Challenges for the establishment of a legal order in the contemporary international scenario




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Challenges for the establishment of a legal order in the contemporary international scenario1

David J. Sarquís Ph. D2

Technological Institute of Higher Studies of Monterrey, Campus State of Mexico (ITESM-CEM)


Abstract:

A legal order has been considered both the highest expression of reason and the most accomplished sign of civilization. It can also be seen as the trickiest form of manipulation to establish dominance and control over a given community.

However we look at this issue, the absence of clearly established rules of behavior (the question of justice left aside) only tends to make social life increasingly more difficult.

I start from a relatively simple notion of legal order as a set of rules of law which help to determine what people can and cannot do in the context of their societies subjected to judicial criteria and control. It is my contention that, at the level of the international scenario, neither the notion of an international community nor a legal framework to rule has yet been solidly established, in spite of the apparently accelerated advance of globalization.

In the struggle to overcome the state of ‘anarchy’ previously characteristic of the international environment, contemporary international actors must find ways to ensure the establishment of a sound legal order. Before this can be done, however, a minimal level of agreement between all involved must be reached as to what is acceptable in terms of rules of international behavior, a task encouraged by a growing awareness of our similarities as human groups, but dangerously hindered by over-emphasizing our differences.

This paper intends to explore the magnitude of the challenges posed by the attempt to establish a legal order for contemporary international society.


What do we mean by governance on a global scale? How can it operate without government? If governance connotes a system of rule, and if it is not sustained by an organized government, who makes and implements the rules?

James Rosenau


Introduction


The most basic axiom in the realm of the social sciences is that human beings are gregarious creatures, and the most basic implication of this idea is that we have to live in groups whether we desire it or not3 if our existence as a species is to be safeguarded. The second most important implication of the same idea would be related to the need of establishing some form of order to make life livable within (and eventually among) these groups4. It is in the context of a successfully established social order that the civilizing process usually begins.

If such premises are valid, they immediately suggest a number of very important questions which we normally find at the core of social analysis through the varied spectrum of our disciplinary matrices. What do we mean by order and why is it deemed necessary? How is such order established, is it a natural occurrence (self developed system) or is it entirely dependent on human agency? How is it related to the idea of justice? Does order necessarily imply imposition or can it be negotiated? Is a non hegemonic and just order possible? What is the role of law in the establishment of order? How would a legal order differ from other forms of normative efforts? These are some of the basic ideas I intend to explore in this paper.

For a long time, in the context of long range historical experience, the need for order in society appears to have suggested –perhaps even justified-, discipline and control as well as hierarchical differences in society, in such a way that scholars soon began to debate whether the social group was basically an expression of power (it only existed because there was someone strong enough to hold it together) or an expression of right (it existed because it derived from and expressed a natural order of things which shaped it and kept it alive).

Because of the original relation between religion and order –traceable to the most primitive societies known in history-, many observers came to believe that social order should reflect some sort of a divine design (where the deity himself stood at the apex of the pyramid); that it somehow projected a natural scheme in accordance with a higher self-regulated mandate. The structure of society would thus reflect both, the natural order of things and the will of the gods. Human agency would be limited, under such circumstances, to understanding and fulfilling this higher and preordained order of things.

It is not really until the advent of Modernity that the very idea of a ‘natural order’ underlying social phenomena is questioned –to some significant degree- and progressively replaced by a nascent constructivist approach which gave human agency increasing prominence in the development of social phenomena.

The contractualist theorists of early Modernity (Hobbes, Locke, Rousseau to name a few of the most relevant) who laid the foundations for modern political science were the first to give agency a more prominent role in expounding the idea of society as a creation of human will and action -rather than a fixed structure reflecting God’s hierarchical design; a fact that in turn gave Western culture many of its characteristic traits and the notion of order in social studies an entirely new dimension.5

Order in society now became something distinguishable from the natural order of the Universe; it gradually became something created by human interaction. It was still socially necessary, of course, but no longer pre-established by any deity. In spite of this fundamental change, however, the idea of order based on hierarchy still prevailed, but instead of a natural order of things, scholars began to conceive of a socially constructed hierarchy based on the right of might. Machiavelli is one of the first to express the idea in all its crudity for the Modern era:

The main foundations of every state, new states as well as ancient or composite ones, are good laws and good arms; and because you cannot have good laws without good arms, and where there are good arms good laws inevitably follow, I shall not discuss laws but give my attention to arms” (Machiavelli, 2003: 40 emphasis added)6

In spite of its apparently compelling logic, I contend that this line of argument is not only flawed but essentially harmful for the efforts of building a sense of community (especially for the case of the international community).

