This document discusses Duncan Kennedy's theory of "The Three Globalizations of Law" and how it relates to legal developments in Latin America. It argues that Kennedy's framework helps challenge oversimplified views of Latin American law as merely imitating Western models. The document analyzes how different aspects of legal thought were "globalized" at different times and then adapted to varied local contexts and political projects. It also explores how prevailing narratives of Latin American law's failures have sometimes aligned with instrumental objectives to promote certain legal and economic reforms.
Sociological school ..Analysis on the Contribution of Roscoe Pound.Neha tiwari
Sociological school
{Analysis on the Contribution of Roscoe Pound}
The Sociological approach to the study of law is the most important characteristic of our age. Jurists belonging to this school of thought are concerned more with the working of law rather than its abstract content
This slide is used as a reference on the course PA302 - comparative administrative thoughts. The slide talks about the relationship between the Administrative states of the United States and its society
Sociological school ..Analysis on the Contribution of Roscoe Pound.Neha tiwari
Sociological school
{Analysis on the Contribution of Roscoe Pound}
The Sociological approach to the study of law is the most important characteristic of our age. Jurists belonging to this school of thought are concerned more with the working of law rather than its abstract content
This slide is used as a reference on the course PA302 - comparative administrative thoughts. The slide talks about the relationship between the Administrative states of the United States and its society
The increase in political instability as well as anarchy and anomie in the world is a prominent feature of politics
in the 21rst century.It has dire consequences for the population in the country torn apart by cilvil war or anarchy.
It consequences for the handling of the climate change question and the general problem of environmental
degradation. Global ecology coordination can only work if the participating governments lead strong states. The
more governments have to concentrate upon anarchy or civil wars, the less the time and resources would be
available for environmental policy-making and ecological protection. And environmental destruction tends to
worsen in countries that are not “well-ordered” (Rawls, 1971), as ecological laws are disobeyed and natural
resources dissipated until exhaustion or annihilation
Week 1 politics and power history fair start representation and political pro...Wayne Williams
First week of PowerPoint lecture notes for Politics and Power in America course. Examines what politics is, differences in democracies, contrasted with the meaning of a Constitutional Republic, such as that of the United States.
KAFKAS ÜNİVERSİTESİ/KAFKAS UNIVERSITY
SOCIOLOGY
Course
LECTURE NOTES AND POWER POINT PRESENTATIONS
Prof.Dr. Halit Hami ÖZ
Kars, TURKEY
hamioz@yahoo.com
The increase in political instability as well as anarchy and anomie in the world is a prominent feature of politics
in the 21rst century.It has dire consequences for the population in the country torn apart by cilvil war or anarchy.
It consequences for the handling of the climate change question and the general problem of environmental
degradation. Global ecology coordination can only work if the participating governments lead strong states. The
more governments have to concentrate upon anarchy or civil wars, the less the time and resources would be
available for environmental policy-making and ecological protection. And environmental destruction tends to
worsen in countries that are not “well-ordered” (Rawls, 1971), as ecological laws are disobeyed and natural
resources dissipated until exhaustion or annihilation
Week 1 politics and power history fair start representation and political pro...Wayne Williams
First week of PowerPoint lecture notes for Politics and Power in America course. Examines what politics is, differences in democracies, contrasted with the meaning of a Constitutional Republic, such as that of the United States.
KAFKAS ÜNİVERSİTESİ/KAFKAS UNIVERSITY
SOCIOLOGY
Course
LECTURE NOTES AND POWER POINT PRESENTATIONS
Prof.Dr. Halit Hami ÖZ
Kars, TURKEY
hamioz@yahoo.com
I download this document from heinonline,through University of Colombo server. I wish to share this documents with my students in Public International Law course for academic purposes.
1. How did Islamic scholarship spark the Italian Renaissance.docxdorishigh
1. How did Islamic scholarship spark the Italian Renaissance?
2. Christianity spread across Europe through:
A) The recognition that the story of Christ’s miracles were true
B) Missionary work designed to convert the most powerful local people who could use their influence to convert others
C) Armies sweeping across the Byzantine Empire
D) The reputation of Jerusalem as a Holy City
3. Why did Europe wait until the fifteenth and sixteenth centuries to begin exploring the world? What elements had to occur before exploration was possible?
4. Islam spread quickly through:
A) The Word of God and the Angel Gabriel
B) Missionaries sent to ports throughout the Asian, African, and European continents
C) Ties with the conquering Islamic Empires
D) Umayyid Caliphs and their network of imams
5. Describe the similarities among global religions that experienced a reformation during the sixteenth century.
6. The primary difference between Christian-occupied and Islam-occupied Jerusalem during the Crusades was:
A) Christians created an atmosphere of peace and tolerance where multiple faiths were celebrated
B) Muslims allowed the active conversion of willing members to Christianity
C) Christians developed a system of feudalism during their occupation
D) Muslims allowed people of any faith to live there peaceably so long as they paid a tax
7. What has been the traditional role of women in society throughout history? How does the wealth of a civilization affect the lives of women?
