, and therefore aimed at more equality.
n3 On this useful theoretical distinction, see Diego Lopez Medina, Comparative
Jurisprudence (2000) (unpublished J.S.D. dissertation, Harvard Law School) (on
file with author).
n4 Mirroring this phenomenon, new continental philosophical ideas were
incorporated and produced in the United States by 1969 with Jacques Derrida's
seminal lectures at Johns Hopkins University.
See generally JACQUES DERRIDA, MARGINS OF PHILOSOPHY (Alan Bass trans., Univ. of Chicago
Press 1982) (1972).
See generally 3 KARL MARX, CAPITAL: A CRITIQUE OF POLITICAL ECONOMY (David Fernbach trans.,
Penguin Books 1981) (1867).
n6 Comparativists are familiar with the discussion between Watson and Friedman on
whether law can correctly be perceived as a response to social needs. The basic
arguments for the opposite positions are set foreward in ALAN WATSON, LEGAL
TRANSPLANTS: AN APPROACH TO COMPARATIVE LAW (1974); W. FRIEDMANN, LAW IN
CHANGING SOCIETY (1959).
n7 The literature on legal transplants is now very extensive.
See, e.g., ALAN WATSON, LEGAL TRANSPLANTS: AN APPROACH TO COMPARATIVE LAW (1974).
n8 For a critical discussion, see ELISABETTA GRANDE, IMITAZIONE E DIRITTO:
IPOTESI SULLA CIRCOLAZIONE DEI MODELLI (2001).
See also MARTIN HEIDEGGER, THE QUESTION CONCERNING TECHNOLOGY AND OTHER ESSAYS 135, 153
(William Lovitt trans., 1977) (noting a similar pattern in his continental
Cf. WILLIAM I. ROBINSON, PROMOTING POLYARCHY: GLOBALIZATION, U.S. INTERVENTION,
AND HEGEMONY 21-25 (1996) (providing a similar methodology in political
See generally MICHAEL HARDT
& ANTONIO NEGRI, EMPIRE (2001) (developing and discussing the idea of imperial
See also MICHEL ALBERT, CAPITALISM VS. CAPITALISM: HOW AMERICA'S OBSESSION WITH
INDIVIDUAL ACHIEVEMENT AND SHORT-TERM PROFIT HAS LED IT TO THE BRINK OF
COLLAPSE 16 (Paul Haviland trans., 1993) (using the expression
"neo-American" economic model). For a discussion of Albert's theory as applied to legal
infra notes 199-203 and accompanying text.
See WILLIAM K. TABB,
supra note 2, at 17-22 (discussing the difference between political and economic
See generally FRANCIS FUKUYAMA, THE END OF HISTORY AND THE LAST MAN (1992) (introducing
successfully the fortunate, but highly misleading expression
"the end of history").
See Garrett Hardin,
The Tragedy of the Commons, 162 SCIENCE 1243, 1244 (1968).
See generally SUSAN GEORGE, REMETTRE LE OMC A SA PLACE (2001).
n15 Hegemony has been a key concept in Gramsci's reflections. It has been
developed, outside of any systematic effort, throughout his work.
See generally ANTONIO GRAMSCI, SELECTIONS FROM THE PRISON NOTEBOOKS OF ANTONIO GRAMSCI
& Geoffrey Nowell Smith eds.
& trans., 1971);
see also generally AN ANTONIO GRAMSCI READER: SELECTED WRITINGS, 1916-1935 (D. Forgacs ed., 1988)
(providing a good selection of Gramsci's work).
n16 LOUIS ALTHUSSER, LO STATO ED I SUOI APPARATI (1997).
See LOUIS ALTHUSSER, LENIN AND PHILOSOPHY AND OTHER ESSAYS (Ben Brewster trans.,
see also LOUIS ALTHUSSER
& E. BALIBAR, READING CAPITAL (1997) (discussing the full-fledged overtaking of
ideology as a class-specific device).
n18 MICHEL FOUCAULT, ARCHAEOLOGY OF KNOWLEDGE (Alan M. Sheridan Smith trans.,
Routledge 1989) (1972). The basic notions approached in the text, however, have
been developed throughout Foucault's massive scholarly production.
See generally, e.g., MICHEL FOUCAULT, THE FOUCAULT READER (Paul Rabinow ed., 1984).
n19 This transformation of the proletarian into a consumer not only updates but
also radically transforms the way in which Marxist theory works. Revolutionary
ideologist Luckacs's notions of
commodification, reification and, in particular,
contemplation are used by Debord to see how the once exploited proletarian and now consumer
is persuaded by the structure of the show of the existence of a
See GUY DEBORD, THE SOCIETY OF THE SPECTACLE 25 (Donald Nicholson-Smith trans.,
Zone Books 1995) (1977) (citing GEORG LUKACS, HISTORY AND CLASS CONSCIOUSNESS:
STUDIES IN MARXIST DIALECTICS (Rodney Livingstone trans., Merlin Press 1971)
n20 JEAN BAUDRILLARD, THE CONSUMER SOCIETY: MYTHS AND STRUCTURES 14-18 (Chris
Turner trans., Sage Publications 1998) (1970).
See supra note 9 and accompanying text.
See Sally Falk Moore,
An International Legal Regime and the Context of Conditionality, in TRANSNATIONAL LEGAL PROCESSES,
supra note 1, at 333 (describing the model also as
"context of conditionality").
supra note 7;
see also Rodolfo Sacco,
Legal Formants: A Dynamic Approach to Comparative Law,
39 AM. J. COMP. L. 343, 397-400 (1991) (introducing the notion of prestige); GRANDE,
supra note 8 (discussing the notion of prestige).
See Ugo Mattei,
Three Patterns of Law: Taxonomy and Change in the World's Legal Systems,
45 AM. J. COMP. L. 5 (1997) (explaining the rule of professional law) [hereinafter
Three Patterns of Law]; Ugo Mattei,
Why the Wind Changed: Intellectual Leadership in Western Law,
42 AM. J. COMP. L. 195 (1994) (explaining U.S. leadership).
See, e.g., OLIVIER ZUNZ, PERCHE IL SECOLO AMERICANO? [WHY THE AMERICAN CENTURY?] (2002);
see also, e.g., ERIC HOBSBAWM, AGE OF EXTREMES: THE SHORT TWENTIETH CENTURY, 1914-1991 15
See generally GIOVANNI ARRIGHI, THE LONG TWENTIETH CENTURY: MONEY, POWER, AND THE ORIGINS OF
OUR TIMES (1994).
Marbury v. Madison, 5 U.S. 137, 178 (1803).
n27 ALEXIS DE TOCQUEVILLE, DEMOCRACY IN AMERICA, (Richard D. Heffner ed., Signet
Classic 2001) (1956). Very recently, an important book has discussed
"adversarial legalism," something similar to my idea of
"reactive institutional setting," as the
"American way of law."
See ROBERT A. KAGAN, ADVERSARIAL LEGALISM: THE AMERICAN WAY OF LAW (2001). Kagan's
work builds and expands, beyond the limits of procedure, important and
influential ideas set forward in comparative law by Damaska some time ago.
See MIRJAN R. DAMASKA, THE FACES OF JUSTICE AND STATE AUTHORITY: A COMPARATIVE
APPROACH TO THE LEGAL PROCESS 73-80 (1986). My arguments carry the point
"reactive way" cannot be seen as a mere feature of American law, but is actually the
fundamental philosophy of globalization that, as a new layer of legal systems
forms worldwide, pushes for a complex variety of processes of privatization of
the legal system.
See Rachel E. Barkow,
More Supreme than Court? The Fall of the Political Question Doctrine and the
Rise of Judicial Supremacy,
102 COLUM. L. REV. 237 (2002).
See generally Michael J. Klarman,
Bush v. Gore Through the Lens of Constitutional History,
89 CAL L. REV. 1721 (2001) (providing a discussion of the decision in light of legal history); 65 LAW
& CONTEMP. PROBS. 1-95 (2002) (providing a general discussion by several
See generally JOSEPH J. ELLIS, FOUNDING BROTHERS: THE REVOLUTIONARY GENERATION (2002)
(providing a recent, fascinating discussion of the credo and ideology of the
infra Part VII.
See Wolfgang Wiegand,
The Reception of American Law in Europe,
39 AM. J. COMP. L. 229, 233-35 (1991).
See RUDOLF B. SCHLESINGER ET AL., COMPARATIVE LAW 428, 448 (6th ed. 1998).
n33 On discovery and
"fishing expeditions" as spectacular practices resented in Europe, see the discussion
infra notes 150-51 and accompanying text.
