Fourth wave of legal globalization?
Duncan Kennedy, a professor at Harvard Law School, summarized the paradigm characteristics and changes of the three waves of legal globalization between 1850 and 2000 in the article “Three Globalizations of Law and Legal Thought”: 1. The classical legal thought model from 1985 to 1914; the social legal thought model from 1900 to 1968; the third wave legal globalization model from 1945 to 2000. Kennedy first put forward the proposition of the third wave of legal globalization. In his view, this legal globalization takes American law as a typical form, which is reflected in the double rise of new formalism of public law and policy analysis school.
Compared with Hardt and Negri’s “Empire” and Ugo Matthew’s “Empire Law”, Kennedy analyzed the characteristics of the post-war global legal order in a more objective and in-depth manner, and went deep into the inner world of global legal governance. Evolutionary process, to avoid falling into simple ideological critique. From the investigation of the conceptual terms, reasoning methods, and thinking mode changes of specific legal departments in different periods, as well as the corresponding changes in law and rights, the article shows an observation perspective with historical penetration. Generally speaking, the new global business law, network law, trade law, financial law, investment law, global administrative law, transnational company law, human rights law, and this series of legal fields all developed after World War II, especially in the 1970s. Since the 1900s, it has developed rapidly, and the third wave of legal globalization paradigm has taken shape.
In fact, if the Law and Development Movement (Law and Development Movement) is used as an observation perspective, the legal globalization after World War II can be further divided into two stages. The first stage is the globalization development movement in the 1950s and 1960s, when the late-developing countries aimed at industrialization and modernization, and used law as a tool to promote it. The second stage began in the 1980s and lasted until 2008. Western scholars usually call it neoliberal legal globalization. It uses the slogans of “Washington Consensus” and “global governance” to oppose trade protectionism, Cancel government controls, open up the capital market, and re-arrange the relationship between the country, trade, and investment through market access, intellectual property protection, investment liberalization, and adjustment of service industry rules, especially through new institutional arrangements to absorb the previously excluded developing countries have entered the unified plane of globalization. However, after the financial crisis in 2008, many scholars believe that it is difficult to follow the simple nomenclature of old and new liberalism to understand the new trend of legal globalization. Is legal globalization over? Or is a new evolutionary impetus brewing? I try to grasp the new features of contemporary legal globalization through observations of the first and second waves of law and development movements.
The first wave and the second wave of the law and development movement have specific hegemonic countries behind them to set a unified legal globalization issue. For example, in the first wave, the Marshall Plan was mainly adopted by the United Kingdom and the United States in the context of the Bretton Woods Conference. And various specialized international organizations (the World Bank, the International Monetary Fund, the United Nations, the General Agreement on Tariffs and Trade, etc.) have formed a leading position in the development of global law. The movement was guided by a hegemonic country and cooperated with corresponding international organizations, and finally formed the setting of the post-war “embedded liberalism” legal paradigm. The second wave of the law and development movement was also led by the United Kingdom and the United States. Through the reforms of Margaret Thatcher and Reagan, and through the transfer of trade issues (to the service industry, intellectual property rights, and investment issues), the “liberal system” in the post-Cold War period was formed. The legal transplantation and system forging of “liberal globalization” have laid the foundation for the global capital flow and the neoliberal program of weakening national welfare control. In both waves of movement, the clear figure of the hegemonic state can be observed.
In the transition from the first wave to the second wave, a major change can be found, namely the rise of multinational corporations. Many studies have confirmed that, especially in the formulation of the TRIPS agreement, American information and knowledge-intensive multinational companies have played a major role in it, and a large number of industry alliances and economic associations have instigated lawyers and legal experts to draft a series of multilateral legal proposals , promoted the establishment of “minimum protection standards”, and successfully set intellectual property rights as a new core issue of global trade. The result is not just the internal code of conduct of multinational corporations, but a supranational global legal network including multinational corporations, investor shareholders, consumers, NGO groups, suppliers and distributors. In other words, the role of multinational corporations has a clear upward trend in the new evolution of legal globalization, which also includes the rise of the role of multinational law firms, accounting firms and management consulting agencies.