8. The Plague helped spark the Renaissance by:
A) Creating a desperate need for wage labor, which balanced the economy of a feudal society and led to a new class of patron-supported scholars
B) Killing people from all classes, creating a need for artistic expression
C) Making the need for medical knowledge obvious, sparking the scholarly revolution
D) Passing through trading ships, which also brought ideas from abroad that inspired Leonardo da Vinci and other Renaissance thinkers
9. What is legal pluralism? Provide at least two examples and explain the role of legal pluralism in history.
10. The religion known as “Divine Faith” was:
A) The Catholic response to Protestant heresy
B) A Protestant Sect following the teachings of Zwingli
C) The Aztec adoption of Catholic ideals
D) The conglomeration of beliefs embraced at the Court of Akbar
11. How do we know about Mesoamerican cultures whose historical records do not survive? Please provide specific examples about the Chavin, Olmec, Maya, Aztec, Teotihuacan, or Inca.
12. The African Mali Empire consisted of three imperial powers, named:
A) The Songhay, Mali, and Ghana
B) The Benin, Swahili, and Jenne
C) The Battuta, Swahili, and Benin
D) The Songhay, Jenne, and Griots
13. Why did the establishment of nation-states occur after the religious turmoil of the sixteenth century? What is the connection between the reforms and the growth of secular power?
14. Columbus ended his career:
A) Satisfie ...
Consequential CourtsJUDICIAL ROLES IN GLOBAL PERSPECTIVE.docxmargaretr5
Consequential Courts
JUDICIAL ROLES IN GLOBAL PERSPECTIVE
Edited by
DIANA KAPISZEWSKI
University of California, Irvine
GORDON SILVERSTEIN
Yale Law School
ROBERT A. KAGAN
University of California, Berkeley
CAMBRIDGE
UNIVERSITY PRESS
xii Contributors
Manoj Mate is Assistant Professor of Law, Whittier Law School, and Assistant
Professor of Political Science (by courtesy), Whittier College.
Amnon Reichman is Professor of Law, University ofHaifa (Israel).
Druscilla L. Scribner is Associate Professor of Political Science, University ofWis-
consin, Oshkosh.
Martin Shapiro is James W. and Isabel Coffroth Professor of Law (Emeritus),
Berkeley Law, University of California.
Alexei Trochev is Associate Professor, School of Humanities and Social Sciences,
Nazarbayev University (Kazakhstan).
Introduction
Diana Kapiszewski, Gordon Silverstein, and Robert A. Kagan*
In early nineteenth-century America, Alexis de Tocqueville (1835) famously
observed, "[Sjcarcely any political question arises...that is not resolved, sooner
or later, into a judicial question." That may have been a considerable exaggeration
at the time, but today, the dynamic Tocqueville highlighted marks many constitu-
tional democracies in which independent courts are vested with powers of judicial
review. In such countries, political actors, organizations, and ordinary individuals
who become enmeshed in political conflicts have strong incentives to frame their
desires as constitutional or statutory claims and ask courts to vindicate them.
As a result, in the early twenty-first century, courts have become versatile actors
in the governance of many constihitional democracies, and judges and justices
play multiple roles in politics and policymaking. As many observers have noted/
politically consequential courts have emerged in new democracies from Korea to
South Africa to Brazil and beyond; courts in more established democracies such as
Canada and New Zealand have been given or have assumed more power to protect
individual rights and invalidate government policies; and both the European Court
of Justice (ECJ) and the European Court of Human Rights (ECHR) have taken on
dramatic roles in European governance.
However, the political power of courts has ebbed as well as flowed. In many
Latin American countries, judges are not blazing the way to robust constitutional
democracy in the way many hoped they might. The Hungarian Constitutional
Court, once hailed as one of the most significant new constitutional courts (Zifcak
1996), had its wings clipped less than a decade after its creation (Scheppele 1999).2
* Respectively, Assistant Professor of Political Science, University of California, Irvine; Assistant
Dean, Yale Law School; Professor Emeritus of Political Science and Law, University of California,
Berkeley.
1 See, for example, Tate and Vallinder 1997, Stone Sweet 2000, Hirschl 2006.
2 After another brief period of judicial independence from 2002 to 20.
In legal theory and in ancient Hindu, Greek and Roman Law natural law has a primordial place. Indeed Natural Law theory has a history, reaching back centuries and the vigour with which it flourishes notwithstanding periodic eclipse, especially in the nineteenth century, is a tribute to its importance. There is no theory; many versions have evolved throughout this enormous span of time. No other firmament of legal and political theory is so bejewelled with stars as that of natural law, which scintillates with contributions from all ages.
1. Case Summary In a narrative format, brief the Dred Scott case.docxSONU61709
1. Case Summary: In a narrative format, brief the Dred Scott case: detail the facts, issues and court holdings.
2. Case Analysis: What effect did the passage of 14th Amendment have on the precedential value of the decision in the Dred Scott case?
3. Case Analysis: Compare and contrast the three rights conferred on national citizens by the 14th Amendment.
4. Executive Decisions: If you were a Supreme Court Justice during the 1800's, would you interpret that Congress intended to incorporate the Bill of Rights into privileges of national citizenship? Give the rationale for your decision.