See GLOBALIZATIONS AND SOCIAL MOVEMENTS: CULTURE, POWER, AND THE TRANSNATIONAL
PUBLIC SPHERE (John A. Guidry et al. eds., 2000);
see also Duncan Kennedy,
Three Globalizations (January 2003) (paper delivered at the Harvard Globalization Symposium,
forthcoming on Suffolk University Law Review) (discussing political ambiguity
as an explanation for worldwide success of a legal pattern).
See LUCIANO CANFORA, CRITICA DELLA RETORICA DEMOCRATICA (2002);
see also EDOARDO RUFFINI, LA RAGIONE DEI PIU: RICERCHE SULLA STORIA DEL PRINCIPIO
MAGGIORITARIO (1977); H. SUMNER MAINE, ETUDES SUR L'HISTOIRE DES INSTITUTIONS
PRIMITIVES (Ernest Thorin ed., 1880).
See JEAN PHILIPPE MATHY, EXTREME OCCIDENT: FRENCH INTELLECTUALS AND AMERICA (1993).
n37 Richard Falk,
Re-framing the Legal Agenda of World Order in the Course of a Turbulent
Century, in TRANSNATIONAL LEGAL PROCESSES,
supra note 1, at 355, 369.
See SAMUEL P. HUNTINGTON, THE CLASH OF CIVILIZATIONS AND THE REMAKING OF WORLD
ORDER (1996) (discussing the construction of a new confrontation, substituting
Islamism for the Cold War);
cf. MICHEL FOUCAULT, POLITICS, PHILOSOPHY, CULTURE, AND OTHER WRITINGS (1988)
(providing a similar idea from a post-structuralist perspective).
n39 The shift of leftist paradigms to notions compatible with the official dogma
of neo-liberalism is usually associated with Toni Blair's New Labour. For the
intellectual rationalization of this evolution, see A. GIDDENS, THE THIRD WAY:
THE RENEWAL OF SOCIAL DEMOCRACY (1998). The consequences of refusal to adapt to
the new post-Cold War economic policy are best appreciated by considering the
forced resignation of Chancellor Oskar Lafontaine in 1998, substituted by the
"new leftist" paradigm of Chancellor Schroeder for the same party.
supra note 37, at page 370 n.51.
n40 GUI DEBORD, COMMENTARI ALLA SOCIETA DELLO SPETTACOLO [COMMENTS ON THE SOCIETY
OF THE SPECTACLE] (Malcolm Imrie trans., Verso Books 1998) (1997).
n41 Factors of resistance against the Soviet empire, such as religion in many of
its Islamic provinces and the Afghanistan war, readily turned into a Soviet
Vietnam, also account for the final collapse.
See BRUNO BONGIOVANNI, STORIA DELLA GUERRA FREDDA (2001) (emphasizing notions of
terror balance and containment as key realist notions in Cold War international
See generally FROM COLD WAR TO COLLAPSE: THEORY AND WORLD POLITICS IN THE 1980S (Mike Bowker
& Robin Brown eds., 1993).
See generally The Great Globalization Debate: An Introduction, in THE GLOBAL TRANSFORMATIONS READER: AN INTRODUCTION TO THE GLOBALIZATION DEBATE
& Anthony McGrew eds., 2000) [hereinafter THE GLOBAL TRANSFORMATIONS READER].
n43 This mental framework is reflected by
"realist" paradigms in international law.
supra note 37, at 357.
See John Gray,
The Passing of Social Democracy, in THE GLOBAL TRANSFORMATION READER,
supra note 42, at 328.
n45 Communist candidate Ziuganov's chances of victory were addressed by
international advisors through the creation of a nationalist leader, General
See Linda Bosniak,
Critical Reflections on
"Citizenship" as a Progressive Aspiration, in LABOUR LAW IN AN ERA OF GLOBALIZATION: TRANSFORMATIVE PRACTICES AND
POSSIBILITIES 339, 342 (Joanne Conaghan et al. eds., 2002) (noting that illegal
immigrants are treated as
"second class citizens");
see also C. Joppke,
Sovereignty and Citizenship in a World of Migration, in TRANSNATIONAL LEGAL PROCESSES,
supra note 1, at 259.
See SEAN D. MURPHY, HUMANITARIAN INTERVENTION: THE UNITED NATIONS IN AN EVOLVING
WORLD ORDER 182-243 (1996).
n48 Given that illegality is the rule rather than the exception, the tight
language of the U.N. Charter outlawing aggressive war has always been
considered utopian and unrealistic.
See, e.g., WALTER MILLIS
& JAMES REAL, THE ABOLITION OF WAR (1963); GRENVILLE CLARK
& LOUIS B. SOHN, WORLD PEACE THROUGH WORLD LAW (3d ed.1966); RICHARD A. FALK, A
STUDY OF FUTURE WORLDS (1975).
n49 This is the case in Somaliland and Puntland State (both recently singled out
by the Bush administration, however, as potential targets for anti-terrorism
See Ugo Mattei,
Patterns of African Constitution in the Making, in TRANSNATIONAL LEGAL PROCESSES,
supra note 1, at 275, 282 (regarding the situation in Puntland).
n50 For a taxonomy of legal systems based on a distinction between the rule of
professional law, rule of political law, and rule of traditional law, see
Three Patterns of Law, supra note 24.
n51 Islamic law has been a successful provider of
"public goods" such as security, charity, and education in many places where the Western
notion of State simply failed.
See Ugo Mattei,
Foreign Inspired Courts as Agencies of Peace in Troubled Societies: A Plea for
Realism and for Creativity, 2 GLOBAL JURIST 1 (2002),
See generally GIANNANTONIO A. BENACCHIO, LA CIRCOLAZIONE DEI MODELLI GIURIDICI TRA GLI SLAVI
DEL SUD: SLOVENI, CROATI, SERBI (1995).
See generally Mattei,
supra note 51.
n54 NOAM CHOMSKY, THE NEW MILITARY HUMANISM: LESSONS FROM KOSOVO 1-80 (1999)
(critiquing this attitude);
see also Falk,
supra note 37. On the dangers of such a double standard for the role of
international leadership, see TORBJ [empty set] RN L. KNUTSEN, THE RISE AND
FALL OF WORLD ORDERS (1999).
See generally ROBERT HARVEY, THE RETURN OF THE STRONG: THE DRIFT TO GLOBAL DISORDER (1995);
see also generally JAMES MAYALL, THE NEW INTERVENTIONISM 1991-1994: UNITED NATIONS EXPERIENCE IN
CAMBODIA, FORMER YUGOSLAVIA, AND SOMALIA (1996).
See A. MARK WEISBURD, USE OF FORCE: THE PRACTICE OF STATES SINCE WORLD WAR II
See Edward N. Luttwak,
Give War a Chance, 78 FOREIGN AFF. 36 (1999) (espousing an extreme position on the right).
See generally JOSEPH S. NYE, BOUND TO LEAD: THE CHANGING NATURE OF AMERICAN POWER (1990).
See Thomas M. Franck,
Clan and Superclan: Loyalty, Identity and Community in Law and Practice,
90 AM. J. INT'L L. 359 (1996).
supra note 37, at 357 (discussing
"the self serving acceptance by policymakers of some variant of realism as the
proper mode of thought pertaining to international relations").
See MICHAEL WALZER, JUST AND UNJUST WARS: A MORAL ARGUMENT WITH HISTORICAL
ILLUSTRATIONS 318 (1998);
see also HARD CHOICES: MORAL DILEMMAS IN HUMANITARIAN INTERVENTION (Jonathan Moore ed.,
See Richard Falk,
The Quest for Human Rights in an Era of Globalization, in FUTURE MULTILATERALISM: THE POLITICAL AND SOCIAL FRAMEWORK 153, 157 (Michael
G. Schechter ed., 1999).
See HEDLEY BULL, THE ANARCHICAL SOCIETY: A STUDY OF ORDER IN WORLD POLITICS (1977).
n64 See M. CHERIF BASSIOUNI
& PETER MANIKAS, THE LAW OF THE INTERNATIONAL CRIMINAL TRIBUNAL FOR THE FORMER
See generally RICHARD FALK, LAW IN AN EMERGING GLOBAL VILLAGE: A POST-WESTPHALIAN
See generally BEYOND WESTPHALIA? STATE SOVEREIGNTY AND INTERNATIONAL INTERVENTION (Gene M.