From the alternation of these two waves of movements to the present day, many new trends can be observed, especially the global social systems such as trade, investment, finance, technology, and media. Ability to operate worldwide.
two
Today, we have entered the post-hegemony era of legal globalization. Duncan Kennedy believed that American-style legal globalization has come to an end, because there is no longer a global hegemony as the designer and operator of a unified export legal movement. On the contrary, the role of the EU is on the rise, forming a legal “Brussels effect”. The so-called Brussels effect was first proposed by Columbia University Law School professor Anu Bradford (Anu Bradford), that is, the EU has the ability to unilaterally regulate the global market by relying on market forces. , Brazil’s honey production and Cameroon’s cocoa farmers using pesticide standards, the EU externalizes its legal value through market mechanisms, thereby realizing the process of unilateral regulatory globalization. Without resorting to the cooperation of international organizations and countries outside the EU, the EU’s own market size alone is sufficient to convert its own legal standards into global standards. In order to win the EU market, different multinational companies have to follow the EU’s legal rules; the EU thus exports industry standards in food safety, chemical supervision, anti-monopoly, environmental protection, and privacy protection through the global intermediary of multinational companies. , thus forming the ability to unilaterally reform global law. Taking the General Data Protection Regulation (GDPR) as an example, a large number of EU laws and the values behind them have become the core basis for the protection of personal information in the contemporary world. In many fields, the EU is currently setting relevant legal issues, thereby promoting the development of legal globalization. For example, the concept of carbon neutrality currently advocated by the world was first gradually introduced into relevant legal categories mainly by the European Union through its green political movement. In addition, laws and regulations involving food safety, especially genetically modified foods, as well as consumer protection, Issues such as labor standards and anti-monopoly, as well as the latest digital market law and digital service law that are brewing, were first proposed by the EU. After entering the new century, the European Union has played an increasingly important role in the process of legal globalization, which is no longer the same as the globalization of American law after the war.
It can be found that neither a hegemonic country nor a general nation-state is currently promoting the process of legal globalization. In the process of the rise of the EU, it can be seen that it is not a specific European country that plays a major role, but various transnational and regional civil groups and NGO organizations in these countries, including some important industry associations Business associations, their full-time lawyers, and transnational courts, such as the Court of Justice of the European Union and the European Court of Human Rights, play a central role. It can be said that the current legal globalization has turned into a legal compliance movement, from the concept of “law and development” based on the nation-state, to the concept of “law and compliance” based on enterprises. concept.
Since cross-border trade inevitably involves differences between the home country market and the host country market in terms of economy, regulations, finance, market, competition, assets, human resources, technology, etc., corporate compliance has become an important lever for contemporary legal globalization. In the process of global business expansion, whether it is trade, investment or production service activities, enterprises need to strive to comply with the legal and regulatory standards of various regions, promote global and regional regulatory coordination, and continuously upgrade various corporate contracts in the process. In order to meet the legal access conditions, and thus achieve the effect of global legal convergence. Therefore, the core subject of the current legal globalization is no longer just the nation-state. In other words, although the nation-state still plays an important role on the surface, behind the country is a larger global network of enterprises that promote the country’s participation in the process of legal globalization. It is an industry association, business association and consortium alliance behind multinational companies and multinational companies. It also includes various technical groups, standardization organizations, and a global network composed of various financial investment groups, multinational law firms, accounting firms and management consulting agencies. .
Therefore, in the new legal globalization movement, the role of the state is undergoing a potential change. It does not mean that the role of the state has weakened. The state still plays an important role, and has even been strengthened in some areas, but the state is no longer a unified output of the legal movement. It is no longer the designer and commander of legal globalization. On the contrary, the driving force of legal globalization comes from the invisible network composed of countries, enterprises and various large hub organizations and node organizations. Santos pointed out in his book “Towards a New Legal Common Sense: Law, Globalization, and Liberation” that the leaders of the current legal globalization are neither the law professors of the first wave of legal globalization nor the second wave of legal globalization Lawmakers and legal experts are not judges as Kennedy said, but a community of practicing lawyers, multinational corporations, the public, and non-governmental organizations. In this process, the role of formal international organizations, especially large multilateral international organizations, has also continued to decline. Correspondingly, the role of some field-based and thematic organizations has increased. All kinds of networks, clusters, groups, etc., have become new global power units.
