Global Law Before the State? On Canon Law as a Transnational Regime

Abstract

According to Harold Berman, modern Western law is based on the establishment of canon law in the eleventh and twelfth centuries. By this account, the original role‐model for our modern concept of law is already transnational, and the idea of law being a characteristic instrument of nation‐states is only a subsequent event. The article discusses this thesis and scrutinizes its relevance for current attempts to develop a concept of transnational law and transnational constitutionalism. In doing so, it also raises a critical question: if our modern concepts of law are based on canon law, is it possible that some main characteristics still reflect this origin? Could it be that a certain ‘motif of the unity of the constitution’ – a motif which, according to Gunther Teubner, underlies all kinds of societal constitutionalism, even those insisting on social pluralism – is a hidden legacy of canon law? And if so, what might be the alternative?