& Michael Mastanduno eds., 1995);
see also STEPHEN D. KRASNER, SOVEREIGNTY: ORGANIZED HYPOCRISY (1999) (United
States-centric critique of sovereignty); NOAM CHOMSKY, ROGUE STATES: THE RULE
OF FORCE IN WORLD AFFAIRS 11, 124-55 (2000) (discussing the dangers of looking
at the United States as a normative leader in international law).
n67 The pluralistic framework has been recently proposed to address issues of
supra note 1.
See generally Falk,
supra note 37.
n69 Even in the U.S. the movement has been more or less benevolently criticized
from a variety of perspectives.
See, e.g., Ellen Messer,
Anthropology and Human Rights, 22 ANN. REV. ANTHROPOLOGY 221 (1993) (surveying the (Anglophone)
see also Celina Romany,
State Responsibility Goes Private: A Feminist Critique of the Public/Private
Distinction in International Human Rights Law, in HUMAN RIGHTS OF WOMEN: NATIONAL AND INTERNATIONAL PERSPECTIVES 85 (Rebecca J.
Cook ed., 1994).
See, e.g., L. Amede Obiora,
Bridges and Barricades: Rethinking Polemics and Intransigence in the Campaign
Against Female Circumcision,
47 CASE W. RES. L. REV. 275 (1997).
See generally, BOAVENTURA DE SOUSA SANTOS, TOWARD A NEW COMMON SENSE: LAW, SCIENCE AND
POLITICS IN THE PARADIGMATIC TRANSITION (1995).
See generally RICHARD FALK, PREDATORY GLOBALIZATION: A CRITIQUE (1999).
See MARC FERRO, COLONIZATION: A GLOBAL HISTORY (1997)
See generally P. Hirst, and G. Thompson,
Globalization and the History of the International Economy, in THE GLOBAL TRANSFORMATION READER,
supra note 42, at 274-86;
see also generally WILLIAM ROBINSON, PROMOTING POLYARCHY--GLOBALIZATION, U.S. INTERVENTION AND
supra note 10, at 17-20; Robert W. Cox,
Gramsci, Hegemony and International Relations: An Essay in Method, 12 J. INT'L STUD. 162, 172 (1983).
n75 On ideology, as with false consciousness, the classic is still KARL MARX
& FRIEDRICH ENGELS, L'IDEOLOGIA TEDESCA (1958).
n76 It might also be rhetoric such as that used in the title of Nye's book,
"Bound to Lead."
supra note 58. The question naturally rises: Who is binding whom?
See Maxwell O. Chibundu,
Globalizing the Rule of Law: Some Thoughts at and on the Periphery,
7 IND. J. GLOBAL LEGAL STUD. 79 (1999).
n78 See, for a discussion on the theory and practice of Sovereign Immunity, K.
Sovreign Immunity as a doctrine of Personal Jurisdiction,
115 HARV. L. REV. 1561 (2002).
See Harris Institute for Global Legal Studies,
Should the United States Ratify the Treaty Establishing the International
Criminal Court? (International Debate Series, 2002) (providing competing views for and against
supporting the International Criminal Court).
See generally DAVID S. LANDES, THE UNBOUND PROMETHEUS: TECHNOLOGICAL CHANGE AND INDUSTRIAL
DEVELOPMENT IN WESTERN EUROPE FROM 1750 TO THE PRESENT (1969);
see also generally FREDERICK M. ABBOTT
& DAVID J. GERBER, PUBLIC POLICY AND GLOBAL TECHNOLOGICAL INTEGRATION (1997).
n81 There is abundant talk about the
"American comparative advantage in technology" as a legitimating strategy. For a brilliant critical discussion with reference
to many such hegemonic strategies, see Ruth Gana Okediji,
Copyright and Public Welfare in Global Perspective,
7 IND. J. GLOBAL LEGAL STUD. 117, 119 (1999).
See ARJUN APPADURAI, MODERNITY AT LARGE: CULTURAL DIMENSIONS OF GLOBALIZATION
See Ngaire Woods,
Order, Globalization and Inequality in World Politics, in THE GLOBAL TRANSFORMATIONS READER,
supra note 42, at 387, 389.
n84 This is a phenomenon that is by no means a novelty.
See generally DANIEL R. HEADRICK, THE TOOLS OF EMPIRE: TECHNOLOGY AND EUROPEAN IMPERIALISM
IN THE NINETEENTH CENTURY (1981).
See Keith Aoki,
Neocolonialism, Anticommons Property, and Biopiracy in the (Not-So-Brave) New
World Order of International Intellectual Property Protection,
6 IND. J. GLOBAL LEGAL STUD. 11 (1998).
n86 For a critique, see UGO MATTEI, COMPARATIVE LAW AND ECONOMICS (1997). The
hegemonic consequence of this intellectual cast is stressed by Okediji,
supra note 81, at 147-51 (particularly in recent years, the pervasive ideology of
liberalized or free trade cast intellectual property protection as a primary
factor in penetrating foreign markets and reestablishing U.S. dominance in the
supra note 83, at 389.
See generally Lawrence Lessig,
The Architecture of Innovation,
51 DUKE L.J. 1783 (2002).
See generally MICHAEL BLAKENEY, TRADE RELATED ASPECTS OF INTELLECTUAL PROPERTY RIGHTS: A
CONCISE GUIDE TO THE TRIPS AGREEMENTS (1996).
n89 For example, the territorial notions of statehood and sovereignty in Kuwait,
such as those proclaimed and defended for the last time during the Persian Gulf
War (and those that have been forgotten by NATO during the Bosnia strikes), are
certainly weakened by the universalistic, non-territorial philosophy that
justifies intellectual property as a prize for technological creativity. Why
should territorial Gulf and African States own the oil that happens to be
within their territorial borders? Why should oil worldwide not be allocated as
a prize for the skills in extracting and using it as a source of energy? State
territorial sovereignty should yield to the global needs of humankind as
interpreted by the global economy.
n90 Notice that the major South African defeat of imperialistic notions of
intellectual property in South Africa happened within a
"group oriented" cultural model, in which individualistic ideology is less capable of
See Kevin D. Brown,
Globalization and Cultural Conflict in Developing Countries: The South African
7 IND. J. GLOBAL LEGAL STUD. 225, 252 (1999).
supra note 39, at 55.
Id. at 57.
Id. at 56.
Id. at 172.
Id. at 55.
Id. at 74.
n97 Deleuze and Guattari play extensively with notions of in context and out of
See generally GILLES DELEUZE
& FELIX GUATTARI, ANTI-OEDIPUS: CAPITALISM
& SCHIZOPHRENIA (Robert Hurley et al. trans., Univ. of Minn. Press 1983) (1972)
(offering classic discussions in different contexts) [hereinafter
ANTI-OEDIPUS]; GILLES DELEUZE
& FELIX GUATTARI, MILLE PLATEAUX: CAPITALISME ET SCHIZOPHRENIE (1980);
see also DAVID HARVEY, THE CONDITION OF POSTMODERNITY: AN ENQUIRY INTO THE ORIGINS OF
CULTURAL CHANGE (1989).
n98 This concept of
"play" is an unmistakably deconstructive gesture.
See generally JACQUES DERRIDA, WRITING AND DIFFERENCE (Alan Bass trans., Univ. of Chicago
Press 1978) (1972); JACQUES DERRIDA, MARGINS OF PHILOSOPHY (Alan Bass trans.,
Univ. of Chicago Press 1972).
See generally LINUS TORVALDS
& DAVID DIAMOND, JUST FOR FUN: THE STORY OF AN ACCIDENTAL REVOLUTIONARY (2001)
(explaining the history of the development of Linux and open source platforms);
see also generally GLYN MOODY, REBEL CODE: THE INSIDE STORY OF LINUX AND THE OPEN SOURCE
Eldred v. Reno, 239 F.3d 372 (D.C. Cir. 2001),
cert. granted sub nom.
Eldred v. Ashcroft, 534 U.S. 1126, 122 S. Ct. 1062 (2002).
supra note 8;
see also Pier Giuseppe Monateri
& F.A. Chiaves,
Shifting Frames: Law and Legal
"Contaminations," in INTRODUCTION TO ITALIAN LAW 21 (Jeffrey Lena
& Ugo Mattei eds., 2002).
n102 Considering the law as a mechanical commodity that can be imported or exported
like a television set or a Land Rover is also a strategy of governance.
