Cadmus

New Paradigm for Global Rule of Law

Abstract
Law is both a condition and a consequence of social development, an outcome of the broader social process, a form of social organization which channels social energies based on the relative strength of past practice and precedent, the present balance of power and emerging social values. Values are the bedrock of social process and the driving force for social activism. Historically, law evolves as a mechanism for conflict avoidance and resolution founded on the practical management of conflict and higher values, made possible by the implicit acceptance and internalization of the authority component of collective expectations. Established law acts as a conservative force of the status quo subject to continuous pressure to evolve from the changing public conscience and social values. Lasswell’s comprehensive model of social process highlights the contribution of multiple participants to the evolution of law at the macro and micro level, including the role of individual value demands and the potential assertive power of the human community as a whole. The article explores the potential role of non-states in changing international law regarding the legality of nuclear weapons. An appreciation of the integral relationship between law, politics and society is essential to a fuller understanding of social, power and legal processes and the goal of universalizing peace and human dignity.
Law is a powerful instrument for social development. At the same time it is itself a product of social development. The objective of this paper is to formulate a paradigm of law and development that will foster realization of the values essential for addressing global issues and the positive evolution of the human community. Law is a response to the problems that emerge from the social process and from the process of social development. Human problems represent conflicts between values that change over time. Effective solution to human conflicts depends on our ability to arrive at clarity and consensus regarding those values which are most conducive to human progress.1, 2, 3, 4 An appreciation of how law has developed historically in response to past conflicts may serve as a guide to understanding its present status and possible future directions. This historical focus must include not only the formulation of law, but also its actual practices and outcomes. This is apparent when we consider that the eradication of discrimination or corruption depends as much on the prescription and application of prevailing law as it does on the prescription of new law.
Law is both a condition and a consequence of social development. All aspects and dimensions of society impact on and are influenced by the rule of law. For example, in recent months, the European financial crisis has exerted strong pressure for modification of the laws governing financial management of EU member states as well as the powers and responsibilities of national and European institutions to address the challenges posed. Changes in law and public policy relating to the financial management of banks and central banking institutions constitute important components of the policy response. Similarly, rapid advances in technology and communications impact on laws relating to regulation of the Internet and intellectual property. Political activism, like the Arab Spring, Moscow Winter, Occupy Wall Street Movement, has thrown into question the constitutional legitimacy of governments and the fundamental rights of citizens. Soaring levels of unemployment have compelled changes in labor and social welfare policies and greater government responsibility for the economy. The Fukushima disaster has led to changes in law and public policy regarding nuclear energy in Germany and Switzerland and raised legal issues related to the rights of sovereign nations to environmental protection from the actions of their neighbors. These are just a few of the many aspects of social change which influences and is influenced by the prescription and application of law. An appraisal of the relevant trends and conditions which have influenced legal outcomes against the values that are claimed and preferred requires acute analysis not only of past precedent and the present balance of interests and forces; it must also take into account the likely direction of their future development.
Law does not evolve in a vacuum. It evolves with human agents as interest articulators and authoritative and controlling decision makers. It evolves as an important dimension of the wider quest of society for more effective institutional arrangements to fulfill the goals of the collective. The global challenge is to formulate creative strategies that will facilitate the most rapid and satisfactory progress for global society as a whole. A greater theoretical understanding of the relationship between law and social development and the processes governing their interaction and evolution should enable us to arrive at practical measures to resolve present conflicts and advance the collective human agenda.