If one accepts that social order is a construct, establishing it then becomes a question of either imposition or conviction (with a number of possibilities within this continuum). Imposed order may indeed require the support of arms but it will normally produce a weak sense of community. Norms assimilated by conviction (even legal ones) may still require ways of enforcement, but certainly to a much lesser degree. As to good arms “inevitably” leading to good laws, I would think there is a vast amount of historical experience to argue otherwise.

Because no man is an island, and no group is so isolated as to escape the influence of others, the problem of order (whether imposed or convened) can be readily approached at two differentiated levels, that of the group from within and that of the relation amongst groups. In both cases the root of the problem is how to reconcile the various interests at stake in the process of building a sense of community7.

Order alone, of course, is not enough to satisfy human aspirations in the contemporary world, as most philosophers of law would agree. A human collectivity run by a tyrant may be extremely orderly and still hopelessly unjust. The problem of social order becomes therefore inescapably associated to a question of justice. As pointed out by Casares:

Society is built with an ideal type of man in mind as part of a group which seeks perfection of its constituency. Society is built through a process of upholding and limiting each one of its members with the hope of establishing an order which in turn promotes and guarantees the full realization of each individual(Casares, 1997: 32) emphasis added.


What order?

Before going any further it may be convenient to elaborate a bit more on the meaning of this concept. Order seems to be a fairly straight forward term, so it can often be surprising to find over a dozen different connotations of the noun in a standard dictionary –not to mention idiomatic use of the word. Most users would tend to associate it with organization and regularity, but most of all with harmony, essentially the opposite of anarchy, randomness or chaos. It is perhaps from this perspective that some contemporary authors enjoy emphasizing the characteristics of contemporary world ‘disorder’ in their political analysis.

The connection between the idea of order and human collectivities is important because it shapes social structures not only from within to promote the notion of progress and justice, but also, as it has been pointed out, in terms of relations among groups, because it helps sustain the structure of international systems. I have actually contended elsewhere that international order constitutes a proper comprehensive object of study for a discipline of international relations (Sarquís, 2005).

Whereas, in domestic terms, groups are thought to be inherently orderly8, thanks to the existence of a political body authorized to exercise a monopoly of power (a central authority), in the realm of international analysis, with various degrees of emphasis, the major theories hold the view that this system is essentially anarchic, (thus inherently disorderly) precisely because of the absence of a common power (whence all its distinctive features) (Adem, 2002: 19). I argue that even in the most apparently anarchical conditions there’s always a visible pattern of regularity emerging from implicit or explicit guiding principles which influence the behavior of international actors, although, evidently, that is by no means a guarantee of harmony among them.

From a systemic perspective, order is an inherent property of all systems inasmuch as they all tend to describe regular patterns of behavior of some sort, even when they are placed in far from equilibrium situations (chaos); that means even the most apparently chaotic system is still subject to some degree of regularity9. From this perspective, order is actually one of the main concerns of chaos theory (Peitgen, 2004) where it basically represents the set of guiding principles which define the way a given system works10. In this type of order we are essentially looking at plain self sustained regularity which can assure a certain amount of predictability but at the same time offers no guaranty of justice.