See Ugo Mattei,
Legal Transplants, Legal Pluralism and Economic Development, in NEW LAWS FOR NEW STATES (L. Favali et al. eds., 1999);
see also LAURA NADER, THE LIFE OF THE LAW: ANTHROPOLOGICAL PROJECTS (2002).
See generally Mathias Reimann,
Droit positif et culture juridique: L'americanisation du droit europeen par
reception, 45 ARCHIVES DE PHILOSOPHIE DU DROIT 61 (2001) (discussing Americanization as
a change of mentality).
n104 This important notion is introduced by Medina,
supra note 3.
See, e.g., Mathias Reimann,
Towards a European Civil Code: Why Continental Jurists Should Consult Their
73 TUL. L. REV. 1337 (1999);
see also MARIA ROSARIA FERRARESE, LE ISTITUZIONI DELLA GLOBALIZZAZIONE: DIRITTO E
DIRITTI NELLA SOCIETA TRANSNAZIONALE (2001) (discussing the legal institutions
See generally Sacco,
supra note 23.
Cf. generally M. W. HESSELINK, THE NEW EUROPEAN LEGAL CULTURE (2001) (discussing changes in
current private law thinking in Europe).
See also Reimann,
supra note 103 (indicating a more nuanced position).
See generally Bernard Black
& Reinier Kraakman,
A Self Enforcing Model of Corporate Law,
109 HARV. L. REV. 1911 (1996).
See generally HENRY M. HART
& ALBERT M. SACKS, THE LEGAL PROCESS (1994) (reviving attention to the legal
process school of thought);
see also generally NEIL K. KOMESAR, IMPERFECT ALTERNATIVES: CHOOSING INSTITUTIONS IN LAW,
ECONOMICS, AND PUBLIC POLICY (1994) (discussing the merger of legal process
theory and law and economics). Predating the legal process school, the roots of
both legal formalism and legal realism can be traced to Europe.
supra note 34.
See generally RICHARD H. FALLON ET AL., THE FEDERAL COURTS AND THE FEDERAL SYSTEM (4th ed.
1996) (discussing the other
"classic" of the legal process school);
see also generally Akhil Reed Amar,
102 HARV. L. REV. 688 (1989) (reviewing RICHARD H. FALLON ET AL., THE FEDERAL COURTS AND THE FEDERAL SYSTEM
(3rd ed. 1988)).
See Carlo Augusto Cannata
& Antonio Gambaro, 2 LINEAMENTI DI STORIA DELLA GIURISPRUDENZA EUROPEA: DAL
MEDIOEVO ALL'EPOCA CONTEMPORANEA (4th ed. 1989).
See generally GRANT GILMORE, THE AGES OF AMERICAN LAW (1977); BRUCE A. ACKERMAN,
RECONSTRUCTING AMERICAN LAW 105-10 (1984) (appraising the realist hegemony in
n113 Ugo Mattei
& Alberto Monti,
Comparative Law and Economics: Borrowing and Resistance, in 1 GLOBAL JURIST FRONTIERS (2001),
See generally Duncan Kennedy,
Law and Economics from the Perspective of Critical Legal Studies, in THE NEW PALGRAVE,
supra note 1, at 465.
See generally F. Pulitini,
Appunti sull' analisi economica del diritto, 1 MERCATO CONCORRENZA E REGOLE (forthcoming 2003) (critical appraisal by an
early Italian scholar of law and economics of the opportunity to consider
Chicago and other brands of Law and Economics as movements sharing enough
communalities to be approached within a unitary taxonomic scheme).
See generally GARY MINDA, POSTMODERN LEGAL MOVEMENTS: LAW AND JURISPRUDENCE AT CENTURY'S END
see also generally STEPHEN M. FELDMAN, AMERICAN LEGAL THOUGHT FROM PREMODERNISM TO POSTMODERNISM:
AN INTELLECTUAL VOYAGE (2000); NICHOLAS MERCURO
& STEVEN G. MEDEMA, ECONOMICS AND THE LAW: FROM POSNER TO POST-MODERNISM (1997).
See generally Robert D. Cooter,
Law and the Imperialism of Economics: An Introduction to the Economic Analysis
of Law and a Review of the Major Books,
29 UCLA L. REV. 1260 (1982).
See generally Herbert Wechsler,
Toward Neutral Principles of Constitutional Law,
73 HARV. L. REV. 1 (1959) (advocating judicial review after careful evaluation of other possible
solutions to the issue at hand).
supra note 10, at xi-xii (defining Empire as the political subject that regulates
global markets and global circuits of production).
supra note 9.
See generally Mathias Reimann,
Beyond National Systems: A Comparative Law for the International Age,
75 TUL. L. REV. 1103 (2001).
supra note 10, at 151.
n123 Ugo Mattei
& Anna di Robilant,
The Art and Science of Critical Scholarship: Postmodernism and International
Style in the Legal Architecture of Europe,
75 TUL. L. REV. 1053, 1085-86 (2001).
See generally JAMES A. GARDNER, LEGAL IMPERIALISM: AMERICAN LAWYERS AND FOREIGN AID IN LATIN
AMERICA (1980) (analyzing and critiquing American legal assistance in the
developing world with special emphasis on Latin America);
see also generally David M. Trubek
& Marc Galanter,
Scholars in Self-Estrangement: Some Reflections on the Crisis in Law and
Development Studies in the United States,
1974 WIS. L. REV. 1062 (1975) (examining the relationship between the legal system and the social, economic,
and political changes occurring in Third World countries).
supra note 107;
see also text accompanying notes 107-15.
See Anna di Robilant,
Globalization of the Social? An Italian Counter-Fire, 11 EUR. REV. PRIVATE L. (forthcoming) (noting the importance of the
"social achievements" of the European legal tradition such as the
"social function" of property rights that has been abandoned in the socially inspired European
Charter of Rights).
See generally ANDREA MANZELLA, RISCRIVERE I DIRITTI IN EUROPA: LA CARTA DEI DIRITTI
FONDAMENTALI DELL'UNIONE EUROPEA (2001).
n127 For an account of the early reception of law and economics in Europe, see
& J. Gordley,
Economic Analysis in Civil Law Countries: Past, Present, Future, 11 INT'L REV L.
& ECON 261 (1991).
n128 Among the important contributions, see Horatia Muir Watt,
La Fonction Subversive du Droit Compare, 52 REVUE INTERNATIONALE DE DROIT COMPARE 503 (2000); HESSELINK,
supra note 107; P.G. Monateri,
Black Gaius: A Quest for the Multicultural Origins of the
"Western Legal Tradition",
51 HASTINGS L.J. 479 (2000); Mauro Bussani,
Choix et Defis de L'hermeneutique Juridique Notes Minimes, 50 REVUE INTERNATIONALE DE DROIT COMPARE 735 (1998); GRANDE,
supra note 8.
See Symposyum: Critical Legal Studies in Europe, 9 EUR REV. PRIVATE L. (2001); Elisabetta Grande,
Introduction to LAURA NADER, LE FORZE VIVE DEL DIRITTO (2002).
See DIRITTO, GIUSTIZIA E INTERPRETAZIONE (Jacques Derrida
& Gianni Vattimo eds., 1998).
n131 The idea of a subversive function of comparative law has been advanced by
See generally George P. Fletcher,
Comparative Law as a Subversive Discipline, 46 AM. J. COMP. LAW 683 (1998). This approach attempts to create a potential
"new-global" way of thinking about the law stemming from a Latin (or more generally
Mediterranean) resistance to the status quo and incrementally transforming it
into an effective counter-hegemonic force. Whether this is a reality or only
the projection of the present author is an open question. Nevertheless, some
common patterns of analysis are emerging and they certainly include the
relentless critique of universalizing human rights approaches, the constant
attention to minority jurisdictions, the de-legitimization of the leading
Euro-American focus of comparative legal and political analysis, the issue of
linguistic diversity, the struggle against arrogance and chauvinism in legal
scholarship, and the constant effort to expose hidden assumptions able to
"a second nature" and capable of hiding political choices behind technocratic skills. Similarly,
a call for subversive practice is a dominant theme in continental philosophy.
See generally MARTIN HEIDEGGER, BASIC WRITINGS: FROM BEING AND TIME (1927 TO THE TASK OF
THINKING) (David Farrell Krell ed., 1977) (1964).
See generally THE GLOBAL EXPANSION OF JUDICIAL POWER (C. Neal Tate
& Torbjorn Vallinder eds., 1995).
n133 The date of birth of the American inspired legal globalization is after World
War II's aftermath.