C H A P T E R 1
The Meaning of
Criminal Procedure
The Constitution of the United States was ordained, it is true, by descendants of Englishmen,
who inherited the traditions of English law and history; but it was made for an
undefined and expanding future, and for a people gathered and to be
gathered from many nations and of many tongues.
—JUSTICE STANLEY MATTHEWS, Hurtado v. California, 110 U.S. 516, 530–31 (1884)
CHAPTER OUTLINE
ORDER AND LIBERTY
Criminal Procedure and the Constitution
Order, Liberty, and the Two Models of Criminal Justice
The Dangers of Injustice
Criminal Justice and Alternate Justice Systems
LEGAL FOUNDATIONS
Law
The Court System
Federalism
The Special Role of the Supreme Court
THE CONTEXT OF CRIMINAL PROCEDURE
INCORPORATING THE BILL OF RIGHTS
Before the Civil War
The Growth of Federal Judicial Power
Dred Scott and the Fourteenth Amendment
The Anti-incorporation Cases, 1884–1908
Adopting the Due Process Approach
Incorporating First Amendment Civil Liberties
Resistance to Incorporation and Growing Support,
1937–1960
The Due Process Revolution, 1961–1969
The Counterrevolution
LAW IN SOCIETY: TERRORISM, JUSTICE,
AND LIBERTY
Justice and Liberty in Times of National Crisis
The Global War on Terror and the Threat to Liberty
Detainees: The Court’s Finest Hour
Blowback
SUMMARY
APPENDIX TO CHAPTER 1: HOW TO READ
AND BRIEF CASES
Notes on Legal Precedent
The Components of an Opinion
Briefing a Case
JUSTICES OF THE SUPREME COURT:
THE PRECURSOR JUSTICES
John M. Harlan I
Oliver Wendell Holmes Jr.
Louis Dembitz Brandeis
Benjamin Nathan Cardozo
1
M01_ZALM7613_06_SE_CH01.QXD 1/11/10 5:01 PM Page 1
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A
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T
,
M
E
G
A
N
1
3
2
4
T
S
2 Chapter 1
KEY TERMS
adequate and independent
state grounds
affirm
brief
Burger Court
case law
certiorari, writ of
checks and balances
common law
constitutionalism
court of general jurisdiction
court of limited jurisdiction
Crime Control Model
dictum
due process approach
Due Process Model
ex post facto law
federalism
fundamental rights test
habeas corpus, writ of
hierarchy of constitutional
rights
holding
human rights
incorporation doctrine
incorporation plus
judicial craftsmanship
judicial restraint
judicial review
jurisdiction
law
legal reasoning
liberty
opinion
order
overrule
police state
precedent
private law
procedural law
public law
Rehnquist Court
remand
remedial law
rever ...
CHAPTER 1 Legal Heritage and the Digital AgeStatue of Liberty,.docxtiffanyd4
CHAPTER 1 Legal Heritage and the Digital Age
Statue of Liberty, New York Harbor
The Statue of Liberty stands majestically in New York Harbor. During the American Revolution, France gave the colonial patriots substantial support in the form of money for equipment and supplies, officers and soldiers who fought in the war, and ships and sailors who fought on the seas. Without the assistance of France, it is unlikely that the American colonists would have won their independence from Britain. In 1886, the people of France gave the Statue of Liberty to the people of the United States in recognition of friendship that was established during the American Revolution. Since then, the Statue of Liberty has become a symbol of liberty and democracy throughout the world.
Learning Objectives
After studying this chapter, you should be able to:
1. Define law.
2. Describe the functions of law.
3. Explain the development of the U.S. legal system.
4. List and describe the sources of law in the United States.
5. Discuss the importance of the U.S. Supreme Court’s decision in Brown v. Board of Education.
Chapter Outline
1. Introduction to Legal Heritage and the Digital Age
2. What Is Law?
1. Landmark U.S. Supreme Court Case • Brown v. Board of Education
3. Schools of Jurisprudential Thought
1. CASE 1.1 • U.S. Supreme Court Case • POM Wonderful LLC v. Coca-Cola Company
2. Global Law • Command School of Jurisprudence of Cuba
4. History of American Law
1. Landmark Law • Adoption of English Common Law in the United States
2. Global Law • Civil Law System of France and Germany
5. Sources of Law in the United States
1. Contemporary Environment • How a Bill Becomes Law
2. Digital Law • Law of the Digital Age
6. Critical Legal Thinking
1. CASE 1.2 • U.S. Supreme Court Case • Shelby County, Texas v. Holder
“ Where there is no law, there is no freedom.”
—John Locke Second Treatise of Government, Sec. 57
Introduction to Legal Heritage and the Digital Age
In the words of Judge Learned Hand, “Without law we cannot live; only with it can we insure the future which by right is ours. The best of men’s hopes are enmeshed in its success.”1 Every society makes and enforces laws that govern the conduct of the individuals, businesses, and other organizations that function within it.
Although the law of the United States is based primarily on English common law, other legal systems, such as Spanish and French civil law, also influence it. The sources of law in this country are the U.S. Constitution, state constitutions, federal and state statutes, ordinances, administrative agency rules and regulations, executive orders, and judicial decisions by federal and state courts.
Human beings do not ever make laws; it is the accidents and catastrophes of all kinds happening in every conceivable way that make law for us.