1. Law as Outcome of Social Process
As an aspect of social organization, law is a mechanism for channeling social energies and interests. At any point in time, law consists of a more or less precarious balance between the past, present and future. Application and development of law are social processes that are influenced by multiple forces: the force of past precedent, established custom, and accepted tradition; the force of present political, economic and social power; the force of emerging aspirations; and ideas about the shaping and the sharing of the basic values for which there is a demand for acceptance.
Values are the bedrock of the social system and a driving force for social development. They represent the quintessence of society’s acquired knowledge and convictions regarding the essential principles for survival and sustained human accomplishment. Law reflects the arena of important values in society and the precise points at which there is contention between conflicts about those values. For example, when sophisticated, rapid-fire, automatic weapons are involved in tragic instances of mass homicide, public outrage in the US rises once again to challenge antiquated constitutional protection for citizens’ rights to bear arms, a right originally instituted at a time when ‘arms’ referred to single shot, mussel-loaded flint lock pistols and muskets.* Thus, legal choices go to determine what to conserve, what to bury, what to affirm and what to enhance. Since values are changing rapidly in the modern era, social change leads to changes in understanding of the law as well as reconstruction of its prescriptions, application and enforcement over time. Growing support for government curbs speculative investments by banks and huge compensation packages for bank executives, which reflects changing social attitudes toward the social responsibilities of banks as institutions of public trust. Law is a continuing process of authoritative and controlling decision-making within which the community seeks to defend and secure the common interest. It is a continuing challenge for the present and the future.
The founding of the United Nations Organization (UN) illustrates this process of interaction and precarious balancing and its evolution over time.† Although conceived and cast in the highest idealistic terms of universal human values, the real basis on which the UN was founded was the overwhelmingly dominant physical, economic and political power of the allied nations which emerged victorious in World War II. The UN can be seen as an outcome of a global conflict. The UN Charter creating a semblance of democracy and universality in the composition of the General Assembly nevertheless concedes effective power concentrated almost exclusively in the Security Council, in which the five permanent members possess absolute power to act in concert on behalf of the world or in opposition to one another in pursuit of their own narrow self-interests. The basis for this undemocratic arrangement was the old concept of national sovereignty, a legacy of three centuries of nationalistic consolidation and competition, which already showed signs of irrelevance to cope with the emerging problems of an increasingly globalized world. Nationalism, power and idealism were combined in a formula that was sufficiently prescient to avoid world war for the last 65 years, yet increasingly powerless and inept to cope with the emerging problems of the 21st century.

2. Evolution from Coercion to Rule of Law
Historically, the threat and use of coercion have played a central role in determining the outcome of social processes. Conflict and coercion are outcomes of the social process. These outcomes we may identify and map as a process of effective power.‡,5 Conflicts about effective power are reflected in the issue of States’ rights and abolition of slavery in America. These issues were resolved on the battlefields at Gettysburg, Shiloh and Vicksburg. The liberation of Libya in 2011 from four decades of dictatorship was similarly resolved by force of arms. If all social relations were exclusively a function of conflict, then the strongest would inevitably prevail on the basis that might is right. However, as societies evolve they generate understandings about managing power and develop strategies for conflict resolution. As conflict becomes increasingly expensive and destructive, protagonists frequently determine that the costs of conflict may exceed the potential gains. At this point the power brokers would look for ways to stabilize conflict and manage fundamental decision making by agreement and understanding. As democracy and human rights become more prevalent as sources of authority, they support tolerance and subordinate exclusive resort to naked power, both internally and internationally. Thus, the Arab Spring in Egypt, for example, achieved peacefully what their neighbors achieved by violence. Law evolves as a sublimated alternative to physical coercion, but legal authority retains the capacity for coercion as its ultimate foundation and reinforcement. Social authority comes to replace physical coercion as the primary means for resolving conflicts, but its power is accepted and respected because it retains an explicit or implicit capacity for physical enforcement, as well as the use of authority as a base of power.
Legal authority evolves as an alternative mechanism for conflict avoidance and resolution founded on higher values such as peace, collective security, human rights, justice and due process. Law evolves as an instrument to manage the politics of conflict based on authorized decisions and agreed upon rules of social order. Law is not the only social institution that plays this role. Money also became an important factor in the transition from violence to social order, providing economic incentives, rewards and punishments to protagonists to eschew resort to force. Historically, money has been used to resolve disputes, appease aggressors, compensate victims, propitiate antagonists, and incentivize competitors. But as governance and law evolved as recognized authorities, coercive force progressively gave way to social convention, legislation and jurisprudence as the principal means for dispute resolution. This evolution from physical violence to social power to authorized competence and higher values is an affirmation of the value basis of law. It replaces the principle that might is right and applies value-based principles to affirm the rights and enhance the power of the weaker segments of society.
This process is evident in the field of international relations where the habitual resort to war between nation-states that characterized European affairs for centuries has now been effectively replaced by an institutionalized political and legal framework. In the words of Dutch security expert Rob de Wijk, “War in Europe has become unthinkable.” Similarly, though with less absoluteness, establishment of the UN system after the Second World War has replaced periodic conflicts between nation-states, widespread imperialistic ambitions and colonialism with treaty negotiations across the conference table, debate in General Assembly and Security Council, judicial inquiries, international commissions, arbitration, mediation, binding and non-binding resolutions, and countless other mechanisms for channeling energies from coercive violence into political, legal and intellectual processes. This transition from violence to law continues today in both national and international contexts.
Law involves an implicit acceptance and internalization of social authority which is reflected in the constitutionalization, that is to say, the acceptance of the allocation of fundamental decision making authority for society which generates shared expectations about the shaping and sharing of human values. Law codifies the most enduring values which emerge as social norms and customary practices accepted by the community, often representing the “living law” of the society.6 Indeed, public acceptance of basic expectations is a crucial aspect of law. Unless the community accepts the legitimate authority of its authorized decision makers and their prescription, application and enforcement of law, such authority may lose its authoritative foundation and be compelled to resort to coercive force to maintain the status quo. Unless those laws reflect accepted norms and expectations, such acceptance is unlikely. Thus, rule of law is based on the major expectations which the community holds about the exercise of authority and control in the common interest. Law as codified strives to be the embodiment of the basic values reflected in the public conscience of what the collective of human beings agree to accept, that is to say, the collective fundamental expectations about authority, control, and the respect for basic values.7