Why the Wind Changed, supra note 24; Kennedy,
supra note 34.
See DE TOCQUEVILLE,
supra note 27.
supra note 34.
See generally ANTONIO CASSESE, VIOLENCE AND LAW IN THE MODERN AGE (1988).
See also generally David Held,
International Law, in THE GLOBAL TRANSFORMATIONS READER,
supra note 42, at 167.
n137 The following section is based on my previous work with Jeffrey Lena.
See Ugo Mattei
& Jeffrey S. Lena,
United States Jurisdiction over Conflicts Arising Outside of the United States:
Some Hegemonic Implications, 1 GLOBAL JURIST TOPICS (2001),
n138 Two studies under the direction of Stuart Eizenstat focused public attention
on the issue and added political pressure to reach settlements in many of the
cases brought. STUART EIZENSTAT
& WILLIAM Z. SLANY, U.S. AND ALLIED EFFORTS TO RECOVER AND RESTORE GOLD AND
OTHER ASSETS STOLEN OR HIDDEN BY GERMANY DURING WORLD WAR II: PRELIMINARY STUDY
available at http://www.ess.uwe.ac.uk/documents/asetindx.htm; STUART EIZENSTAT
& WILLIAM Z. SLANY, U.S. AND ALLIED WARTIME AND POSTWAR RELATIONS AND
NEGOTIATIONS WITH ARGENTINA, PORTUGAL, SPAIN, SWEDEN, AND TURKEY ON LOOTED GOLD
AND GERMAN EXTERNAL ASSETS AND U.S. CONCERNS ABOUT THE FATE OF THE WARTIME
USTASHA TREASURY (1998).
n139 A substantial amount of literature has emerged on the question.
See, e.g., RICHARD Z. CHESNOFF, PACK OF THIEVES: HOW HITLER AND EUROPE PLUNDERED THE
JEWS AND COMMITTED THE GREATEST THEFT IN HISTORY (1999); MARK AARONS
& JOHN LOFTUS, UNHOLY TRINITY: HOW THE VATICAN'S NAZI NETWORKS BETRAYED WESTERN
INTELLIGENCE TO THE SOVIETS (1992).
n140 The logic behind the federal courts taking original jurisdiction over these
matters was to ensure that the matters would be heard, to the greatest extent
possible, in federal as opposed to state courts, on the theory that the federal
sovereign, having been vested with sole power over foreign relations, should
also have jurisdiction over matters concerning the law of nations. This
effectively limited state court jurisdiction, which was in all respects not
limited by the federal Constitution.
630 F.2d 876 (2d Cir. 1980).
n142 This, of course was not a new idea.
United States v. Smith, 18 U.S. 153, 161 (1820) ("The common law . . . recognises and punishes piracy as an offence, not against
its own municipal code, but as an offence against the law of nations. . . ."). The development is described in JORDAN J. PAUST, INTERNATIONAL LAW AS LAW OF
THE UNITED STATES (1996).
n143 One of the reasons that the use of international law as a basis for asserting
claims under Federal Common Law was slow to develop was that general consensus
as to what might be considered a violation of a jus cogens norm only developed
in the second half of the Twentieth Century.
Iwanowa v. Ford Motor Co., 67 F. Supp. 2d 424, 439-40 (D.N.J. 1999) (describing the growing consensus as to what constitutes a violation of a jus
RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW §§ 102(2), 702 (1986).
454 U.S. 235 (1981).
See Michael J. Bazyler,
Nuremberg in America: Litigating the Holocaust in United States Courts,
34 U. RICH. L. REV. 1 (2000) (detailing the various holocaust cases from the plaintiff's perspective).
n146 From another perspective it may be noted that not uncommonly plaintiffs are
persons who were once citizens of some European country and subsequently became
U.S. citizens. Like any country's courts, U.S. courts would like to offer a
forum to their own citizens. This does not change the fact, however, that the
events themselves took place generations ago, on another continent, when the
plaintiff was the citizen of another country.
n147 For example, the disputes that arose during the Evidence Convention
negotiations at the Hague Conference of Private International law. The best and
most accessible discussion of this remains SCHLESINGER ET AL.,
supra note 32, at 470-75.
n148 Stern v. Assicurazioni Generali S.p.A., (No. BC 185376) (California State
Court insurance claim filed in 1999) (Jurisdiction asserted, after which the
case was settled);
Bodner v. Banque Paribas, 114 F. Supp. 2d 117 (E.D.N.Y. 2000) (motion to dismiss in bank account case on standing, comity, and statute of
limitations grounds denied and case allowed to proceed);
Altmann v. Republic of Austria, 142 F. Supp. 2d 1187 (C.D.Cal. 2001) (court denied motion to dismiss on grounds of full sovereign immunity).
"Motion to Dismiss" in United States Federal Procedure occurs at an initial stage of the
litigation in which defendants may raise a number of initial defenses
including: statute of limitations, failure to state a claim,
non-justiciability, comity, lack of standing to sue, lack of subject matter
jurisdiction, lack of personal jurisdiction, and others under
Federal Rule of Civil Procedure 12 (Rule 12). State Courts, though they do not follow the Federal Rules, have
similar procedural mechanisms for challenging plaintiffs' claims. Rule 12
motions can be brought successively as the case develops. So, for example,
where a first motion to dismiss for lack of subject matter jurisdiction fails,
if additional facts develop indicating that the court does not have subject
matter jurisdiction over the claim, that defense may be reasserted.
n150 Presently the federal
"default" discovery rules provide that the parties must exchange relevant merits-related
documents at the outset of the proceedings; where jurisdictional defenses are
raised, however, defendants may seek relief from such initial document exchange.
FED. R. CIV. P. 26.
n152 In the so-called
"fairness hearings" under
FED. R. CIV. P. 23(e), courts are required to determine whether the compensation of class action
attorneys is a fair and reasonable sum. While the typical contingent fee is
thirty percent before trial and forty percent after trial, compensation to
attorneys in the holocaust litigation has hovered between one and three
percent. Such compensation has been approved as
"fair" as far as we can determine. There is no question, on the other hand, that the
exposure engendered by these cases is surely beneficial to acquiring future
See LINDA S. MULLENIX, MASS TORT LITIGATION 671-711 (1996).
n154 See, for a pro-defendant perspective, STEPHEN SUGARMAN, DOING AWAY WITH
PERSONAL INJURY LAW (1989); PETERW. HUBER, LIABILITY: THE LEGAL REVOLUTION AND
ITS CONSEQUENCES (1988). Overgenerosity of the jury in favor of plaintiffs is
one of the main indictments of the present tort system.
See generally LAURA NADER, THE LIFE OF THE LAW: ANTHROPOLOGICAL PROJECTS (2002). Throughout
this book but particularly in the last chapter,
"The Plaintiff: A User Theory," Nader fundamentally challenges the soundness of these critiques and points at
their ideological nature.
n155 The idea that only courts can vindicate rights is based on an idea that
naturalizes the American institutional (reactive) setting. The argument works
on the assumption that proactive institutions such as administrative agencies
and other apparatuses, grounded in thick conceptions of the State, simply
cannot effectively protect holocaust victims, the environment, or monitor the
pharmaceutical business. But indeed administrative protection has proven
effective in environmental law, and it can be much less expensive to deal with
these problems proactively than to approach them in the adversarial posture of
See EUGEN F. SCOLES ET AL., CONFLICT OF LAWS 68-102 (3d ed. 2000).
See id. at 538.
n158 The U.S. record regarding human rights is very poor from the European
perspective. The death penalty and the Guantanamo cages are icons of such
double standards. Moreover, the Florida recount saga makes it difficult for
U.S. observers to press for fair elections worldwide.
See generally NADER,
supra note 154.
n160 This section is based on Ugo Mattei,
Hard Code Now!, 2 GLOBAL JURIST FRONTIERS (2002),
n161 The variety of channels by which the very same pressure groups that affect WTO
legislation are also effective at the European level in drafting self-serving
law is exposed by GEORGE,
supra note 14.
See also Alessandro Somma,
Tutte le strade portano al Fiume. L' involuzione liberista del diritto
comunitario, in RIVISA CRITICA DEL DIRITTO PRIVATO 263 (2002).
See SCHLESINGER ET AL.,
supra note 32, at 251-53. Much of newly enacted European economic legislation, from
corporate governance to antitrust, shows the impressive impact of
Americanization. These fundamental developments in the economic setting of
business activity confirm the theory that economic actors are at play to create
a familiar business environment, profiting at the same time from the
fundamental weakness of legal effectiveness at the periphery.
