Monthly Archives: July 2011

The contours of public law are changing rapidly, and judges, practitioners, and academic writers are anxiously seeking a guide to the new frontiers. Reference has been made by some American observers to the “profound changes brought about by deregulation, commercialization, … Continue reading →

The pursuit of global democratic governance cannot be confined to global institutions; national state institutions and nation-based citizens need to be part of this project. In this lecture, I want to map a variety of mechanisms and dynamics that can … Continue reading →

In his book Le malheur des autres, Bernard Kouchner, the founder of Médecins Sans Frontières and the former French Health Minister, wrote that “[h]umanitarian activities have become customary.” Kouchner’s statement points to the new forms of globally organized power and … Continue reading →

Africa’s problems are myriad and complex. However, most scholars of Africa agree that one particular issue that continues to bedevil African countries is how to establish democratic nation-states with institutions that promote economic development, consolidate political harmony and stability, and … Continue reading →

This paper presents a study of the Mekong River Commission (MRC) and the International Commission for Protection of the Rhine (ICPR). The primary focus of this study is to analyze and explain how the issues, interests, and participation of local … Continue reading →

Over the past decade, Canada, following the lead of other Western democracies, has engaged in numerous, and at times fundamental, experiments in reducing or reconfiguring the role played by government. These experiments have been conducted, with varying levels of intensity … Continue reading →

This essay attempts to develop a theory of imperial law that is able to explain post-Cold War changes in the general process of Americanization in legal thinking. My claim is that “imperial law” is now a dominant layer of world-wide legal systems. Imperial law is produced, in the interest of international capital, by a variety of both public and private institutions, all sharing a gap in legitimacy, sometimes called the “democratic deficit.” Imperial law is shaped by a spectacular process of exaggeration, aimed at building consent for the purpose of hegemonic domination. Imperial law subordinates local legal arrangements world-wide, reproducing on the global scale the same phenomenon of legal dualism that thus far has characterized the law of developing countries. Predatory economic globalization is the vehicle, the all-mighty ally, and the beneficiary of imperial law. Ironically, despite its absolute lack of democratic legitimacy, imperial law imposes as a natural necessity, by means of discursive practices branded “democracy and the rule of law,” a reactive legal philosophy that outlaws redistribution of wealth based on social solidarity. At the core of imperial law there is U.S. law, as transformed and adapted after the Reagan-Thatcher revolution, in the process of infiltrating the huge periphery left open after the end of the Cold War. A study of imperial law requires a careful discussion of the factors of penetration of U.S. legal consciousness world-wide, as well as a careful distinction between the context of production and the context of reception of the variety of institutional arrangements that make imperial law. Factors of resistance need to be fully appreciated as well. Continue reading →

On March 7, 2002, Professor Marks delivered the sixth annual Snyder Lecture at the Indiana University School of Law—Bloomington.

In their recent book Empire Michael Hardt and Antonio Negri make the claim that: “Empire is materializing before our very eyes. Over the past several decades, as colonial regimes were overthrown and then precipitously after the Soviet barriers to the capitalist world market finally collapsed, we have witnessed an irresistible and irreversible globalization of economic and cultural exchanges. Along with the global market and global circuits of production has emerged a global order, a new logic and structure of rule—in short, a new form of sovereignty. Empire is the political subject that effectively regulates these global exchanges, the sovereign power that governs the world.”

In this lecture I want to consider what Hardt and Negri mean by this claim, what they have in mind when they assert the emergence of a new, global order with a “new logic and structure of rule,” and what implications their analysis might have for students of international law. To bring these issues into focus, I propose to set them against the background of earlier meditations on the relationship between imperialism and international law and on the significance of the colonial encounter in the construction of international legal ideas, concepts and categories.

But first I think it might be helpful to dwell a little on Hardt’s and Negri’s central concept, announced already in the fashionably monoverbal title of their book. For empire is, of course, a term that has many different referents and many different inflections, and if we are to grasp the analysis put forward by Hardt and Negri, we need to be in a position to see how their conception of empire carries forward or departs from other ways of understanding the term. Indeed, we need to be ready not only for comparisons with other ways of understanding empire, but also for comparisons with its similarly polyvalent cognates and affiliates: imperialism, colonialism, and their respective variants. Continue reading →

The theme of this Tenth Anniversary issue, “Globalization and Governance: The Prospects for Democracy,” is a fitting and timely topic. By way of introduction, this article will begin by discussing each of these concepts briefly. “Globalization” has become a buzzword … Continue reading →

The question of the legitimacy of exercising public authority, or more precisely, the legitimacy of governance or government, has been discussed since ancient times. There is a formidable host of literature on the topic, written by philosophers, political scientists, sociologists, … Continue reading →