Plato
Laws IV, 709
Businesses that are organized in the United States are subject to its laws. They are also subject to the laws of other countries in which they operate. Busin.
Common Law Constitutional Interpretation Author(s) David LynellBull52
Common Law Constitutional Interpretation
Author(s): David A. Strauss
Source: The University of Chicago Law Review , Summer, 1996, Vol. 63, No. 3 (Summer,
1996), pp. 877-935
Published by: The University of Chicago Law Review
Stable URL: https://www.jstor.org/stable/1600246
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The University of Chicago
Law Review
Volume 63 Summer 1996 Number 3
? 1996 by The University of Chicago
Common Law Constitutional Interpretation
David A. Strausst
The Constitution of the United States is a document drafted
in 1787, together with the amendments that have been adopted
from time to time since then. But in practice the Constitution of
the United States is much more than that, and often much
different from that. There are settled principles of constitutional
law that are difficult to square with the language of the docu-
ment, and many other settled principles that are plainly inconsis-
tent with the original understandings. More important, when
people interpret the Constitution, they rely not just on the text
but also on the elaborate body of law that has developed, mostly
through judicial decisions, over the years. In fact, in the day-to-
day practice of constitutional interpretation, in the courts and in
general public discourse, the specific words of the text play at
most a small role, compared to evolving understandings of what
the Constitution requires.
877
t Harry N. Wyatt Professor of Law, The University of Chicago. I thank Bruce
Ackerman, Douglas Baird, Richard Fallon, Charles Fried, Elizabeth Garrett, Elena
Kagan, Dan Kahan, Larry Lessig, Michael McConnell, Martha Nussbaum, Jeffrey Rosen,
Louis Michael Seidman, Geoffrey Stone, Peter Strauss, Cass Sunstein, and the partici-
pants in workshops at Columbia Law School ...
1. THE “THREE GLOBALIZATIONS”
IN LATIN AMERICA
JORGE L. ESQUIROL
I. INTRODUCTION
Duncan Kennedy’s “The Three Globalizations of Law and Legal Thought:
1850-2000”1 is a welcome contribution to the post-colonial study of local legal
epistemologies. More specifically, it is a useful matrix for focusing on legal
consciousness in Latin America. The region’s law is still often dismissed in
mainstream accounts as historically anachronistic, mindlessly mimetic of law in the
West, conceptually limited, and/or culturally discordant with local societies.
Duncan’s piece helps to chip away at this simple picture. He demonstrates the
extensive migrations of legal thought throughout the world and their multiple local
politics and uses. Additionally, he insightfully describes distinct legal elements
globalized at different points: reasoning techniques, institutions, vocabularies, and
the like. As such, the work provides a suggestive framework for exploring local legal
developments in post-colonial sites, while simultaneously relating them to legal
thought in Europe and the U.S.
This essay presents, very succinctly, several points of intersection between
the Three Globalizations article and some post-colonial perspectives on law in Latin
America. It elaborates somewhat on Duncan’s points, and it registers several points
of agreement and disagreement with his assumptions. In brief, this quick exercise
reveals that more has been globalized than we have tended to think; what has been
globalized is different at different times; and the several globalizations have
reinforced quite varied local political projects.
1Kennedy, Du. “Three Globalizations of Law and Legal Thought: 1850-2000.” The New Law and
Economic Development: A Critical Appraisal. Eds. Trubek, David M. and Alvaro Santos. Cambridge:
Cambridge University Press, 2006, 19-73.
1
2. 2 COMPARATIVE LAW REVIEW - Vol. 3
II. LATIN AMERICAN LEGAL CONSCIOUSNESS
Mainstream accounts of law in Latin America emphasize a sociological, or
external, account of the operation of state law in the region.2 The relevant academic
fields of law-and-development and area studies mostly repeat quite similar views of
formal law.3 The latter is predominantly depicted as either (mal)adapted transplants
of European and U.S. legal texts and authorities, or as mere pretextual cover for elite
politics and backroom machinations.4 Legal consciousness is considered, if at all, as
near exclusively formalist, corresponding to Duncan’s first globalization; devoid of
any pragmatic flexibility, corresponding to the absence of a second globalization in
the region; and lacking clear consequentialist orientation, reflecting a still unachieved
third globalization.5 This, clearly, is too neat a picture of the relationship between the
Three Globalizations and dominant perceptions in the global North of law in Latin
America. Still, mainstream accounts can be evocatively understood in terms of
Duncan’s scheme. From that perspective, Latin America remains mostly stuck in the
first globalization, merely updated somewhat by more recent versions of legal
formalism.
This dominant image of law in the region can also be seen as emanating from
instrumental objectives.6 The diagnosis of an anachronistic legal formalism, scattered
foreign transplants, and wide disjuncture between law and society can be quite
forceful arguments. They can be mobilized as yet another way to change existing
legal institutions and policies. The charge of law’s mal-adaptedness, as a whole, can
provide the basis for introducing completely different laws, institutions, and
2 Esquirol, J. L. “Continuing Fictions of Latin American Law.” Fla. L. Rev. 55 (2003): 41.
3 See generally, Couso, J. Alexandra Huneuus, and Rachel Sieder, eds. Cultures of Legality. Judicialization
and Political Activism in Latin America. Cambridge: Cambridge University Press, 2010; Esquirol, J.