See generally JEAN-LOUIS HALPERIN, HISTOIRE DU DROIT PRIVE FRANCAIS DEPUIS 1804 (1996).
See generally Antonio Gambaro,
Codice Civile, in DIGESTO IV DISCIPLINE PRIVATISTICHE, CIVILE (1988).
See SCHLESINGER ET AL.,
supra note 32, at 731-32 (1998).
Id. at 236-38.
See V. Zeno-Zencovich,
The European Civil Code, European Legal Traditions and Neo Positivism, in IL CODICE CIVILE EUROPEO; MATERIALI DEI SEMINARI 375 (G. Alpa
& N. Bucicco eds., 2001).
See generally W. Van Gerven, L'
harmonization du droit des contrats en Europe: Rapport introductif, in L' HARMONIZATION DU DROIT DES CONTRATS EN EUROPE (C. Jamin, D. Mazeaud eds.,
See Christoph U. Schmid, Beyond the Common Market--Codification of European
Contract Law, Paper Presented at Institute of International Economic Law
"Function and Future of European Law," Helsinki, (1999).
See, e.g., KLAUS PETER BERGER, THE CREEPING CODIFICATION OF THE LEX MERCATORIA (1999);
Anothony P. Chamboredon,
The Debate on a European Civil Code: For an
"Open Texture", in THE HARMONISATION OF EUROPEAN PRIVATE LAW 63-69 (Mark van Hoeke
& Francois Ost eds., 2000) [hereinafter THE HARMONISATION OF EUROPEAN PRIVATE
n171 See for example H. Koetz,
Comparative Legal Research and its Function in the Development of Harmonized
Law: The European Perspective, in DE LEGE, TOWARDS UNIVERSAL LAW (Nils Jareborg ed., 1995).
See Hugh Collins, Transaction Costs and Subsidiarity in European Contract Law,
Paper Presented at the Society of European Contract Law Conference
"Communication from the Commission on European Contract Law," Leuven (Nov 30, 2001),
see also Hugh Collins,
Formalism and Efficiency: Designing European Commercial Contract Law, 8 EUR. REV. PRIVACY L. 211 (2000).
n173 U.S. influence evidently stays behind proposals of
"restatement" of European law, notions of
"model" European codes, theories of competition between national legal systems as an
efficient pattern of private law integration, and notions of facilitating
"default law" as an efficient alternative to mandatory binding legal rules.
See, e.g., THE COMMISSION OF EUROPEAN CONTRACT LAW, PRINCIPLES OF EUROPEAN CONTRACT LAW
PART I: NON-PERFORMANCE AND REMEDIES (Ole Lando
& Hugh Beale eds., 1995). For another viewpoint,
see Giuseppe Gandolfi,
Pour un code europeen des contrats, 91 REVUE TRIMESTRIELLE DE DROIT CIVIL 707 (1992). The first significant
results of the Pavia Group are contained in CODE EUROPEEN DES CONTRATS--AVANT
PROJECT (Giuseppe Gandolfi ed., 2001). For a recent articulated proposal that
is gaining currency in the European debate, see C. Von Bar
& O. Lando,
Communication on European Contract Law: Joint Response of the Commission on
European Contract Law and the Study Group on a European Civil Code, 10 EUR. REV. PRIVACY L. 183 (2002).
See FREDRIC JAMESON, POSTMODERNISM, OR, THE CULTURAL LOGIC OF LATE CAPITALISM
supra note 97;
see also JEAN FRANCOIS LYOTARD, THE POSTMODERN CONDITION: A REPORT ON KNOWLEDGE (1984)
(where he defines postmodernism as an
"incredulity towards metanarratives").
See generally Mattei
& di Robilant,
supra note 123.
supra note 116;
see also RICHARD POSNER, FRONTIERS OF LEGAL THEORY (2001).
See, e.g., GUNTHER TEUBNER, LAW AS AN AUTOPOIETIC SYSTEM (Anna Bankowska
& Ruth Adler trans., 1993).
See generally MINDA,
supra note 116.
n179 Lyotard is responsible for introducing the term
"post-modern" into critical philosophy.
supra note 174.
supra note 116.
n181 Martin Heidegger warned about the
"technological" influence on systemic patterns of thought and the resulting technocratic
supra note 8. It remains a recurring and important theme in continental European
& di Robilant,
supra note 123, at 1054.
See Antonio V. Gambaro,
Western Legal Tradition, in THE NEW PALGRAVE,
supra note 1, at 686.
See, e.g., Pierre Legrand,
Against a European Civil Code,
60 MOD. L. REV. 44 (1997).
See ANDERS STEPHANSON, MANIFEST DESTINY: AMERICAN EXPANSIONISM AND THE EMPIRE OF
see also SASKIA SASSEN, LOSING CONTROL? SOVEREIGNTY IN AN AGE OF GLOBALIZATION (1996).
supra note 160.
See CHARLES L. SCHULTZE, THE PUBLIC USE OF PRIVATE INTEREST 1-15 (1977).
n188 Such predictive function is crucial to the comparative legal and economic
See generally Mattei
supra note 113.
supra note 105.
See, e.g., GRANDE,
supra note 8;
see also Alan Watson,
Legal Transplants and European Private Law, 4.4 ELECTRONIC J. COMP. L. (2000),
See GRANT GILMORE, THE AGES OF AMERICAN LAW 72 (1977).
See generally HART
supra note 109.
Compare J.N. Pomeroy,
The True Method of Interpreting the Civil Code, 4 W. COAST REP. 585 (1884)
with GUIDO CALABRESI, A COMMON LAW FOR THE AGE OF STATUTES 1-7 (1982) (a more
See generally DUNCAN KENNEDY, A CRITIQUE OF ADJUDICATION: FIN DE SIECLE (1997) (discussing
the use of such power by U.S. courts).
See generally HERBERT JACOB ET AL., COURTS, LAW, AND POLITICS IN COMPARATIVE PERSPECTIVE
See generally LUISA ANTONIOLLI DEFLORIAN, LA STRUTTURA ISTITUZIONALE DEL NUOVO DIRITTO
COMUNE EUROPEO: COMPETIZIONE E CIRCOLAZIONE DEI MODELLI GIURIDICI (1996);
See also generally Roger Van den Bergh,
The Subsidiarity Principle in European Community Law: Some Insights from Law
and Economics, 1 MAASTRICHT J. EUR.
& COMP. L. 337 (1994).
See generally Geoffrey Samuel,
English Private Law in the Context of the Codes, in THE HARMONISATION OF EUROPEAN PRIVATE LAW,
supra note 170, at 47; Chamboredon,
supra note 170, at 64.
supra note 8 (showing that this process happens in the domain of criminal procedure).
n199 PIERRE BOURDIEU, OUTLINE OF A THEORY OF PRACTICE (Richard Nice trans., 1977).
n200 A collection of papers devoted to globalization seen from the perspective of
the losers in the process can be found in the Symposium
Globalization at the Margins. Perspectives on Globalization from Developing
7 IND. J. GLOBAL LEGAL STUD. 1 (1999).
See also VIEWS FROM THE SOUTH: THE EFFECT OF GLOBALIZATION AND THE WTO ON THIRD WORLD
COUNTRIES (Sarah Anderson ed., 2000).
supra note 10, at 127-90.
Cf. DAVID F. NOBLE, AMERICA BY DESIGN: SCIENCE, TECHNOLOGY, AND THE RISE OF
CORPORATE CAPITALISM (1977).
n203 The outcome of such an aggregate of factors is a major increase of family
savings in the countries following the social alternative between 1980 and 1990
as opposed to a decrease of the same figures in the United States.
supra note 10, at 191-210. For updated information, see TABB,
supra note 2.
supra note 10, at 127-28.
Id. at 128 (translation from Italian mine); Within a school of thought more
familiar to the American readership, G. Calabresi argues, developing on the
notion of merit goods, the necessary integration between distribution and
efficiency in public policymaking.
See GUIDO CALABRESI
& PHILIP BOBBITT, TRAGIC CHOICES (1978). Mainstream law and economics, to the
contrary, follows the traditional economist's rhetoric of a full separation
between the domain of distribution and the domain of efficiency.
See RICHARD POSNER, ECONOMIC ANALYSIS OF LAW (5th ed. 1998).
n206 For a critical discussion, see generally J.M. BLAUT, THE COLONIZER'S MODEL OF
THE WORLD: GEOGRAPHIC DIFFUSION AND EUROCENTRIC HISTORY (1993).
