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The Globalization of American Law

David A. Westbrook
Theory Culture Society 2006; 23; 526
DOI: 10.1177/026327640602300297

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27_mutns-in-citizenship_064831 10/5/06
526 Theory, Culture & Society 23(23)
The Globalization of American Law
David A. Westbrook
Keywords American, cultural imperialism,
globalization, hegemony, law, modernization,
state, United States
G
lobal, legal and American, name
important aspects of much contempor-
ary life. One way (there are of course
others) to organize these vague descriptions is to
begin from three commonplace observations.
These observations are suggestive (they mean
more than they say), problematic (they are not
simply true; their contradictions have merit), and
somewhat incommensurate (the logical relations
among the three are not completely clear). First,
globalization is a process in which law plays large
roles. The global is self-evidently legal in treaties,
international institutions, and more deeply, the
vast webs of property, contract, and finance
through which global business takes place. More
personally, acts on the global stage such as an asser-
tion of a human right, or joining a nongovern-
mental organization, or using a credit card, all
entail a great deal of law, even though such law
ordinarily is not at issue, submerged. The second
commonplace is that law is increasingly under-
stood to be articulated at various levels of politics,
above, below, and including the nation state. While
law is not the same everywhere (there are
numerous variations among jurisdictions) such
differences increasingly exist within the same
conceptual frame, a frame with global scope. And
a third commonplace is that global culture, and
particularly its law, feels somehow American.
American includes not only the law as it emerges
from the many authorities within the United
States, but also indicates a certain cultural stance.
Taken together, these three common observations
suggest the proposition that law is being used to
make a global society that is somehow American.
One of the difficulties in thinking through this
proposition is that law has no stable referent.
Sometimes, law is understood to refer to distinct
social phenomena such as treaties, constitutions
(often guaranteeing rights), institutions, and the
web of legal relations that inform civil life, law vis-
-vis society. All this is true enough, but law is also
ineluctably part of that which it constrains. Law
constructs much of the objects within the realms
of politics, morality, and so forth. Thus politics,
morality and society writ large (indeed global
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10:26 am Page 526
society) are always already legal in character, law
within society. In any society, most matters tend
to be so well settled as to be hardly discussed. Law,
in this sense of the word, tends to be unques-
tioned, invisible, hegemonic. To ask what is the
role of (American) law? is, already, to have
assumed a duality between law and its society that
obscures much of importance.
As a result of the simultaneous opposition and
interpenetration between law and society,
description of the relationship between law and a
particular social phenomenon is difficult. And
when the phenomenon is that huge set of
developments mystically discussed under the
rubric of a great transformation, then the
problem of delineating relationships between law
and the phenomenon becomes difficult indeed.
Consequently, thinking about law and globalization
cannot aspire to more than understanding (sophis-
tication). Demonstrable truth (certainty) is out of
reach. In response to this situation, social critics
may be expected to soften their approaches
somewhat, to turn from theory modeled on
science to something akin to aesthetic appreci-
ation, and an effort to think through the sources
and implications of felt experience the question
requires not only rigor but critique, not only
demonstration but sensibility.
Globalization could be understood from the
end of the Second World War, when a number of
treaties were signed that established a framework
for the integration of non-communist states in
Western Europe and elsewhere. The International
Monetary Fund (IMF), the International Bank for
Reconstruction and Development (World Bank),
and the General Agreement on Tariffs and Trade
(GATT, which has been incorporated into the
World Trade Organization, WTO) established an
international, now global, trade and financial order
designed to avoid the rivalries that led to both
World Wars. Similarly, a series of treaties has
created a Europe of interpenetrating politics, laws,
economies, militaries, personal ties, and cultural
identities a project that was intended to make
war among European states infeasible. In this story,
law is a primary mechanism through which the
great transformation was begun. And as the
strongest power at the end of the Second World
War, the United States played a major role in the
construction of the new regime.
