Is a legal order that can include without excluding possible? Fellows’ seminar by Hans Lindahl

“Is an all-inclusive legal order possible? A global order of human rights, which would include without excluding, and offer leverage for taming exclusionary processes?” asked Hans Lindahl of the Tilburg Law School, Tilburg University, The Netherlands. “Should we be postulating the gradual emergence of one legal world that all humans could share as their own which governs how legal authorities deal with inclusion and exclusion? Is there a normatively robust concept of authority that can deal with the globalisation of inclusion and exclusion?”

“I’m trying to focus on what understanding of law makes sense of inclusion and exclusion today,” he continued. Lindahl was addressing STIAS fellows on his current book project which will examine the

Authority and the Globalisation of Inclusion and Exclusion. This projectforms part of the STIAS long-term project Boundaries and Legal Authority in a Global context within the Crossing Borders research theme.

“Law is a system of norms,” he continued. “It’s also a way of understanding space, time, subject, action and content.”

“Just talking about inequality doesn’t capture how things are anymore. It’s more than ‘haves’ or ‘have nots’. It’s about who is included and who excluded.”

“It also doesn’t make sense anymore to think of inclusion and exclusion as only referring to borders. We have to distinguish between boundaries in the form of physical borders and boundaries in the form of limits, the familiar versus the strange. Exclusion and inclusion takes place everywhere.”

Lindahl pointed out that globalisation has meant a move away from territorial states subject to local and international laws towards the emergence of transnational and global legal orders that regulate vast tracts of human behaviour. Examples include the World Trade Organisation (WTO), the International Organization for Standardization (ISO) and, even, eBay and the Fédération Internationale de Football Association (FIFA). Each of these supersedes territorial borders and aims for worldwide regulation, and therefore holds the promise of greater inclusiveness.

“At the same time, however, there is dogged, often desperate, resistance to emergent global legal orders by alter-globalisation movements which show that the price to be paid for greater inclusiveness is massive forms of exclusion.”

Pointing to examples of such collective action, such as Occupy Wall Street, Lindahl said: “There are ways of engaging where the law will fall silent. Alegality cannot be incorporated into the pragmatic legal order. Alegality is a form of resistance that refuses to be neutralised and can overturn the legal order.”

“Globalisation processes, as they are unfolding, amount to the globalisation of inclusion and exclusion. What does this tell us about the deep structure of legal orders? Are inclusion and exclusion necessary features of the law or are they merely contingent features associated with the globalisation of capitalism?”

These are some of the questions Lindahl hopes to address in his book.

“The problems begin when globe and world are used in a way that suggests that global legal orders such as the WTO have no outside,” he said. “Massive contestation of the WTO has dispelled this idea and pointed to the possibility of another type of world.”

“We need to ask ‘Who gets to say ‘We’ on behalf of ‘We’?’”

“The WTO takes a first-person perspective of ‘We’. It sees its role as furthering global trade under specific conditions. It includes certain values and principles but excludes others. What doesn’t fit into its vision of free global trade is excluded.”

Globalisation also encompasses the huge potential of technology. “Technology has led to a de-distancing,” said Lindahl. “Technology may bring close what is far physically and distance what is close physically.”

“The interaction between technology and collective action can compress space and time.”

Looking at the alternatives

Lindalh pointed to two mainstream models of justice – particularist which emphasises popular nationalism and the return to the Nation State where boundaries have defined functions. It explains phenomena like Brexit and Trump. “I believe this isn’t working anymore,” he said. “Trump’s America is finding it cannot exit itself completely from the world.”

The other model is universalism which Lindahl believes “can become imperialist and totalitarian”.

Lindahl believes that the alter-globalisation movements may offer the possibility of a legal order that can include without excluding.

“I’m trying to develop an alternative model of global justice – Authoritively Mediated Collective Action – or IACA. Justice as inclusion/exclusion, radical pluralism. A model that is sensitive to different forms of recognition and the entwinement of boundaries. That is never only ‘yours’ or ‘mine’ – neither controls – where the boundaries are in between.”

“I’m wondering if we should be imagining a world without an outside – one legal world. The movement of history may be towards such a legal order and about creating unity.”

“We need a heightened perception that there is no neutrality – no inclusion without exclusion,” he added. “Boundaries include what they exclude and exclude what they include.”

The model would encompass united collective action with directed obligations. “Law as a first-person plural concept – ‘we each’ and ‘we together’. With the law as the authority to decide in cases of conflict.”

In discussion, Lindahl was asked about genocide as an interesting study for global criminal law. “Why should genocide be the crime of crimes?” he asked, “What does genocide include? Why is climate change, for example, not the crime of crimes – whole island states are disappearing due to human actions. Again it comes down to what is excluded and what we choose to keep silent about.”

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