See M. Galanter,
Law's Elusive Problem: Learning from Bophal, in TRANSNATIONAL LEGAL PROCESSES,
supra note 1, at 172.
supra note 2.
See supra Part II.B.
See generally DOUGLASS NORTH, INSTITUTIONS, INSTITUTIONAL CHANGE AND ECONOMIC PERFORMANCE
Efficiency in Legal Transplants: An Essay in Comparative Law and Economics, 14 INT'L REV. L.
& ECON. 3 (1994). The ideas developed in that paper have gained some currency in
the debate on European codification of private law, where, particularly in the
last few years, one can see an attempt to
"select" the rules to be included in the code on the basis of technical reasons such as
efficiency. See the discussion
supra Part VIII.
supra note 10, at 244 (translation from Italian is author's).
n213 The large number of new
"authorities," from privacy to telecommunications, both at the European level and at the
level of member states, are applying the logic of private law and function in a
remarkably similar way to that of their American counterparts. For the first
time in their history, European private lawyers (and ordinary courts) have
ceased to believe that there is another direct circuit of decisionmaking
dealing with the public domain so that some public policy concerns emerge in
the private law reasoning.
See generally HESSELINK,
supra note 107.
n214 Weak reactive institutions are a problem only because of the dismantling of
the strong proactive institutions. A rush to upgrade courts of law and to
modify the pattern of legal reasoning in private law, therefore, is a necessity
only when the logic of the dismantling is already accepted. Interestingly, the
weakness of courts in the Third World (meaning the difference of adjudicatory
models from that of the United States) is considered by the World Bank to be
the main problem in the law, to be targeted through structural adjustments
programs. This obsession with the progression from legality to development to
courts of law (or ADR devices) can be perceived in all its pervasiveness by
looking at the papers included in the annotated bibliography offered by the
website of the World Bank devoted to legal development. For a critique of ADR
as yet another institution based on the dominance of imperial law, see Laura
& Elisabetta Grande,
Current Illusions and Delusions in Conflict Management: In Africa and Elsewhere, 27 L.
& SOC. INQUIRY 573 (2002).
Cf. ROBERT H. FRANK
& PHILIP COOK, THE WINNER TAKE ALL SOCIETY: WHY THE FEW AT THE TOP GET SO MUCH
MORE THAN THE REST OF US (1996).
n216 This remarkable intellectual, fierce enemy of Sartre and Lyotard (excluded,
for this reason, from the inner circles of French militant intellectuals), used
to say that he considered it vulgar to be an authority in social critique
rather than being an authority in the system criticized. His book,
The Society of the Spectacle, was first published in 1967, and though almost never cited was remarkably
influential. It was updated in 1988 with an essay that develops a full-fledged
theory of what he calls the
"integrated spectacle" as the model of social and economic domination of the post cold-war.
supra note 40.
supra note 40, at 193.
Id. at 193;
see also EDWARD S. HERMAN
& NOAM CHOMSKY, MANUFACTURING CONSENT (1988).
See supra text accompanying note 20.
n220 It is too easy to show in the recent Enron and WorldCom disasters the impact
of the strategy of privatizing controls.
n221 CARLO M. CIPOLLA, UOMINI, TECNICHE, ECONOMIE 61 (1983).
See Anna di Robilant,
The Aesthetics of Law, 1 GLOBAL JURIST ADVANCES 1 (2001),
at http://www.bepress.com/gj/advances/vol1/iss2/art1; Pierre Schlag,
The Aesthetics of American Law,
115 HARV. L. REV. 1047 (2002).
n223 Interview with David Daube, Professor Emeritus of Law, Univ. of Cal. Berkeley,
in Berkeley, Cal. (1990).
n224 Even the model of a German professorial career--long, boring, and demanding
because of the duty to write the habilitation-shrift--is short-circuited. Young
German academics are offered chairs in the United States, are Americanized in
their ways of thinking, and might be directly called to German Universities
without habilitation if one day they wish to do so. It is easy to demur on the
point that the European model of procedure, with the extensive role of clerks
in service of process and in discovery, and an emphasis on written rather than
oral confrontation, is less exciting than the American fishing expeditions,
tournaments of resume in scientific evidence, and cross examination of
witnesses in the hands of a flamboyant bar. Imagine how boring would be a movie
about a German attorney, most of the time sitting in his office, writing a
brief with his copy of the Konmmentar at hand! Some data are offered by
The Reception of American Law in Europe,
39 AM J. COMP. L. 229 (1991);
see also YVES DEZALAY
& BRYANT G. GARTH, DEALING IN VIRTUE: INTERNATIONAL COMMERCIAL ARBITRATION AND
THE CONSTRUCTION OF A TRANSNATIONAL LEGAL ORDER (1996) (an influential
sociological study on a new-born class of transnational lawyers).
See generally RICHARD K. SHERWIN, WHEN LAW GOES POP: THE VANISHING LINE BETWEEN LAW AND
POPULAR CULTURE (2000).
n226 The legal aspects of the
"other capitalism" are dull, which is emphasized in U.S. academia and in the
"more advanced" circles of the European legal profession. The traditional German, Italian, or
French literary style is perceived as mere
"black letter;" it is not creative enough. Conversely, creativity is emphasized in the U.S.
See James Gordley,
Mere Brilliance: The Recruitment of Law Professors in the United States,
41 AM. J. COMP. L. 367, 369 (1993).
n227 It is already accepted as a fact, for example, that in the law school rankings
of U.S. News and World Report, the highest rankings are beyond the reach of
See generally DE TOCQUEVILLE,
supra note 27 (main thesis of the book).
n229 For a fascinating series of generalizations, see JEAN-PHILIPPE MATHY, FRENCH
RESISTANCE: THE FRENCH-AMERICAN CULTURE WARS (2000). For a more specific
discussion in the institutional domain, see Judith Beth Prowda,
United States Dominance in the
"Marketplace of Culture" and the French
29 N.Y.U. J. INT'L L. & POL. 193, 200 (1997).
n230 For an introduction to such a counter-hegemonic movement, see generally TABB,
supra note 2.
See also DEMOCRATIZING THE GLOBAL ECONOMY: THE BATTLE AGAINST THE WORLD BANK AND THE
INTERNATIONAL MONETARY FUND (Kevin Danaher ed., 2001) [hereinafter
DEMOCRATIZING THE GLOBAL ECONOMY].
n231 An incredibly brutal repression, most of the time supported by the media, has
characterized demonstrations from Seattle to Genoa.
See, e.g., T.L. Friedman,
Senseless in Seattle, N.Y. TIMES, Dec. 1, 1999, at 23;
see also, AA. VV., GENOVA IL LIBRO BIANCO (2002) (pictures and texts on the brutality at
n232 An event crucial in the development of the political thought of Foucault,
Althusser, Derrida and many others, including Sartre.
See, e.g., FRANTZ FANON, THE WRETCHED OF THE EARTH 7 (Constance Farrington trans., 1963).
n233 Some of these themes can be found in the work of Nobel laureate Amartya K. Sen.
supra note 128 (discussing the history of Western legal tradition).
See JOSEPH E. STIGLITZ, GLOBALIZATION AND ITS DISCONTENTS (2002) (criticizing IMF
see also David Moberg,
Silencing Joseph Stiglitz, in DEMOCRATIZING THE GLOBAL ECONOMY,
supra note 230, at 127 (noting that the World Bank's response to Stiglitz' criticism
was to let him go as special adviser).
n236 This influence is a classic example in comparative law.
See generally SCHLESINGER ET AL.,
supra note 32.
n237 A distinguished German colleague made this point at the Max Plank Institute in
Hamburg when I delivered part of this paper in May 2002.
See generally NAOMI KLEIN, NO LOGO (2000) (discussing such processes of externalization).
See ANIA LOOMBA, KOLONYALIZM, POSTKOLONYALIZM [COLONIALISM/POSTCOLONIALISM] (2000).
n240 This is the fundamental thesis of KLEIN,
supra note 238, and of many other critiques of corporate globalization.
supra note 14;
see also Allesandro Somma,
Il diritto dei consumatori e un diritto dell'impresa, POLITICA DEL DIRITTO 679-88 (1998).