“Writing the Law of Latin America.” The Geo. Wash. Int’l L. Rev. 40 (2009): 693.
4 See generally, Helmke, G. and Julio Rios-Figueroa, eds. Courts in Latin America. Cambridge:
Cambridge University Press, 2011; Dezelay, Y. and Bryant Garth, eds. The Internationalization of Palace
Wars: Lawyers, Economists, and the Contest to Transform Latin American States. Chicago: University of
Chicago Press, 2002; Merryman, J. H. and Rogelio Perez-Perdomo, eds. The Civil Law Tradition: An
Introduction to the Legal Systems of Europe and Latin America. 3rd. ed. Stanford, CA: Stanford University
Press, 2007.
5 Esquirol, J. L. “Continuing Fictions of Latin American Law” cit. (In my own work, I have examined
this phenomenon in Latin America and characterized it in terms of the “fiction of Latin American
Europeanness.”).
6 See generally, Ruskola, T. “Legal Orientalism.” Mich. L. Rev. 101 (2002): 179.
3. Jorge L. Esquirol
The “Three Globalizations” in Latin America 3
procedures. Notably, 1990’s neo-liberalism enlisted these common images quite
directly to further its program of far-reaching law reform.7 In that case, the images
of legal failure in the region propelled the rejection of existing social laws, non-
adversarial criminal procedure, national economic regulation, and the like.8 No less,
these common perceptions of Latin American law may also support those on the left
who would argue for different political projects, such as was the case in the first
round of law and development in the 1960’s and 70’s. Thus, beyond simply a neutral
diagnosis of law in the region, prevailing international politics no doubt plays a
significant role in the dominant characterizations of Latin American law.
As such, demystifying the various movements of legal thought – as the Three
Globalizations article does -- is a powerful intervention in global North perspectives
and politics related to national law elsewhere. Notably, this intervention coincides
with the post-colonial preoccupation for an internal point of view, in this case of
local “legal consciousness.”9 This latter perspective highlights the production of local
meaning and significantly convincing effects of legal discourse within a given
epistemological community.10 This approach goes beyond positing how local culture
or material conditions modifies or distorts given international models or Western
legal transplants. And it eschews simply political or external descriptions of law as a
mere record of political settlements concluded elsewhere. Rather, it highlights how
legal discourse also produces meaning, if sometimes through idiosyncratic uses of
7 See Esquirol, J. L. “The Failed Law of Latin America” Am. J. Comp. L. 56 (2008): 75.
8 Trubek, D. and Alvaro Santos, eds. The New Law and Economic Development: A Critical Appraisal.
Cambridge: Cambridge University Press, 2006.
9 Garavito, C. R., ed. El Derecho en America Latina. Un mapa para el pensamiento jurídico del siglo XXI.
Buenos Aires: Siglo Veintiuno Editores, 2011; López Medina, D. Teoría impura del derecho. La
transformación de la cultura jurídica latinoamericana. Colombia: Legis Editores, 2004; Langer, M.
“Revolution in Latin American Criminal Procedure: Diffusion of Legal Ideas from the Periphery.”
Am. J. Com. L. 55 (2007): 617; Bonilla, D. “Legal Clinics in the Global North and South: Between
Equality and Subordination. An Essay.” 5 June 2012. http://www.law.yale.edu/documents/
pdf/sela/SELA12_Bonilla_CV_Eng_20120321.pdf.; Santos, A. “Three Transnational Discourses of
Labor Law in Domestic Reforms.” U. Pa. J. Int’l L. 32 (2010): 123; Jaramillo, I. “The Social Approach
to Family Law: Conclusions from the Canonical Family Law Treatises of Latin America.” Am. J. Comp.
L. 58 (2010): 8; Gonzalez-Jacome, J. “Emergency Powers and the Feeling of Backwardness in Latin
American State Formation.” Am. U. Int’l L. Rev. 26 (2011): 1073; Esquirol, J. L. “The Turn to Legal
Interpretation in Latin America.” Am. U. Int’l L. Rev. 26 (2011): 1031.
10 Ibid.
4. 4 COMPARATIVE LAW REVIEW - Vol. 3
transnational materials and ideas, and provides for the working out of divergent local
interests, if in a different way than legislative politics.
III. DIFFERENT SORTS OF PHENOMENA, GLOBALIZED
The Three Globalizations presents a broad framework in which to explore many
of these ideas. For example, it illustrates that the thing globalized can take different
forms. The globalized can consist of value-laden concepts -- like will and rights --
that are worked out by legal scholars (CLT), institutional orientations developed by
legislators and activists (the social), or an attractive legal discourse taken up by
national elites (reception). This provides a rich rebuttal to the standard 1960’s-70’s
law and development account of Latin America. The problem diagnosed at that time,
as part of the reason for economic and political under-development, was
unfamiliarity with anti-formalism at least in the form of pragmatic legal reasoning
adapted to economic and social objectives. The description of a second globalization,
in Duncan’s article, highlights by contrast the history of anti-formalist social law
thought globally. It helps to show its impact and imprint, even within presumably
still first globalization jurisdictions.