three
Duncan Kennedy pointed out that the third wave of legal globalization, on the one hand, presents a new form of rationality in the field of public law, and on the other hand, in the field of private law, it adopts a large number of practical social science policy analysis, especially the method of law and economics. Behind Kennedy’s observation, it actually points to a deeper legal phenomenon: in the current legal globalization movement, the country is continuing to promote the process of outsourcing and autonomy of legal supervision, especially emphasizing empowerment governance, cooperative governance and incentive governance , introduce various cost/benefit analysis methods in legal regulation, and use economic efficiency and the principle of proportionality as the core evaluation indicators instead of the traditional formalism and dogmatism reasoning methods. If the first wave of legal globalization is a formal rational law that emphasizes individual autonomy, the second wave of legal globalization is a substantive rational law that highlights social protection, and the third wave of legal globalization opens up a reflective rational law that responds to network symbiosis.
It can be seen that legal regulators and regulated enterprises have formed an increasingly close symbiotic relationship: public-private cooperation is often used extensively in the formulation of legal rules and standards, and private audits and expert professional networks are mainly relied on in various compliance assessments. Especially in the digital age, the setting of legal goals, the establishment of law enforcement feedback mechanisms, and the realization of target behavior adjustments all rely on the support of digital technology and data capabilities. The realization of the functions of national law increasingly relies on technological innovation and data on digital platforms. supply capacity. In this context, the state can no longer act as an omnipotent and rational legislator to formulate complete rules and standards for a large number of sectors that are constantly changing in technology and business models. Set all legal objectives, formulate complete legal rules, and launch law enforcement actions in the form of real-time coverage around the clock. Fundamentally speaking, today’s legal globalization has entered a high information overload, running through a new stage of knowledge from risk to uncertainty to complete ignorance.
In this process, not only nation-states, but also international collective action wills are also in a declining stage. States play more roles as scattered subjects, the possibility of forming collective action is constantly weakening, and it is difficult for traditional national camps to form effective Combined, even the U.S. and the EU face many legal differences, such as the huge controversy surrounding the Privacy Shield agreement. Because countries are trapped in unilateral actions, they cannot form a unified legal will and capacity to act. At the same time, the role of platform companies, especially ultra-large-scale digital platform companies, is on the rise. Because a platform enterprise has a large amount of data resources and involves multilateral business scope in different fields, it is no longer a traditional enterprise or a traditional organization, but has the ability to dominate or even replace the market itself. Correspondingly, multinational law firms are no longer traditional partnership organizations, but have gradually transformed into joint-stock companies and multinational corporations. A large number of law firm businesses have become non-litigation, mainly serving the compliance business of platform companies, and then becoming an extension of the audit, internal control, legal and risk control departments of platform companies. Traditional legal regulators are at the center and apex, assuming that all enterprises, organizations and individuals in the market can be regulated. However, contemporary platform companies are no longer ordinary market participants. On the one hand, they are intermediary matching mechanisms for multilateral and multi-scenes, and on the other hand, they are operating carriers across different social systems. The platform does not belong to any single social function system, but is close to the country, an institutional system that also has the ability to mobilize territory and population, and has substantial supervision and control capabilities. Because of this, the contemporary legal globalization movement presents a dynamic mechanism with both positive and negative sides, that is, the superficial globalization of national law and the deep globalization of platform law. Two sets of legal globalization systems can be found: one is a global legal system composed of national law, that is, formal national statutory law and international law; the other is a global legal system represented by transnational company law and new business law. A global law characterized by the customary law of transnational businessmen, this set of laws also includes the global compliance practices of various enterprises, and together constitute a system that actually plays the role of global legal regulation. Taking digital law as an example, in the field of national law and international law, a formal legal system has been formed, including the “Network Security Law”, “Data Security Law”, “Personal Information Protection Law” and “E-Commerce Law”. But in addition, there is another set of invisible legal rules that are playing a greater role in the fields of global trade, investment, finance and digital networks, especially in the practice of multinational enterprises and new commercial law. In particular, platform-based companies have passed trade secrets, user service agreements, privacy policies, and calculations.
This legal system can parasitize and evade national legislation and formal rules at the same time, thus forming a space for regulatory arbitrage. In particular, all kinds of ultra-large platforms already have the attributes of independent legislation and law enforcement. They can mobilize various legal resources, notably through contract law, corporate law, and securities law, to create new derivatives, capital ownership structures, and new intermediation arrangements. On the one hand, they use various legal and compliance tools, and on the other hand, relying on their priority control and access to various types of data, they can effectively block and evade the penetration of formal laws, and even outsource and substitute actual legal functions. The two sets of legal systems in which yin and yang coexist form a relationship of mutual integration and mutual nesting in the form of a regulated intermediary. Therefore, the relationship between national law and platform law, statutory law and digital law is not an antagonistic and conflicting relationship, but a very tightly knit together, entering a co-changing state of continuous interaction, mutual absorption and potential see-saw.
