The ‘Law and Polity’ project
The type of polity we know as the state has assumed centre stage in the story of the making of modern law and, in particular, in the production of modern law as a systemic achievement. Within the dominant narrative, other conceptions of legal normative system and order have been defined in a manner that typically treats them as secondary elements within the law-state configuration; whether (1) as an ersatz, or less developed, version of the paradigm of state law and legal system (as in some versions of EU law, or of public international law and its ‘international community’), or (2) as contained within and conditioned by the general framing capacity of the legal and political order of a particular state (as in our conventional understanding of the many ‘disciplines’ of modern law – including the ‘public law’ disciplines of constitutional law and administrative law and the ‘private law’ disciplines of family law, property law, and the law of obligations), or (3) as dependent upon the extension of the legal and political framing of a particular state (as in subaltern legal orders associated with imperial states) or (4) as independent of any particular state but reliant for recognition and enforcement on the operation of state legal orders in general (as, for example, in the transnational lex mercatoria).
So understood, the state is the vital political organ with which we associate much of modern law. Many of our contemporary ideas of legal order and legal system, indeed, both presuppose and enable the modern state as the key organising framework of people, territory and government. The state, on this view, possesses two key properties. It supplies both a cultural framework of political community and a material framework of institutional authority within which legal order can developed and be sustained. Equally, however, a certain developed conception of legal order is necessary to the achievement and sustenance of the state. It follows that legal order, and the epistemic framework associated with legal order, has been as crucial to the accomplishment of the state as the state has been to the accomplishment of legal order.
Yet to what extent, if at all, should the symbiotic coupling of state and legal order, with its strong indication of mutual implication and mutual support (with all its associated benefits and pathologies) continue to dominate our understanding of the relationship between law and polity, and to what extent, more generally, should the very sense of a close coupling of law and polity (whether or not a state polity) continue to dominate our understanding of law and legal order? Do other more or less state-independent patterns of modern law contain lessons for forms of law and legal ordering that can exist in the absence of, or with a less central positioning of the (state) polity?
The state-centric perspective, so central to much thought in constitutional and public law, and also to the expanses of both private law and of modern legal theory, is challenged by three key tendencies. Each of these challenges is itself of long standing, but has become more urgent under conditions of contemporary globalization in which the legal and political authority of the state is subject to new pressures and contra-indicators.
In addressing these challenges we should in particular bear in mind the way in which the two key framing properties of the modern state polity – the cultural framework of political community and the material framework of institutional authority, together with the epistemic framework we associate with the juridical order of the modern state polity, can be retained, or may be replaced, replenished, supplemented or transformed through new legal and political forms. This set of inquiries involves rethinking the relationship between law and polity in significant ways.
Challenge number one – polity nesting
The first challenge is concerned with the compound quality of many state legal orders and political communities. Federal thought and other sub-state focused conceptions of political community and institutional authority traditionally, though far from uncontroversially, assume a model of the state as a kind of legal and political community of communities and authority of authorities. Does the recent rise of both sub-state nationalism and supranationalism (e.g. the European Union and other regional organisations, but also the UN at the global level) consolidate our sense of the state as just one level of political community and institutional authority among many, both nesting smaller polities and nested within larger polities?
Challenge number two – domain specialization
The second challenge concerns the general character of state law, and how that general character has provided an umbrella for a range of specialist legal disciplines and functions. For many, the proper units of legal order (and associated spheres and modes of social integration) are not the states and their constitutional law, or even territorial political communities in general, but the special (sub)systems of private law, social law, enterprise law, mercantile law, family law etc. Such functional specialisation always pushed beyond the boundaries of the state – think, again, of the history of the lex mercatoria – but this has become all the more pronounced in age of functionally specific transnational or global regimes in areas as wide-ranging as trade law, environmental law and criminal law. In the trans-nationalisation of functional specialisation we see the rise of a new form of non-state polity (WTO, global climate change regime, lex sportiva, lex digitalis, etc.). Is this process of polity differentiation inexorable, and does it require us to reassess the limits of the integrative capacity of the state polity? To what extent and with what consequences can these new domain-specific regimes, and/or their networked interconnections (including the connective normative framework we associate with various strains of private international law and models of legal pluralism), as well as the transnational corporate interests, civil society forms and/or social movements potentially associated with them, be conceived of as polities – as species of public authority with cultural and material attributes resembling those of statehood?
Challenge number three – legal disembedding
Unlike the first two challenges, the third challenge does not come from the emergence or enhanced profile of polities alternative to the state and of the development of legal ordering appropriate to this, but from the other side of the equation; namely, from the disembedding of law from any and all particular polity settings and its capacity to move between and stand over a range of polity settings. Precedent for this can be found in the development of public international law which, as noted above, has traditionally been only tenuously linked to an ‘international community’, but there is a broader contemporary movement of ‘cosmopolitan law’ or ‘global law’ in which law is treated as increasingly detachable from its cultural and institutional setting, and so no longer as polity-specific, or, in some versions, as no longer even necessarily ‘hanging together’ as an ordered assemblage. Again, we find early examples of such ‘deracinated’ and even disaggregated law in the traditions of ius gentium and ius commune, but this movement has developed exponentially with the rise of a ‘global’ legal consciousness amongst legal, judicial and broader political elites and a renewed vocabulary of legal universalism and doctrinal mobility in human rights, criminal law and other areas.
Neil Walker (Regius Professor of Public Law and the Law of Nature and Nations)
Cormac Mac Amhlaigh (Senior Lecturer in Public Law)
Claudio Michelon (Professor of the Philosophy of Law)
The Law and Polity Project has been generously funded by the Royal Society of Edinburgh and Edinburgh Law School.