Winston P. Nagan, Member, Board of Trustees, World Academy of Art & Science; Director, Institute for Human Rights, Peace & Development, University of Florida, USA
Garry Jacobs, Chairman of the Board, World Academy of Art & Science; Vice-President, The Mother’s Service Society, India
* Amendment II of the United States Constitution – The Second Amendment was adopted on December 15, 1791, along with the rest of the United States Bill of Rights. It is the part of the Bill of Rights that protects the right of the people to keep and bear arms. The right to keep and bear arms, often referred as the right to bear arms or to have arms, is the assertion that people have a personal right to fire arms for individual use, or a collective right to bear arms in a militia, or both.
† The United Nations Organization was founded in 1945 after World War II to replace the League of Nations, to stop wars between countries, and to provide a platform for dialogue.
‡ More generally on the relation of law to social process see Lasswell and McDougal, “The Relation of Law to Social Process: Trends in Theory about Law,” University of Pittsburg Law Review 465 (1976).
1. Myres McDougal, William Reisman & Andrew Willard, “The World Community: A Planetary Social Process,” Faculty Scholarship Series Paper 753 (1988) http://digitalcommons.law.yale.edu/fss_papers/753 The most recent expression of the idea of a global social process and how to map it is found in the article.
2. Myres McDougal, “International Law and the Future,” Faculty Scholarship Series Paper 2662 (1979) http://digitalcommons.law.yale.edu/fss_papers/2662
3. Harold Lasswell, “The Inter-relations of World Organization & Society,” Yale Law Journal 55 (1946): 889-909 http://digitalcommons.law.yale.edu/fss_papers/3120/
4. Harold Lasswell, “Future Systems of Identity in the World Community,” in The Future of the International Legal Order eds. Cyril Black & Richard Falk (Princeton: Princeton University Press, 1972).
5. Harold Lasswell & Myres McDougal, Jurisprudence for a Free Society: Studies in Law, Science and Policy Vol. II, Appendix IV (Leiden: Martinus Nijhoff Publishers, 1992), 1439-1488. Lasswell and McDougal provide a detailed outline and map of “The Community Power Process: An Outline for Policy-Oriented Inquiry”.
6. Louis D. Brandeis, “The Living Law,” Illinois Law Review 10, no.7 (1916): 461.
7. Myers McDougal, Harold Lasswell & William Reisman, “The World Constitutive Process of Authoritative Decision,” in McDougal & Reisman, International Law Essays (New York: Foundation Press, 1981). The establishment of control conjoined by authority reflects the emergence of basic constitutional understandings and processes. A comprehensive description is given.


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