Such an instrumental view of law, however, is
only half the story. While treaties provide a legal
27_mutns-in-citizenship_064831 10/5/06
Problematizing Global Knowledge Citizenship/The Political/Global Sovereignty 527
context for economic integration and so cultural
transformation, global society is woven from
countless interchanges among actors in civil
society. Such transactions require agreement on
fundamental social conventions, most obviously
property, contract, and currency, but also less obvi-
ously economic matters. As the planets dominant
national economy, the United States has been
unsurprisingly influential in the creation of global
standards, influence neatly symbolized by items
like the US country dialing code (1), the language
of air traffic control (American English), and the
lack of a country identifier for US internet
domains. But such systems, and by extension, the
global, are not American property, and in many
ways operate against American interests.
As mention of technology suggests, the Amer-
icanization of law also proceeds through efforts to
modernize. Modernization is usually a spatial as
well as a temporal concept. Especially from a
country admitted to be developing, moderniza-
tion is understood as the adoption of modalities
found in a developed country. This is often
presented in triumphal terms, as if no other
modernity were imaginable. But more subtly, the
experience and hence the practical authority of
those who represent the modernity in place tend
to be limited to their own history. The developed
country has by definition been successful in
becoming modern; the modern is understood in
terms of what the developed country has become.
Thus advice is given in terms that already presume
and so promote the culture of the center. Asked
about the establishment of core institutions of
modernity, notably after the collapse of commu-
nism in the Soviet block, American lawyers and
other experts have had great difficulty in doing
anything other than recounting what they really
know, the US situation. With regard to other
possible modernities, such experts have no experi-
ence and hence little business giving advice.
In light of the vast power of the US govern-
ment, the ubiquity and wealth of US civil insti-
tutions, especially corporations, and the sheer
difficulty of thought, observed Americanization is
often understood instrumentally, as the success of
a policy. And oftentimes it is; Americanization is
often intentional. Hence the globalization of
American law may be thought to reflect nothing
more than US interests and the power to realize
such interests, a species of cultural imperialism.
Social thought should guard, however, against
letting Realpolitik slide into reductionism.
Deciding whether a particular instance of law or
globalization on an American model should be
understood instrumentally, as an expression of US
power, or as socially constituted and perhaps
constrained by the process of globalization itself
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10:26 am Page 527
(or both, but in what proportion?) would require
a situated analysis considerably beyond the scope
of this supplement.
On a theoretical level, however, cultural
imperialism, as a fancy word for the power of the
United States, tends to negate the most funda-
mental premise of globalization, that politics is no
longer understood through the conceptual appar-
atus of the nation state. Without denying either
the power of the US government or the frisson of
using imperial imagery as a provocation, cultural
imperialism does not help much in understanding
what is new. (Power politics is important, endlessly
fascinating, but not new.) More specifically,
although the globalization of American law has its
undeniably pedantic (or imperial or evangelical)
aspects, such characterizations of the operations of
law in global society are rather too simple. The
charge of cultural imperialism presumes that the
basic unit of actual politics is a nation, the United
States. If that is so, then presumably law too is
intrinsically national. From this perspective, the
globalization of American law is merely a euphem-
ism for US hegemony, and globalization is an
unnecessary analytic concept. Thus, to the concep-
tual difficulty of sorting out the legal from global
society, we must add another difficulty, that of
determining whether contemporary phenomena
are to be understood nationally (as an expression
of American interests), or as a transformation of,
inter alia, the meaning of the national, and
thereby, the meaning of American.
A related problem with the idea of understand-
ing the Americanization of global law as a form of
cultural imperialism is the tacit assumption of a
nationalist definition of law. The idea that it is evil
presumption for one nation (perhaps the United
States) to influence the law of another nation
reflects a deeply positivist understanding of what
law is, namely, the formal commitments of a given
polity, articulations of the will of a given people.
