—Alicia Pastor y Camarasa, PhD Candidate, Centre de recherche sur l’Etat et la Constitution (CRECO), University of Louvain (Belgium)
Reviving the tradition of medieval disputatio, Professors Sophie Weerts and Céline Romainville convened a debate at the University of Louvain around globalization and public law under the title, Does Global Law Exist?, with Professors Maxime Saint-Hilaire (University of Sherbrooke) and Benoît Frydman (Free University of Brussels). What follows is a summary of the key issues that emerged from intensive debate, where two radically different perspectives were proposed on how to defend the Rule of Law [l’Etat de droit] from the threats emerging from globalization. The debate revolved around questions regarding the nature of global law, the state, the role for lawyers, and the fairness of global law. It can be seen in full – here.
Benoît Frydman embraced a pragmatist approach, arguing that any norm with legal consequences is thus a legal norm. He referred to all these non-formal legal norms as “U.L.O.s” or “Unidentified Legal Objects”. These norms go beyond state law and include what is traditionally gathered under soft law; such as, guidelines, recommendations, labels, and indicators produced by both public and private actors. He argued that legal scholars and actors (i.e. judges and lawyers) should think of these norms as law, as this is the only pathway through which these norms – currently emerging in the global realm – can be controlled and submitted to the Rule of Law. Frydman ultimately advocated for the legal community to dive into these different normative orders.
Maxime Saint Hilaire chose an opposite strategy. As a fierce critic of legal pluralism and ‘panjuridism’ (which pushes us to see law everywhere), he argued that, in order to protect the Rule of Law, it is essential to stick to the rule of recognition, which allows legal rules to be distinguished from other normative orders. In contrast to Frydman, he proposed that legal inquiry should be devoted to formal sources of law – that is, rules recognized by the state – and that this is a necessary condition for the survival of the Rule of Law as a principle grounded in political values. It follows that he defended the role of lawyers as actors fighting for a more formal, rather than substantive, form of justice.
As public lawyers facing the challenges and the effects of globalization on public law, the questions raised by these two different strategies invite us all to take a step back and engage in self-reflection. How should we define our project of inquiry as public lawyers? Should we engage with actors beyond judges and the legislature? Where should we draw the line? Should we limit our role as defenders of formal modes of justice, or should we consider the law to be a tool of emancipation and protection for those who have traditionally been marginalized and invisibilized by public law given their gender, race, sexual orientation, ability, geographical location (ie the Global South)? Should we engage in a pragmatic way with the effects of globalization, or should we refine the conceptual tools we already have at our disposal, such as the rule of recognition, to preserve the Rule of Law and the political values underpinning it?
Benoit Frydman with Jean-Yves Chérot, La science du droit dans la globalisation, Bruxelles, Bruylant, 2012.
with L. Hennebel, G. Lewkowicz, “Coregulation and the Rule of Law”, avec in E. Brousseau, M. Marzouki., C. Meadel, (dir.), Governance, Regulation and Powers on the Internet, Cambridge University Press, 2012.
“L’évolution des normes de scientificité en droit”, in Hélène Desbrousses , Normes de scientificité et objet des sciences sociales, Paris, L’Harmattan, 1997, pp. 91-109
Maxime Saint Hilaire, “Standards constitutionnels mondiaux : épistémologie et méthodologie”, in Mathieu Disant, Gregory Lewkowicz et Pauline Türk (dir.), Les standards constitutionnels mondiaux, Bruxelles, Bruylant, 2017, p. 11-75.
“Global Standards of Constitutional Law: What Knowledge? Which Method?”, in Asma Ghachemet Henri Pallard (dir.), Une Cour constitutionnelle internationale au service du droit démocratique et du droit constitutionnel, actes du colloque de Rabat des 16-17 juin 2015, Beyrouth, Konrad Ademauer Stiftung, 2016, p. 23-28.
“The Study of Legal Plurality outside “Legal Pluralism”: The Future of the Discipline?”, in Shauna Van Praagh et Helge Dedek (Eds), Stateless Law: Evolving Boundaries of a Discipline, Farnham (UK), Ashgate Pub, 2015, p. 115-132.
 See M. Loughlin, “Chapter 11. Rechtsstaat, Rule of Law, l’Etat de droit”, Foundations of Public Law (Oxford University Press, 2010).