Duncan’s framework is helpful, on this question in particular, in relating
global legal ideas with their local elaborations. It thus helps explain why socio-legal
theorists, especially ones from the center writing on Latin America, may have been
highly influential in the region.11 Moreover, it provides the context for how this social
globalization could have been translated locally quite differently and idiosyncratically.
Indeed, the description of the second globalization, in particular, demonstrates how
“anti-formalism” and “social law” were not only present -- but also highly developed
-- in other parts of the world, especially in civilian legal systems, Latin America
included. The piece shows that “anti-formalism” is not a characteristic part of U.S.
exceptionalism in legal thought. Notably, Duncan does differentiate “legal realism”
from the social or anti-formalism – retaining the exceptionality of U.S. legal realism.
Regardless, this broad recognition of “the social” globally in the early twentieth
Esquirol, J. L. “The Fictions of Latin American Law” Utah L. Rev. 1997 (1997): 425; Lopez Medina,
11
D. Teoría impura del derecho. La transformación de la cultura jurídica latinoamericana. cit.
5. Jorge L. Esquirol
The “Three Globalizations” in Latin America 5
century allows for the retrieval of ideas that then pervaded and still inform
contemporary legal culture in places like Latin America.
Duncan’s piece endorses a particular theory about the operationalization– or
popularization -- of a langue, the main metaphor used to describe the variety of things
globalized. He points to the multiplicity of possible combinations of paroles within
any one langue. This image is quite helpful in, at least, the following way. Namely, it
offers a theory of the variability of similar ideas applied in discrete -- and potentially
divergent -- political interventions. The langue can be the same, but the arguments
they produce can be either left or right, conservative or progressive, etc. The notion
helps to deny any necessary connection between anti-formalism and progressivism or
legal formalism and conservatism. As such, it makes it easier to speak of the
participation of Latin America at a conceptual level within these movements of legal
thought.
Some of the same ideas may have been processed but taken quite different
political forms. 12 This also helps explain why the ideas may seem missing from the
local stock of legal intellectual culture. In a different political form, they may appear
less recognizable. Thus, a conservative anti-formalism may be more easily missed by
scholars and commentators. Nonetheless, social law in the region may have been no
less “anti-formalist” even though it did not support a more progressive political
project in the law than the existing legal traditionalism. This insight allows for a
clearer perception of the impact and influence of anti-formalist thought. If
necessarily tied to progressive politics, it may remain unseen. Moreover, if only
perceived as occurring in the form of more recent legal sociology or informality,
much other anti-formalism would also be missed.
As such, globalizations may be metabolized quite differently in different
places. While social law thinking – common the world over -- had the potential of
offering a more distinct alternative to traditional legal culture, in Latin America, its
promoters ended up reinforcing the same liberal legalist project of traditionalists. In
12See also Mushtaq, K. “State Failure in Developing Countries and Institutional Reform Strategies.”
Toward Pro-Poor Policies: Aid, Institutions, and Globalization. Annual World Bank Conference on Development
Economics, Europe (2003). Eds. Tungodden, B. and Stern, N. and Kolstad, I. Oxford: Oxford University
Press and World Bank, 2004, 165.
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fact, socio-legal particularity, rather than a necessarily expansive mode of introducing
local particularity within legal reasoning, mostly affirmed the legal commonality
between Europe and Latin America. For mid-twentieth century jurists in the region,
legal positivism and conceptualism were – at the end of the day –apparently a more
palatable political project. It was surely less frightening than the risk of fascism,
communism, or even worse indigenism, to which untamed social methodologies
might lead.13
IV. THE LOCAL POLITICS OF LEGAL GLOBALIZATIONS IN THE PERIPHERY
Three Globalizations also raises the question of whether or not globalization
through colonial imposition significantly differs from globalization through
“influence and prestige” when speaking about “legal consciousness.” In Latin
America in the relevant period here, and given these two options, the route of
“influence and prestige” is most relevant. However, this latter image may not be the
only – or even the best way – of describing the local politics that draw on, and
therefore, globalize legal phenomena.
A. ORIGINS AND INTERESTS
In terms of the influence and prestige mode of dissemination, Duncan
mostly describes the things globalized as the products of innovation, with an
appreciable and appreciated origin. However, origins narratives in the political
economy of Western liberal law are notorious for subordinating those in the
periphery.14 The resources of the center, and extensive means of dissemination, make
it so that individuals in the periphery are rarely credited with a seminal idea.
Moreover, those locales are unlikely seen as influential leaders, innovators, and the
like. As a result, the stories based on the existing literature are skewed in this way,
and they have a role in re-producing the center/periphery divide and the geo-politics
that goes along with it.
13Esquirol, J. L. “The Fictions of Latin American Law.” cit.
14Said, E. W. Orientalism. New York: Vintage 1978; Spivak, G. C. “Can the Subaltern Speak?” Colonial
Discourse and Post-Colonial Theory: A Reader. Eds. P. Williams and L. Chrisman. New York: Columbia
University Press, 1994, 66; Bhabha, H. The Location of Culture. London: Routledge 1994.
