Sovereignty, Rule of Law and Global Civil Society
Global society is increasingly expressing itself through globally identifiable institutions of civil society. In this article, Winston Nagan explores the inter-relationship of sovereignty, the Rule of Law, and individual identity in the scheme of evolving global governance and considers the Rule of Law and its potential for global constitutional development.
Global Rule of Law: Paradigm Shift
The Rule of Law is a disarming phrase. It suggests simplicity but is related to the complexity of sovereignty. I suggest that the Rule of Law idea was largely an idea generated by legal culture to limit the arbitrary capacity of sovereign decision-making. Shapiro, a student of totalitarian political culture suggested that the fundamental difference between totalitarianism and democracy was a working Rule of Law: a restraint on arbitrary sovereign action.
The Rule of Law is reflected in the evolution of modern constitutional democracy. It is the Constitution as law, which limits sovereign absolutism. After WWII, ‘we the people’ of the planet promulgated a global constitution. This constitution and the processes that preceded it is the United Nations Charter. What is distinctive about the Charter is it did not seek to establish itself as a neutral umpire between the competing stakeholders. It is not value free. It is rooted in the fundamental values that humanity has identified for its survival and future prosperity. This implicates a Rule of Law of global dimensions, rooted in the fundamental values of human coexistence and aspiration, as well in the promise of a constitutional culture, which seeks to give specific prescription and application in concrete instances of decision responsibility. Scholars suggest there is a need for a new paradigm for the global Rule of Law. In these inquiries, a new paradigm implicates global constitutional law and a global interest in good governance at every level of society; it must present a developmental vision of a realisable and more promising future.
What is meant by the Global Rule of Law?
The UN General Assembly has on occasion, attempted to clarify the meaning of the Rule of Law. However, these efforts resemble a laundry list of issues that invite immense complexity. To illustrate, the UN demands a most inclusive list of participators including inter-governmental entities, sovereigns, and individuals. They stress the importance of predictability, legitimacy, accountability and the importance of just, fair and equitable laws. They also suggest an economic dimension, which ties in with sustainability, economic growth, development, and poverty eradication. I suggest that a shorter and clearer statement may be given. The terms Rule of Law symbolise an inspiration about basic values and seek to guide authoritative and controlling decision-making (for which we reserve the term law) to secure the objective of all law: to defend and promote the common interest of all the people. The common interest today is seen in universal wellbeing and a celebration of human dignity. The symbol Rule of Law implies an aspirational future of realisable global justice and dignity. This implicates the vision of a desired developmental future for humankind. That in short is the challenge symbolised by the global Rule of Law idea. The central institutional mechanism, which gives the Rule of Law idea operational relevance, is the constitutional form that it inspires.