On the Singularity of Law

Thus, situating myself within a cosmopolitan polycentricity, I discern two salient interpretive strategies purporting to ascribe meaning to what is apprehended as “law”—neither of them ever appearing in pure guise, both of them always formulated as narrative predilections (or valorizations).

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The first approach discounts the singularity of law. Underlying this management-driven, productivity-oriented response to law-texts is the decision to instrumentalize law—that is, to press law into service in support of an agenda diversely introduced as “harmonization,” “integration,” “uniformization,” “unification,” or “globalization.” This program of rationalization’s principal discursive configurations are law-as-meta-law and meta-law-as-law. The initial variation on the theme of trans-legality concerns the move from localism to transcendentalism. Assumptions informing the prescriptive case for law-as-meta-law include the idea that law’s facticity must be regarded as the largely obsolete remnant of an early-modern worldview mired in diverse brands of stultifying nationalism; the related idea that as long as law’s particularism continues to abide, not enough has been done to move beyond the post-feudal shackles of melancholic parochialism; and the further idea that meta-law is worthy of high estimation as a progressive political, economic, or social weapon. For the partisans of law-as-meta-law, the responsible thing to do in the face of obstinate traces of stupefied localism is to surpass them, that is, to foster an emancipatory project of liberation from prejudice that moves beyond/beneath any culturality/traditionality of law. Unsurprisingly, advocates of this position, possibly taking the view that law-texts are striving for self-realization through assimilation into a totality and for reconciliation inter se within the totality, find law inherently repeatable and indeed incessantly repeated. Almost inevitably envisaging law as consisting of basic units somehow unconnected in any meaningful way to any local network of intelligibility, which they proceed to make isomorphically homogeneous across borders, the partisans of law-as-meta-law readily refer to the transportability of law and, indeed, to the obviousness of the transportability of law.

The other main variation on the theme of transcendentalization involves meta-law-as-law—that is, supranational regulatory or conflict-resolution regimes operating, often outside the realm of governmental law-making or international treaties and within self-established procedural frameworks, as issuers and enforcers of sometimes highly specialized rules. Whether one has in mind the Apparel Industry Partnership, the WTO Appellate Panel, the International Federation of Consulting Engineers Model Contract, the lex mercatoria, the Agreement on Trade Related Aspects of Intellectual Property Rights (“TRIPS”), or the World Heritage Convention, “global” rules of governance are understood as functioning in a standard manner showing no meaningful deviation from one locus to the next—that is, as being implemented “irrespective of the legal traditions and the economic and political conditions of the countries in which they are to be applied.” Again, law is found to be inherently repeatable and indeed incessantly repeated. Even within the European Community, where the Treaty of Rome’s preoccupation is with the harmonization of laws (i.e., not with uniformity, equivalence, or convergence) and where all directives concede a national margin of appreciation to Member States, designations like “European Contract Law,” “European Tort Law,” “European Private Law,” “European Administrative Law,” “European Public Law” (dereferentialized labels all), to confine myself to the smallest number of illustrations culled from the plethoric references to “one law,” point to the view that “[u]niformity, in an ideal [European Community] would be both substantive and procedural. Not only would black-letter law be the same in all Member States, as if diligently copied or faithfully translated from a single private law code, but judicial remedies would reflect an identical sense of procedural justice as well.”

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