7. Jorge L. Esquirol
The “Three Globalizations” in Latin America 7
The things globalized could alternatively be seen as fitting a narrative of
“interests convergence.”15 The picture then would highlight more deeply the local
politics in different places. This may show how, indeed, the periphery assisted in
creating origins narratives that suited their purposes as well. In this way, in particular
places, the balance of local political forces, each from their own particular
perspective, may find that it would benefit – in whatever way – from the adoption of
a particular element. In a locale where the balance of forces is completely one sided,
it would seem a clean, up or down, question. In more deeply divided places, each side
would have to imagine when all was said and done that they – and not their
opponents-- would comparatively prevail. A story of globalization would thus consist
of moments of multiple local calculations to draw, or not draw, on certain legal
phenomena. The effect of these multiple adoptions is what would then produce their
overall globalization.
Of course, this account is not mutually exclusive with Duncan’s emphasis on
influence and prestige. It simply highlights the local political dimension more
specifically. However, faced with equally likely and multiple dynamics, a political one
in which there is a convergence in the balance of forces in favor of the adoption of
“things globalized” --- rather than a tale about the intellectual origins of will theory or
the social would seem to offer a less top-down representation.
B. THE TROUBLE WITH “LANGUE”
Across all three globalizations, the thing globalized is primarily characterized
as a langue. But, it seems that this image can have -- and does have -- different
meanings within different globalizations – and possibly even within the same
globalization. At certain points, langues and paroles appear to have different types of
relationships. They can be seen, at different times, to represent both grammars and
rhetorics. In the first two globalizations, the period langue appears capable of
producing a coherent grammar: even if excluding some areas of law, such as family
law in the first globalization. By the third globalization, however, the langue cannot
15Bell, D. “Brown v. Board of Education and the Interest Convergence Dilemma.” Harv. L. Rev. 93
(1980): 518.
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possibly exhibit the same type of generative coherence since separate sub-langues co-
exist and collide with each other.
Additionally, the slippage between langues and paroles appears again
precisely at the point they are globalized. In the periphery, the langue of the first two
globalizations can likely be hybrid, taking into account “‘indigenous’ elements”
having differing levels of “dialectical counter-influence.”16 To deal with this latter
phenomenon, Duncan uses the metaphor of “contexts of production” and “contexts
of reception,” popularized by Diego Lopez Medina.17 In contexts of reception in the
periphery, thus, the langue metaphor covers at least two different situations. First,
the langue may not be wholly assimilated, or may compete with local elements with
which it is re-combined. As such, the langue would not retain its coherence – at least
not in the same way as it would in a purported “context of production.” Second, the
langue can be seen, at some points, as signifying pure rhetoric. In this sense, it merely
represents a thin rhetorical patina masking the real underlying relations – which may
have not changed at all as a result of the new langue but are now merely expressed in
that langue. An example of the latter from Duncan’s piece is the phenomenon of
describing as liberal employment relations, and the product of “will theory,” what are
actually semi-feudal relations in the periphery.18
However, the potency of the langue metaphor lies in the fact that it provides
a significantly coherent generative grammar producing a varied – yet finite -- range of
paroles. The outer limits of the langue can thus be seen to provide a sort of
“phenomenological” determinacy. If it the langue is broadly hybrid or merely
rhetorical, in the periphery, it then represents an infinitely diverse range of possible
relationships between langue and paroles, possibly with no recognizable limits at all.
Thus, from my perspective, the langue relationship can be recognized as intrinsically
variable – and not simply varied due to transposition to contexts of reception or to
the third globalization. By contrast, in its guise as a generative grammar, a langue
would appear to represent that there is an actually correct usage that is then
16 Kennedy, Du. "Three Globalizations of Law and Legal Thought: 1850-2000." cit., 23.
17 López Medina, D. Teoría impura del derecho. La transformación de la cultura jurídica latinoamericana. cit.
18 Kennedy, Du. "Three Globalizations of Law and Legal Thought: 1850-2000." cit., 35-36.
9. Jorge L. Esquirol
The “Three Globalizations” in Latin America 9
manipulated, misunderstood, misapplied, etc. in the periphery. In short, it would be
better if all are genuinely conceptualized as contexts of reception in varied ways.
V. THE OUTWARD AESTHETICS OF GLOBALIZATION IN LATIN AMERICA
The Three Globalizations describes a dynamic of influence and, alternatively,
imperialism across national legal consciousness(es). In effect, the reason that these
ideas moved across the world is because they were attractive to, or in many cases
imposed on, local legal elites. Another relevant distinction is whether or not the
globalizations’ “foreign origins” are recognized. Indeed, by adopting an “intellectual
origins” approach to legal consciousness, as noted above, the sites of origin are
always multiple enough that any globalization can be represented as at least partially
foreign.
In addressing this point, Duncan explains the Savigny historicist method
which allowed for the adoption of German will theory elsewhere, while being able to
deny that it was foreign at all. As the reader will remember, this was the case since
Roman law was its purported source, which was in turn common to all civilian
(civilized) legal systems. This seems both correct and slightly incomplete.
Additionally, the foreign sources can also become a source of legitimacy and prestige.
