Effect on Rule of Law

"The rule of law means that everyone is subject to the ordinary law of the land. This is so regardless of public prominence or governmental status. It requires the law to be equally applied to all, without fear or favour and in an evenhanded manner between government and citizen. There is no exemption from the ordinary law of the state for agents of government, and no one, no matter how important or powerful, is above the law. "9 The question of globalisation and the rule of law is one of continued effectiveness of public administration as the medium for democratic societies to intervene effectively n their own course.

Unlike regulatory functions that the state has assumed for the goals of macroeconomic steering and redistribution, there is no trace of a diminishing power of the nation-state for more classical organizational functions, above all from state guarantee of property rights and conditions for fair competition. We have also seen that the power of political control that the nation-state is steadily losing can be compensated for at the international level. 10 The rule of law is difficult to uphold because the economic giants who have gained the most from globalisation benefit unambiguously from discretionary and informal forms of legal activity.

Political and economic conditions have been tailored to attract economic investment within their state, and nation-states have done little to counter the international capital's preference for open-ended law. 11 Law associated with the commercial/corporate axis of globalisation is local-drawn principally from the liberalist philosophy of Western social, economic, political and legal thought, or, more specifically, from the competition policies, commercial laws, and corporate codes of the United States and Europe.

The unity of law in this context is simultaneously to enhance free trade and freedom of contract and to exert commercial order through the extraterritorial imposition of Western municipal law, multinational enterprise practice and Western-style regulatory regimes, backed by free-market ideology. Of the key principles that comprise the formal notion of the rule of law, the one that here emphasized is that of the publicized and relatively predictable operation of laws and legal system.

12 In its traditional function, this requires a system where government "is bound by rules fixed and announced beforehand," such that its actions are in theory knowable, allowing individuals and other legal persons to plan their actions accordingly. The delegation of authority and the associated impact it has on domestic governance structure is the pivotal institutional feature in this emphasis on standards. The advent of soft law fundamentally transforms the internal architecture of the state. It brings with it a new governance infrastructure that provides the basis of a new regulatory state.

This emphasis on governance infrastructure is reflected in the attention given to issues of compliance and monitoring. One of the features of soft law is the fact that international regulatory agencies do not so much seek direct compliance with regulation as monitor the activities of the domestic regulatory agencies. These agencies in turn place a new emphasis on ensuring the operation of compliance mechanisms at the end of this regulatory chain. The nature of this certification process enables states and private actors to use standards to impart legitimacy to certain kinds of economic and political practices.

Jayasuriya indicates the manner in which authoritarian states have used 'rule of law' to apply to the 'economy' rather than to the political spheres between state and citizens. Legal reform needs to be seen not as a response to a rapidly burgeoning market but as an instrument to rationalize the state, and to provide the state with the machinery necessary (including legal ideas) to regulate the economy. 13 The shift away from the politics of interests towards a politics of local partnership significantly contributes to the depoliticizing nature of governance in the regulatory state.

More broadly, just as the regulatory state results in the constitutionalisation of the economy, the new emphasis on social capital and partnership provides a parallel process of constituting a managerial civil society. But this managerial civil society is conceived in terms of fostering social networks and relationships under the rubric of social capital, which serves to detach social agency from issues of power. In accordance then with the typology of the formal conception of the rule of law, the concern here is with the prospect of surety that flows from the existence of the legal process itself.

The law's instrumental integrity is more relevant than the substantive content of the law. Such a focus draws on the essential systemic rationality of law as a means "by which human beings impose reason, to the limits of their ability, on the otherwise chaotic conditions of their social existence. " Thus, with respect to the commercial, corporate and regulatory drivers – both national and transnational – of the globalizing economy, this dimension of the rule of law is vital to the pursuit of their objects.

Globalisation is unlikely to make a significant contribution towards the strengthening of the rule of law. Both locally and internationally, general legal norms remain essential if we are to tame arbitrary power deriving from political and economic inequality. The guarantee of a minimum of personal security remains basic to any worthwhile democratic polity. Democratic citizens need a robust rule of law, even if international business does not.


Scheuerman, W. E. , Economic Globalization and the Rule of Law", Constellations, Vol. 6, No. 1, 1999Jayasuriya, Kanishka, Globalization, Sovereignty and the Rule of Law: From Political to Economic Constitutionalism? " Constellations, Vol. 8, No. 4 Kingsbury, Benedict, Sovereignty and Inequality, EJIL 9, 1998 David Kinley, Human Rights, Globalization and the Rule of Law: Friends, Foes of Family? , April 2003 Habermas, Jurgen, The Postnational Constellation and the Future of Europe, The Postnational Constellation: Political Essays, Cambridge, Polity Press, 2001 Donald J. Sorochan Q. C. wrote: Globalisation: The Destruction of the Rule of Law, by Connie Fogal, Defense of Canadian Liberty Committee

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