This is hardly the only way to understand law. Law
has generally been understood as a constraint on
contemporary politics, not merely as a concrete
and formal expression of political will. The
commandments of God; the law of our fathers;
the law of nature or of justice; the law of all
nations such law is understood to exist above
national politics, and may be used to judge, even
constrain, national politics. The most explicit
expression of this impulse in the new global
society is human rights law. Human rights are
defined in terms of universal human entitlements,
rather than local political circumstances. Thus,
from the ideological perspective of the nascent
global society, law cannot be defined simply as the
formal expression of the will of any state, even a
state as powerful as the United States (witness the
27_mutns-in-citizenship_064831 10/5/06
528 Theory, Culture & Society 23(23)
international outrage over torture conducted by
US forces).
Indeed, at least in extreme circumstances such
as genocide, national sovereignty is understood to
be subordinate to global law, and hence armed
interventions are justified. Consider, in this regard,
the French use of force in Cote dIvoire, or the
Australians in East Timor, and perhaps most
importantly, the NATO intervention on behalf of
Kosovo, which proceeded without Security
Council authorization. Thus, although the state
remains practically indispensable and undeniably
present, if globalization is taken seriously, the state
can no longer claim to be the foundational unit of
international law and relations, as it has been
throughout the modern period (for these
purposes, usually dated from the Peace of West-
phalia in 1648). And, as a corollary, if law is under-
stood as the largely unarticulated yet foundational
commitments of a global society that cannot be
reduced to states, then law, too, cannot be defined
as the formal expressions of states. Instead, law
suffuses states. Therefore, the idea that states are
sovereign, in any exclusive sense, over their laws,
is no longer tenable.
We are thus left asking if anything, other than
the influence of old-fashioned national politics
(which remains important), explains the American
feel of global society? To close with a suggestion:
global law is familiar in an American sort of way in
part because many of the questions confronting
global society have long been asked in the United
States. Like global society, the United States was
established as a polity that partially fused different
cultures, while allowing for a fair degree of personal
and communal difference. The visible institutions of
law are especially important to such societies. Law
resolves disputes among people who share little else
and for whom community is difficult. More subtly,
law enables also culture and commerce, the weaving
of a thin but durable social fabric among people
strange to one another. Law even structures the
ways in which society, the public, is conceived,
notably through the assertion of rights.
But people who assert rights against one
another may not share enough; the law is a rather
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10:26 am Page 528
thin basis for culture. As a huge and young nation,
the United States has since its founding struggled,
sometimes very violently, to forge a culture
among peoples who share little. Unity (or even
community or solidarity) is perpetually a problem
for the United States. The lack of fellow-feeling
is increasingly recognized as a problem for the
European project, and is an even larger problem
for global society. The problem is that very large
modern societies are, by definition, formal and
legal. In such societies, individuals are defined in
legal terms rather than by place, tradition,
community, status, and so forth. Nowhere has
this been more true, or true for longer, than in
the United States, founded by immigrants who
did not know one another, shared little, and then
moved about the country, first westward, and
now within a huge internal labor market. But
wherever the citizen moves within the United
States, she carries with her a set of legal under-
standings, rights, that protect her, and that facili-
tate certain kinds of expression, foster personality
in certain ways. On the global stage, and
somewhat independently of her actual citizen-
ship, our exemplar may claim human rights. But
her rights, as either a citizen of the world, or of
the United States, will not provide our exemplar
the sorts of communal understandings the sense
of place, home commonly found in more stable
societies. Hence the American feel of global law
and society (one of the commonplaces with
which we began) is not merely due to American
origins or influence, but to a similarity in the situ-
ation of the individual vis--vis those overwhelm-
ingly large, modern, and therefore deeply legal
social matrices that are vaguely but inescapably
denominated global and American, where law
on good days provides order, but little solace for
alienation.
David A. Westbrook is Professor of Law, Uni-
versity at Buffalo, State University of New York.
He is the author of City of Gold: An Apology
for Global Capitalism in a Time of Discontent
(Routledge, 2003).