Constitutions reflect the role of political <br>power because they provide a balance <br>between competing interests, writes Lang.
Constitutions reflect the role of political
power because they provide a balance
between competing interests, writes Lang.

Policy Innovations Digital Magazine (2006-2016): Commentary: Rules for Globalization's Unruliness

Jul 16, 2007

Globalization certainly seems unruly. Economic transactions and cultural interactions directed by no one, but impacting everyone, have produced a global political dynamic without order or purpose. Some marginalized by these dynamics lash out with violence, turning their grievances into justifications for random acts of terrorism or ideologies that sustain terrorist groups. Governments and international organizations grasp at the old rules of international order to constrain those using globalization to justify violence.

Others have argued that globalization provides a unique opportunity to rethink the rules. Rather than rely on staid rules drawn up for a system in which sovereign states dominated the globe (perhaps more of a fictional era than one that corresponds to any real moment in time), advocates of global governance have pointed to the informal rules that create various regimes and structures to govern global processes. Resulting not from a decision by sovereign states but from the decisions of millions of individual consumers, producers, and activists, these new rules can be flexible and responsive to new developments, yet also guide individuals and constrain those who may seek to take advantage of a less formally rule-bound system.

Danger or opportunity?

Before deciding how to view the impact of globalization on rules, it's perhaps helpful to clarify what rules can and cannot do at the global level. Rules are somewhere between norms and laws. Norms are generally agreed conventions shared within particular social contexts about the proper behavior for individuals within that context. Laws are rules that arise from a particular political context and result in a sanction when they are broken.

A rule has features of both norms and laws. It usually arises from a particular context, although that context may not be a political one; for instance, families, churches, and clubs all have rules that govern their behavior. Rules can result in sanctions when they are not followed, although in some cases the failure to follow a rule results in a change in context rather than a sanction. That is, breaking the rules might lead to punishment but it might also lead to a radical revision in the very context itself. Laws can also change, but only by an official procedure. Rules change when more and more participants in the context begin to alter them through their behavior.

As a result of this particular feature of rules—their ability to change not as a result of an official procedure but as the result of changes in behavior—they are useful metaphor to think about the international normative order. What we call international law is really closer to a set of rules that change through the repeated interactions of the primary agents in the system (states). This is not to say that international law is somehow weaker than domestic law. Rather, the participants in the game of international affairs tend to make changes to the rules through shared agreements rather than through following a particular script.

Changes in the rules become somewhat suspect, for they appear to be changes that only benefit the powerful, which, indeed, sometimes happens. But changes in the rules can also arise from changes in the identities of the primary agents or changes in science and technology. For instance, when scientists realized that industrial growth had a primary role in the rapid changes in the global climate, the previous rules about economic development demanded changes. Or when computer technology allowed soldiers to write about their real time experience in combat zones through blogs, and citizens in one country can speak to others through the Internet about struggles with their political systems, the rules defining what constitutes a sovereign state to which individuals owe allegiance may be thrown off.

As these examples suggest, it is not only states that play a role in changing the rules, but individuals, NGOs, and international organizations. Indeed, the idea of a website that gives individual citizens the chance to propose alternative policy innovations—i.e., this one—suggests that rule changes might arise from a much wider range of sources than simply treaties and international conventions. This does not deny the role of sovereign states in making some of the most important rule changes, but it does suggest that one of the benefits of globalization is that global rule change might become a more democratic and participatory process than had previously been the case.

While there is certainly much to celebrate about the capacity of this more democratic process of rule change, there is a certain amount of danger in it as well. Consider the rules that govern international security. Developments in the last century in public international law—the rules to which states formally agree—have systematically limited the justifications for war. While war and violence continue to plague humankind, the attempt to limit them has certainly had an impact on the global realm.

If we were to encourage individuals and non-state groups to play a role in changing the rules about war, we might produce a more peaceful system. But, at the same time, there are certainly some who would want to change the rules so that they can use violence to advance their own ideas or interests. One of the features of modernity, highlighted by the German sociologist Max Weber, is that the state retains the monopoly of violence. This feature of the modern world provides some security, especially as more states become democratic.

But, as author David Kennedy has recently argued in his book War and Law, the rules governing the use of force within particular contexts—what some call the jus in bello rules—have been revised and shaped by a group of professional humanitarians and military personnel. In a rather unique alliance, these two groups, who were often at odds in the past, have realized that if they cooperate, it increases international security and produces clearer rules about how to behave on the battlefield. Without globalization, these groups may have been kept separate, with soldiers working for the state and humanitarians fixated on their groups' concerns. Their cooperation suggests how state and NGO representatives might produce better rules by working together through multiple channels, channels made possible by a more globalized international order.

It is not only the danger of individuals or groups changing the rules to fit their interests, but of powerful states using the flexibility of the rules to advance their interests. The U.S. war on terror should make us wary about the flexibility of the rules. Rules governing torture, military intervention, and counter proliferation of nuclear weapons have all been radically changed since 9/11. Admittedly, the rules that governed the international security system were not well equipped to deal with terrorism. Unilateral changes to the rules, however, will produce not a new rule-governed system, but uncertainty and fear.

Ultimately, we need rules. But being bound by specific rules that cannot change unduly restricts us. One way to combine the need for rules with the need for flexibility is the idea of constitutionalism. A constitution creates a rule-bound system, one that can be written as in the United States or unwritten as in Britain. Constitutions reflect the role of political power because they provide a balance between competing interests. Constitutions also provide the means to change and respond to new developments, while still keeping within a rule-governed context. Constitutionalism is even broader than a constitution itself—it's an attitude toward politics that emphasizes rules but recognizes that individuals need to be constrained not just by rules on paper but also political structures.

Perhaps we need renewed efforts at creating a global constitutional order or at least inculcating a spirit of constitutionalism, one that could start with existing rules but provides a means to change those rules through a wider consultative context. A constitution will not automatically create obedience to the rules, but it will at least provide a context within which rules can function. In a rapidly globalizing political system, constitutionalism may be our only hope.

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