International pluralism and the rule of law

Abstract

Does international law have a place in a world being reshaped by globalization? Sceptics argue that international law belongs to a world order, based on relations among sovereign states, that is rapidly receding into history. But such a claim itself invites scepticism. Globalization is a journalist's term?a rough tool for making sense of what appears to be a trend toward a more integrated international economy and its attendant cultural homogenization.1 Academics who use the term link it to the proliferation of intergovernmental organizations and transnational interest groups concerned with human rights, the environment, or economic issues, and to the emergence of a new normative framework, distinct from classical ('Westphalian') international law, for 'global civil society' and 'cosmopolitan democracy'.2 Whether these trends will continue and how they might affect familiar political arrangements is not yet clear. It is possible that international law will disappear along with the pluralist system of sovereign states that the new global order is said to be replacing. It is more likely, however, that the old system will continue in a new form, and that there will be a place for international law in the new order. In this article, I discuss the character of law in the international system, on the assumption that globaliz ation will not destroy that system. But even if international law does vanish, perhaps to be replaced by a different system of world law, the issues I consider here will remain relevant because they are inherent in the idea of law itself. Democracy, if it is to be more than a tyranny of the many, requires a specific kind of legal order. It presupposes an order governed by the rule of law?one that limits as well as empowers collective decision-making.3 Because 'the rule of law' is more often invoked than understood, the meaning of that expression cannot be taken for granted. Accordingly, those who are concerned with shaping the emerging global order could profit from a careful effort to reconstruct that idea. I hope the reader will bear this in mind in working through the argument of this article. We can begin by distinguishing two modes of human association, the first a relationship based on laws governing the transactions of independent, formally