Order is thus not to be perceived as a limited range of social situations, e.g. those which are free from turbulence or conflict. Order is whatever pattern or regularity of interaction is to be found in any social situation”. (Cox, in Rosenau & Czempiel, 1992: 137 emphasis added)


I think this line of thought is important because it helps us go beyond the otherwise insurmountable argument that international law is not a proper legal system because it lacks coercive power, but above all, to overcome the harmful myth that the international system is inherently and hopelessly anarchical and so international actors are allowed to do as they please provided their status as a power permits. Clearly, from a sociological point of view, we need to think beyond this mechanical idea of regularity and venture into the realm of moral and ethical concerns characteristic of human constructs11. As already suggested, order in this primary level (as a mere pattern of regularity) is normally not enough for complex societies in which ethical questions are raised. Order structurally conditioned may satisfy some basic needs of coexistence by making life somewhat predictable, but:

“…if people are to live together, they must not only be able to coordinate their activities but also to interact productively –to do things that help rather than hurt others. Thus highly ordered societies have a remarkable capacity to sustain cooperation. To explain social order, therefore, we must understand why individuals behave in prosocial ways.”(Hechter, 2003: 30)


Prosocial in essence means cooperative behavior. Creating a social order within a collectivity is a process developed by the influence of daily coexistence. Although in the earliest stages of human development brute force may have played a leading role in defining social structures, as contractualists sharply pointed out, sharing a common space, language and set of traditions (culture) to confront challenges routinely must have signaled the convenience of cooperative efforts among humans out of their own conviction, something that can only be achieved when these efforts are properly rewarded.

In other words, since a natural order is by no means guarantee of success in creating a just order, (nature does have a very violent side to it) long time shared experience within human groups must have made evident the benefits of promoting cooperation over competition among the members of the group. Even in societies where competition is highly praised today, the benefits of fair over foul play are clearly the order of the day, in spite of the fact that the ethos of entrepreneurial liberal capitalism might sometimes suggest something different. At least at the level of discourse, no one dares say publicly that any form of foul play is admissible even when it can clearly be beneficial.

This is not to say, of course, that foul play does not exist. It is often painfully evident that it does. That is why the emergence of a ruling body would normally help consolidate the social order developed by common interaction, however when the spirit of a norm has been assimilated by conviction, it should not be entirely dependent on enforcement by the ruling body, even in spite of prestigious opinions to the contrary12. Fukuyama sharply warns that just because a rule which has been internalized is easier to implement than one which has to be enforced externally, we should not be led to think that legal institutions can be replaced by mere good will. Indeed, internalized norms work better when they supplement rather than replace formal incentive structures. (Fukuyama, 2005: 86-87)

In most social systems, the notion of order is relatively easy to illustrate, discuss and even justify, as it tends to grow from conventionally accepted customs and traditions. Most people would thus intuitively accept that order is a basic social ingredient. Establishing it though is an entirely different matter. As I have previously suggested, the norms that serve as foundation to social order can be established either by conviction or by imposition. The former tend to produce law abiding societies, the latter, because people here tend to see the norms as an instrument of control, will more likely than not, become law avoiding societies (people who need coercion to fulfill their normative obligations but who are constantly looking for ways to by-pass the norms).

I am well aware of the danger of creating generalizing notions that can be abusive or misleading. It is not possible to characterize a whole society as law-abiding or law avoiding, but I believe the predominant trend can be recognized without much of a problem, and I believe it is useful because it constitutes one of the most relevant indicators of legitimacy when we consider state institutions worldwide.

In the realm of international relations, on the other hand, the question of order has been inherently one of the most problematic notions precisely because it involves the establishment of ‘rules of the game’ for peoples who come from very different cultural backgrounds, reason for which accepted traditions and values for all are hard to establish, especially considering the absence of a central authority. Whereas, sociologically, (order) simply denotes the existence of a stable pattern of behavior, whether cooperative or conflictual and implies an image of society as a system of action unified at the most general level by shared culture, by agreement on values (or at least on modes) of communication and political organization, (Adem, 2002: 29) at the level of the international, a pattern of regularity established by agency has to be achieved by accommodating conflictual interest of politically independent communities, most of which have historically developed their own sense of good or evil, right or wrong and punishment or reward, as well as the specific power structures to enforce these notions.

Perhaps the principle of sovereignty found wide acceptance to begin with precisely because it established as a common rule of interaction the idea of not interference with the affairs of others, a commitment easier to fulfill in the era before the virtual shrinking of time and space in our planet.

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