Four
It is particularly worth noting that digital globalization is dominating and dominating the new dynamic direction of legal globalization. The scale of information communication and the depth of excavation have been greatly improved. Individuals and groups, society and machines have become the nodes of global network mobilization. What has thus been formed is no longer the traditional concept of global space, but decentralized and hybrid (physical and virtual) ), images that both expand and contract, computational and digital. The offline world and the online world continue to be differentiated and deeply coupled. In the global space formed by this dual interaction, what continues to carry out legal communication is the ever-increasing complex network of human-machine relationship structures, various invisible social digital systems, It has profoundly changed the concept of space and time of legal globalization.
First of all, it is shifting from a market economy to a platform economy, and from an industrial production method to a digital production method: traditional means of production such as land, labor, and currency are fully dematerialized and digitized, and personal data and group data become new means of production; core strategic assets are intangible Including brand, intellectual property, information security, algorithm, etc., around various artificial intelligence and big data technologies, and around digitization, grouping, personalization, and predictive technologies to organize production, services, transactions, and distribution. The corresponding concepts of property rights, real rights, and tort liability are facing reinterpretation and updating.
Secondly, data is different from traditional property and intangible property, because data is not scarce, and the realization of data value first relies on technology rather than legal empowerment. For platform companies, the blurring of data ownership can provide them with the greatest room for operation in collecting and processing personal information. Similar to resnul l ius in Roman law, the platform can adopt the principle of pre-occupation and capture of data without definite ownership, just like resnul l ius in Roman law, to evade national legal supervision, with the help of digital technology empowerment Form a comprehensive circle. Data mining and algorithm technology form powerful predictive power. This kind of predictive power can not only further strengthen the closed operation of the platform through legal empowerment, but also bypass national laws to directly regulate and promote the effectiveness of society.
Thirdly, the existence of traditional enterprise hierarchical organization is to reduce the transaction costs brought about by information search, contract negotiation and contract execution. With the development of digital technology, the continuous decline of market transaction costs, not only did not lead to the demise of enterprise organizations predicted by Coase, but further promoted the rise of super-large platforms. On the one hand, the platform uses digital technology to improve market matching efficiency, and on the other hand, it strengthens its control over individual and group behavior through algorithmic power. In this sense, the platform is different from the traditional corporate form, and even replaces the market mechanism to some extent. Large-scale platform-state this new triadic social structure.
Under the background of the new social structure, the concept of risk is rising more and more, such as risk assessment, risk governance, risk management, risk pricing and so on. Because in the new era of globalization, no matter whether it is a country, an enterprise, or an organization, only through specific modeling and representation can we effectively understand and deal with various systemic risks. In legal literature, the keyword risk appears more and more frequently, because law needs to face high mobility, unspecified affected groups, and unstructured social risks. In other words, the essence of the global legal risk paradigm shift is to carry out probabilistic model prediction and quantitative assessment and management of uncertain risks that cross national borders in the digital age, intending to provide legal supervision and platform governance through data and knowledge-intensive risk modeling. Set reasonable activation thresholds and boundary conditions to deal with a high degree of social complexity. For this reason, in the global legal development, there are generally trends of compliance, technology and marketization, and risk management has become the core business of corporate legal affairs, law firms, accounting firms and professional consulting agencies. In practice, in addition to the country’s hard law, multiple soft law norms such as consultation, guidance, notification, contract, reputation, audit, and private standards have gradually developed.
There is a covariate relationship between legal structure and social structure. German jurist Karl-Heinz Ladeur believes that since the 19th century, legal forms have undergone structural changes from individual society to organizational society and then to network society, which actually corresponds to Kennedy’s three waves of legal globalization movement. historical evolution. When the new dynamics of globalization put forward new requirements for the ability to learn and govern the law, it will inevitably promote the birth of a new legal paradigm. It is in this sense that we can declare that the fourth wave of legal globalization has begun to take shape?
