What is the domain of global public law as a field of inquiry?
Global public law is an emerging field of research and practice. Its also a contested one. To define the research agenda for the Center for Global Public Law we must first understand how global public law as a field of inquiry is impacted by both how it has emerged and how it is contested.
Some argue that adding the word ‘global’ to public law is an anathema (Cf. Martin Loughlin, I-Con) at worst and a category mistake at best. The very idea of public law is deeply tied to that of the state and sovereign powers. The word global without the presence of a world state cannot contribute to our understanding of the object and purpose of public law. The public in public law remains within the boundaries of a sovereign state. The law in the public law is the law made by the state. To claim that public law has a global aspect is, therefore, nothing short of wishful thinking or lex ferenda by legal cosmopolitans of all shades and colours.
At first glance this argument may have some value. A closer analysis, however, shows that it is evident that the argument rests on a strong assumption that the term ‘global’ in the public law seeks to negate the centrality or the importance of the state in defining public law’s domain. Globalists are trying to do away with the state when naming the law. This need not be — and we argue is not — the case. When we talk about global public law as a domain of inquiry we foremost talk about an overarching approach that directs attention to the relationship between states and global forms of law with a public dimension. Global public law as a domain of inquiry does not seek to declare the end of the state. Rather, it asks public lawyers of all creeds to look beyond the state and beyond the classical categories of public law when defining and redefining public law, its purposes, reach, operation, legitimacy and effects. Global public law as a domain of inquiry is broad enough to host a range of researchers that have both sceptical views on the global dimensions of public law and its reach as well as the ardent supporters of global public law normatively. Global public law researchers may make both weak and strong forms of post-national claims. They may also opt for narrow or broad definitions of global public law. What brings them together is the commitment to investigate public law above and beyond the state. This may come in the shape of comparative public law, transnational public law, in the form of impact analyses of international public law on domestic public law as well as working on theoretical foundations of global public law and the chances of it growing roots within the circles of domestic judicial communities. Global public law as a domain of inquiry, therefore, offers a lens through which to study public law. A lens that is very much geared towards taking the international and comparative dimensions of public law into account together with its ever growing interaction with private law globally. It is also a lens that is against methodological nationalism as a primary mode of analysis and advancement of knowledge in the field.
It is a general view that global public law is an emerging field of inquiry. A main reason for its emergence is the necessity to break with some traditionally established modes of research in the legal field. First, global public law makes the boundaries between sub-disciplines (constitutional law, administrative law, international public law) more fluid. Second, it invites for a multi-layered analysis of public law that requires the researcher to look at interactions between domestic law and international law as well as domestic courts and international courts and also between different international laws and international courts. Third, global public law does not impose a pre-determined relationship on interactions between different levels of public law, but instead invites the researchers to discover and investigate these relationships in their strong and weak hierarchical forms as well as lateral forms. This is both as a matter of normative analysis and empirical analysis. The research agenda of global public law is not a top down one to impose global norms on domestic settings. Consider the journey of proportionality from the German Constitutional Court to the European Court of Human Rights and from there to the Turkish Constitutional Court. Global public law is also about empirically investigating how common public law principles travel and reach levels of global entrenchment in domestic legal systems.
The domain of global public law is a matter of constant definition substantively in each issue area. In my own field, international human rights law, how we interpret the scope of international human rights law provisions are under constant pressures from both domestic constitutional principles and horizontal international pressures. Consider the South African Constitutional Court’s principle of reasonableness and its impact on the individual complaints mechanism of the International Covenant on Economic Social and Cultural Rights on the one hand, and the shaping influence of the Convention on the Rights of Persons with Disabilities on the case law of the European Court of Human Rights in the recent case of C.L.R v. Romania.
Global public law is made by a diverse range of actors ranging from first instance court judges deciding on a woman’s right to her surname with reference to CEDAW in a court in Turkey to soft law principles drafted within the United Nations on the Duty to Respect Obligations of Multinational Corporations and other business enterprises and parliaments that change constitutions to incorporate strong monist principles into judicial interpretations of domestic laws as in the case of Mexico. Some actors are ardent supporters of global public law. Others resist it strongly. Students of global public law are interested in the entrepreneurs of global public law as well backlash against against it.
The Center for Global Public Law at Koç University is excited, therefore, to be part of normative, empirical debates on global public law and its transformative effects on our conceptions of law proper in the 21st century. This blog post series will be the home of discussions on the themes of global public law that are normative, empirical and case-focussed. It seeks to contribute to our better understanding of the domain of global public law for many years to come.