Indeed, extending the story in this way helps make more intelligible and even
defensible how legal actors in Latin America have constructed legal systems playing
up the relationship to Europe or “developed law.”
The outward identification with European law – rather than something
shameful and to be denied – can be a powerful source of legitimacy. It may seem, at
first blush, that legal consciousness inflected in this way reflects social alienation or
internal colonialism. It may also make it seem like local law is disconnected from
local societies. However, the historical relevance of globalization – not just a
contemporary phenomenon of mass communications and transportation -- can also
make more sense of how a “globalization” of law (transnationalism) can itself be a
useful and reasonable mode out of which to construct the legitimacy of a national
legal system.
10. 10 COMPARATIVE LAW REVIEW - Vol. 3
The point Duncan makes that Latin Americans were the only ones, in the
first globalization, to own a “criollo” legal consciousness may be somewhat over-
stated.19 The “criollo” legal consciousness was limited to public international law, in
the work of Alejandro Alvarez and fellow travelers.20 Yet, even there, it was highly
contested and contained.21 Moreover, Alvarez was a main expositor of a social
approach to law, emphasizing the actual practice of states and concepts of
interdependence. Finally, the significance of “criollo” legal identity could be, as
Duncan himself explains, quite minimal. The lesson from Savigny’s historicism in
Germany is that it is possible to arrive at the same notions of “rights,” “will,” and
“fault,” while outwardly purporting to be excavating national particularity.
In any case, some of the differences between legal systems in Europe and
Latin America– on this score -- may simply be variations over how much of the
foreign or global connection is outwardly recognized. In Latin America, the foreign
connection, itself, is mobilized as a source of legitimacy, in order to emphasize that
the law is beyond mere local politics. In other words, its nature as transnational law
can itself be emphasized, rather than hidden, to deny local juristic arbitrariness or
political bias. Thus, the widespread existence of globalization may be observed while
its open, and even instrumental recognition, in particular locales may vary.
VI. LEGAL CONSCIOUSNESS AND GLOBALIZATION
The picture that Duncan paints in the third globalization is, from my
perspective, the most compelling. This is the case because it describes legal
consciousness as a multiplicity of co-existing technologies and operations: formalism,
the social, policy, etc. deployed simultaneously.22 And yet, the other two
globalizations – especially when read together with the third -- may give the
impression of a progression of knowledge taking place rather than simply some
19 Kennedy, Du. “Three Globalizations of Law and Legal Thought: 1850-2000.” cit., 30.
20 Obregon, L. “The Colluding Worlds of the Lawyer, the Scholar and the Policymaker: A View of
International Law from Latin America.” Ws. Int’l L. J. 23 (2005): 145.
21 Esquirol, J. L. “Latin America.” Oxford Handbook of History of International Law Eds. Fassbender, B. et
al. Oxford: Oxford University Press (forthcoming 2012); Esquirol, J. L. “Alejandro Alvarez’s Latin
American Law: A Question of Identity.” Leiden J. Int’l L. 19 (2006): 931.
22 Kennedy, Du. "Three Globalizations of Law and Legal Thought: 1850-2000." cit., 63 ff.
11. Jorge L. Esquirol
The “Three Globalizations” in Latin America 11
technologies are dominant in a given time and place.23 As such, the Three
Globalizations taken in series could be read to suggest either a linear or dialectical
form, albeit with internally un-synthesized elements.
However, both of these images of legal consciousness, linearity and dialectic,
tend to reproduce a global hierarchy related to timing and, again, influence. The
narrative of progression or modernization is the paradigmatic framework that
produces the periphery. The periphery in this sense is the backward or retrograde in
relation to change and movement. As such, a more useful image may consist of the
depiction of a variety of analytical technologies and devices, always already available
even if in incipient form. Some of these may become dominant, globally, at certain
times and certain places. Of course, this process may be driven through imposition
as well by dominant countries or international organizations, but they are because of
it not less idiosyncratic in their collection of constitutive legal elements.
Finally, some of these technologies may or may not be outwardly connected
with foreign sources or genealogical commonalities, as discussed above. Their
assignation – as either foreign-inspired or locally-originating – is no less an
instrumental and strategic choice of a particular place and time. This more eclectic
emphasis in the story of globalizations – it seems to me – would be less likely to
suggest that the periphery is merely a receiver of globalizations, or just a belated or
mimetic reflection of legal consciousness in the global North.
VII. CONCLUSION
The Three Globalizations is extremely useful in demonstrating the widespread
movement of legal ideas across the world historically. It dispels the common myth
that certain legal ideas have simply not arrived or have not been significantly
understood in broad swaths of the world. Rather it shows how those ideas may have
been assimilated differently and incorporated with different political valences. At the
same time, the series of globalizations could be misunderstood as a progression of
world legal thinking, with areas of leading and others of backward legal thought.
23See generally Chatterjee, P. Lineages of Political Society: Studies in Postcolonial Democracy. New York:
Columbia University Press, 2011, 1.
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Instead, an important part of the story relates to the local internal forces that at
specific times marshal specific legal elements and, in some cases, the very aesthetics
of global or transnational legality. In any case, the study of legal consciousness in
historical peripheries has been quite limited in comparative scholarship. This article
provides a roadmap for continuing work in this area.