See BRUCE A. ACKERMAN, WE THE PEOPLE 165-71 (1991) (exemplifying the notion of
see also J.H.H. Weiler,
The Transformation of Europe,
100 YALE L. J. 2403, 2407-08 (1991) (in the European institutional context).
n243 For a skeptical view of legal scholarship's ability to contribute in the
liberating struggle, see MINDA,
supra note 116, at 247-57.
See generally IMMANUEL WALLERSTEIN, THE CAPITALIST WORLD ECONOMY (1979) (asserting that
capitalism (the fundamental source of imperial law) has always been the
province of the world economy rather than of the nation state).
n245 A general hybridization makes it extremely difficult to keep even ideal types
distinct. Thus, the very utility of using ideal types as heuristic devices can,
on the one hand, be questioned while, on the other hand, it becomes a most
stringent necessity to make sense of an increasing degree of complexity.
supra note 97;
see also ANTI-OEDIPUS,
supra note 97, at 217-22; LYOTARD,
supra note 174, at 30.
n246 This phenomenon is stronger if one looks from the perspective of content
rather than only from the geographic origins of one mode of thought. The French
social model was at least enriched by German contributions, while the
Pandectist approach, on whose leadership in the second half of the Nineteenth
Century there seems to be agreement, was certainly
"contaminated" by contributions from a variety of countries.
n247 See the discussion above on the derivative rather than original character of
Supra text accompanying notes 29, 30, 31.
Cf. Elisabetta Grande,
Italian Criminal Justice: Borrowing and Resistance,
48 AM. J. COMP. L. 227 (2000).
See generally EDGARDO BUSCAGLIA
& WILLIAM E. RATLIFF, THE LAW AND ECONOMICS OF DEVELOPMENT (1997).
n250 Japan, a frontrunner in adaptive reception of modernized institutions, is
introducing graduate legal education influenced by American law.
See Shozo Ota
& Kahei Rokumoto,
Issues of the Lawyer Population: Japan,
25 CASE W. RES. J. INT'L L. 315 (1993). Such reformas are in advanced phase of implementation.
See Symposyunm on Japanese Law,
49 AM. J. COMP. L. 545 (2001).
See NADER, supra note 154;
supra note 66.
See generally HARDT
supra note 10 (describing the idea of globalization as empire); SUSAN STRANGE, THE
RETREAT OF THE STATE: THE DIFFUSION OF POWER IN THE WORLD ECONOMY (1996)
(discussing the competing but complementary idea of globalization as
n253 Oppression by means of
"harmony ideology," is gaining currency in Europe, where false arguments in favor of weak
consumers accompany the proliferation of suggestions of alternative forums for
efficient disposal of consumer's disputes. It is apparent, however, that the
mediation alternative in unbalanced power contexts sacrifices the interests of
the weak for those of the strong. Corporate international market players highly
value predictability of damage awards such as those stemming from the
emasculation of juries and from the outcomes of mediation because
predictability makes the costs easily transferable to consumers and easily
See LAURA NADER, HARMONY IDEOLOGY: JUSTICE AND CONTROL IN A ZAPOTEC MOUNTAIN
VILLAGE (1990) (explaining the notion of Harmony Ideology as a controlling
see also NADER,
supra note 154. Interestingly, the European Commission has just produced a White
Paper suggesting extensive introduction of ADR in European consumer law. By so
doing corporate actors can
"cap" their liability by transferring the costs of accidents to consumers, though
only of those accidents occurring within Europe.
supra note 114 (providing a critical discussion of the politically conservative
background of law and economics).
n255 Such an attitude that considers
"legal science" as neutral and insulated from capture is similar to the classic law and
economics attitude that considers the
"common law process" insulated. But such an idea is no more robust (or less arbitrary) in the old
continent than it is in the United States. The high degree of insulation of
U.S. courts by law that should shield them from any risk of capture is only
accepted as an article of faith by mainstream American legal culture (the
prestige of Article III of the U.S. Constitution is tremendous). There is no
empirical testing whatsoever regarding the effectiveness of the insulation
devices provided by Article III of the U.S. Constitution for the members of the
federal judiciary (concerning tenure of office and guaranteed salary). Such
position is taken by a variety of scholars, such as C. Kirchner, Roger Van den
Bergh, and Hugh Collins.
See C. Kirchner,
An Optionan European Civil Code: Initiating a Learning Process, in AN ACADEMIC GREEN PAPER ON EUROPEAN CONTRACT LAW 399 (Stefan Grundman
& Jules Stuyk eds., 2002) [hereinafter GREEN PAPER]; Roger Van den Bergh,
Forced Harmonisation of Contract Law in Europe: Not to Be Continued, in GREEN PAPER,
supra note 255; Hugh Collins,
Transaction Costs and Subsidiarity in Eurpoean Contract Law, in GREEN PAPER,
supra note 255. But such normative use of a biased version of law and economics is
even more dangerous in the European legal landscape than in the United States.
See generally DUNCAN KENNEDY,
The Political Stakes in
"Merely Technical" Issues of Contract Law, 10 EUR. REV. PRIV. LAW 7 (2002).
See R. Abel,
The Promise and Peril of International Order, in TRANSNATIONAL LEGAL PROCESSES,
supra note 1, at 213.
n257 Indeed this phenomenon in the domain of the law is the perfect equivalent of
the impact on local distribution (small business and so forth) of the
international chains of massive distribution increasingly swallowing a large
sphere of what used to be local business.
See Mauro Bussani
& Ugo Mattei,
Making the Other Path Efficient: Economic Analysis and Tort Law in Less
Developed Countries, 1 CARDOZO EL. L. BUL. 8, 3.4 (1995)
n258 This is a phenomenon perhaps similar to that of unequal access to authority
due to differences in size of libraries, once well documented in the United
States by Professor Merryman, and now successfully solved, at least in the
United States, by the diffusion of Lexis and Westlaw.
See generally John Henry Merryman,
The Authority of Authority: What the California Supreme Court Cited in 1950,
6 STAN. L. REV. 613, 613 (1954).
n259 Blackmail by international financial institutions is today the main method of
using the advantages of imperial law. This is scarcely a new phenomenon.
Modernization projects have been based on blackmail through the history of
legal transplants, with notable examples in early twentieth century China and
Japan. Blackmail has been recently re-named the
"context of conditionality."
supra note 22.
See Jorge Esquirol, Paper Presented at the Harvard Conference on Critical
Globalization (Apr. 12, 2002).
supra note 128;
see also Teemu Ruskola,
Legal Orientalism, 101 MICH. L. REV. (forthcoming 2002).
n262 One should consider the brilliant insight of Camille Paglia, that stiletto
heels are the Western version of Chinese foot binding in a population of women
obsessed by the male constructed myth of beauty.
See CAMILLE PAGLIA, SEX, ART AND AMERICAN CULTURE 145-46 (1992);
see also NAOMI WOLF, THE BEAUTY MYTH: HOW IMAGES OF BEAUTY ARE USED AGAINST WOMEN
supra note 70.
n264 One only has to name them, from the
"suicide" of political opponents in German and Italian jails, to the prisoners'
conditions at Guantanamo, to the execution of the mentally retarded and minors
in the United States, to the
"suspension" of human rights in Ireland, in the Palestinian territories, or even in Genoa
right under the windows of the leaders of the integrated spectacle, gathering
together in one of the G8 meetings.
n265 In the process of transformation from
"American law" into
"spectacular imperial law," the role of the movie industry and of the international mass media has been
enormous. Both the professional branches that make the
"reactive" model of governance the essence of imperial law have been receiving their
share of Hollywood attention. While Julia Roberts in
Erin Brokovich can be seen as the most symbolic testimonial of the opportunities that courts
of law can offer to a Western woman fighting for the good cause,
Legally Blond and
A Beautiful Mind stage the wonderful objective fairness of the most prestigious chains of
transmission of global knowledge in the Imperial world: the U.S. academia and
the Nobel Committee.
n266 The American Revolution is one of the most fascinating examples from this
perspective. The chances of success against the almighty British army were not
high and they were not perceived as such by the main revolutionary actors.
supra note 29. Hence, there is still room to dream of a revolution originating in
less developed countries. The survival of leaders such as Hugo Chavez in South
America, or movements giving birth to the African Union in order to solve the
problem of internal warfare, might all be signs of hope.
See Fidel Castro,
We Either Unite or We Die, in DEMOCRATIZING THE GLOBAL ECONOMY,
supra note 230, at 74.
See generally MINDA,
supra note 116.
See G. Hardin,
supra note 13, at 1243.
Prepared: July 3, 2003 - 5:02:29 PM
Edited and Updated, July 4, 2003
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