Globalization of Law Lecture 4 | Global Governance

On the afternoon of October 28, 2022, the Institute for International and Area Studies (IIAS) for Tsinghua University hosted the fourth lecture of the “Globalization of Law” Series for the fall semester at Room 205, Central Main Building. Themed “Global Governance,” the lecture was delivered by Lu Nan, Associate Professor of the School of Law, Tsinghua University and a member of the IIAS Teaching Committee, and was presided over by Ma Yue, Assistant Professor of IIAS. IIAS faculty members and doctoral students, scholars and students from outside the Institute at home and abroad, and others interested in the topic attended the lecture online or offline.

The lecture was divided into four parts: the background of The Mystery of Global Governance by Professor David Kennedy, early explorations of the U.S. academic community in global governance, main research approaches of international law to global governance, and critical reflections on constitutionalism in international law. In the first part, Dr. Lu Nan introduced the background of the paper by Professor David Kennedy in three aspects. First, against the backdrop of globalization in the 21st century, the deficiencies of traditional international law research on global governance have come to the fore, as reflected in the dissolution of the “Westphalian duo” (the dichotomy between domestic law and international law). Second, in response to the new problems, constitutionalism in international law has become a focus of research, for example, in the United Nations, the World Trade Organization and the European Union. Third, since 2008, the global governance system has been constantly evolving, which is a process featured by changes, choices, restabilization, etc., prompting scholars around the world to further inquire into global governance. Then, Dr. Lu Nan reviewed how the paper was introduced to China. In 2008, Professor David Kennedy published the paper based on a lecture manuscript, and then the paper was revised and included in a collection. In 2011, Liu Yang translated the first part of the paper and published it on Tsinghua Forum of Rule of Law.

In the second part of the lecture, Dr. Lu Nan introduced the early explorations of the U.S. academic community in global governance. He noted that the issues international law deals with are complicated, and the U.S. academic community made a lot of explorations in the early stage. He outlined three representative views. The first was the Yale project on World Public Order, which claimed that that global governance involved a world public order with procedures and values, modes of communication, persuasion and compulsion. The second was put forward by the Manhattan school centered on Columbia University and New York University. For the Manhattan school, global governance was to be as much a work of the spirit, a work on the self, as a structure of rules and institutions. The third was put forward by Harvard and Yale thinkers who believed that the key to global governance lay in national law, national courts and the procedures for allocating authority among them, and the focus was on dispute resolution and the chastening of political will. As Dr. Lu sees it, the early explorations in global governance were a combination of wisdom in different disciplines, which were included in the study of law and then pushed to the level of international law.

In the third part of the lecture, Dr. Lu Nan stated that on the basis of the early explorations, the study of global governance in international law has given birth to six major schools, namely the global regulation theory, global administrative law, societal constitutional theory, the new governance theory of democratic experimentalism, the third world approach to international law and expert global governance. Dr. Lu introduced the representatives and basic concepts of the six schools, which emphasize differently and have their respective solutions. Then, he summarized the development trends of international law theory common to the six schools, i.e., breaking the static division between international/domestic law, public/private law, structure/process, and hard/soft law, and reconstructing the legal system; transcending the state-centric narrative and shifting towards the perspective of world society; highlighting the role of program design and control in global governance, paying high attention to the status of law in global governance, and developing the narrative of legal pluralism.

In the fourth part, Dr. Lu stated some critical reflections on constitutionalism in international law. For example, constitutionalism underrates the density of rules and systems in the global sphere; the disorder, pluralism, uncertainty and confusion among rules, principles and systems can’t be ignored, and neither can the existence of global informal rules and secret rules; constitutionalism gives short shrift to the realignment of power and authority brought about by the reconstruction of global governance, and to the degree of global injustice and the intensity of changes. Generally, constitutionalism in international law involves deviation in purpose, procedure and decision making. These critical reflections are not only directed towards constitutionalism in international law but also offer a word of caution to countries, governments, experts and other actors engaged in transnational activities who intend to participate in global governance. They also provide aspirations for China’s participation in global governance.

During the Q&A session at the end of the lecture, Dr. Lu had a lively exchange with the audience on a range of topics, such as the interaction between international economic law and global governance, private governance in global governance and trends of private order.

Lu Nan is an associate professor at the School of Law, Tsinghua University and a member of the IIAS Teaching Committee, and holds a doctorate degree in law from Tsinghua University. His research interests include comparative law, legal culture, legal theory, and legal sociology, and he is dedicated to research on the basic theory of comparative law, globalization of law, as well as legal and development issues. He has published a number of papers, such as The Advantages and Disadvantages of Comparative Law in Global Era, The Origin and Change of the Worldwide Index of Rule of Law, The Status and Function of Non -Western Legal Cultures in Teaching and Research of Comparative Law, and The Anonymous Law Merchant: The New Trend of Legal Transplant in Global Era. He has authored several books, including A Reader of Comparative Law, A Reader of Jurisprudence, and Globalization of Law: China and the World.

Contributed by: Ding Ruilin
Proofreaders: Dong Hui, Ma Yue
Typesetting editor: Cheng Yao