Currently, the transnationalisation of law is strongly opposed by certain sectors of society and major international actors. Discourses against those perceived as invasive foreign judges and norms seem to be intensifying. The approach adopted in this publication departs from the rationale of Western mainstream views of law and polity, and invites to rethink the allegedly necessary link between these two categories. What are the main conclusions of your study?

My point in this short article is first of all an analytical one – that we should not think of law as being necessarily linked to a particular polity, and that there have been many historical examples of law being dissociated from any meaningful notion of a polity. The medieval lex mercatoria is a good example, but in many cases, royal edicts or imperial legislation over far-flung territories equally had no link with the polity they governed. Law has often been tied to authority, not necessarily polity. The link we often presume today – of law being the reflection of a polity’s values and choices – is historically rather the exception, but it does of course hold much political appeal. “Taking back control” seems to naturally lead to a realignment of law and polity in the name of democracy – even if this begs so many questions about democracy itself.

Your article points out that, prior to the emergence of the modern state in Europe and its territorial logic, the coexistence of different legal systems was widely assumed. Could we talk about a “return” to an earlier era separated from the claims of a unitary all-inclusive state legal framework? To what extent has globalisation contributed to this “return”?

Much has been made of a supposed “new medievalism” in the age of globalisation, but it would be simplistic to see the emergence of a transnational legal order as a return to earlier times. The driving forces of legal development are different, and the state continues to play a central role, even if perhaps not as dominant a role as a few decades ago. But it is certainly true that today, many more people identify law as not only the law of “their” state, but also the law of regional communities, such as the European Union, or international law, for example international human rights law or international trade law. Many people continue to think of religious and indigenous law as law alongside state law. And this list does not even include the legalities recognised in expert communities – in international finance, product safety or environmental matters. Law is multiplying and is increasingly created by a multitude of actors, thus rendering the neat equation of law and polity, or law and state, anachronistic.
 
You also shed light on both the risks of instrumentalising the law for the perpetuation of class imbalances and the limits of the frequently argued community-representativeness, neutrality and impartiality of the law. In this context, what would be the relationship between “state law” and “transnational law”? What can be the role/weight of the internationalisation of law?

In the first place, the piece offers a critique and invites us to rethink the law-polity nexus so widely accepted. This helps us to see how the reference to a polity may be a necessary, or at least useful, fiction for modern law, a fiction that sustains law’s legitimacy. However, it should not blind us from the fact that many actors – the poor, minorities, foreigners, and perhaps most of us – have little influence over the law, and that we should not stop asking hard questions about inclusiveness and justice merely because something is “the law”. This holds equally for state law and transnational and international law, only it is more obvious for the latter. Transnational, international law is by no means a priori better or more inclusive than state law; but it can sometimes help to remedy deficits of state law and correct exclusion and injustice a little bit. Like all law, international law can be mobilised for good purposes as well as for bad ones, and before we can assess it we need to know which choices and values it embodies. 

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Full citation of the article:
Krisch, Nico. “Law and Polity: Contingency, Fiction, Loss.” International Journal of Constitutional Law 16, no. 4: 1223–31 (October 2018). doi: 10.1093/icon/moy096.

Good to know: members of the Graduate Institute can download the article via this page of the Institute’s repository.

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Related information: Professor Krisch has been awarded the inaugural Max Planck-Cambridge Prize for International Law. Read more here. 

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Interview by Ana Beatriz Balcazar-Moreno, PhD candidate in International Law; editing by Nathalie Tanner, Research Office.
Banner image by Masterrr/Shutterstock.com.