지구화와 법이론

Abstract

This article approaches the issue of globalization within a realm of legal

theory and legal philosophy, and beyond investigation of its effect on the

constituents of law. Discussion on the background and significance of

globalization will be followed by exploration on how globalization influences the

rule of law, the role of a nation, and how it challenges the main-stream legal

theory. From thereon, a new legal theory in the globalization era will be

speculated. Instead of a theoretical explanation on the relationship of global trend

and law, here the emphasis would be put on interpreting diverse stream and

contradiction of the phenomena. In addition, globalization will not be simplified

into concepts such as interdependence, unification, universalism, or convergence.

In a traditional point of view, the influence of the economic globalization on

law appears to be alleviation of legalism or legal formalism, and a trend toward

legal unification. Alleviation of formalism and impairment of legal stability due

to global increase in mobility increases the legal uncertainty. However, this does

not directly cause retrogression of rule of law.

It is rather probable that legal regulation will be more requested with

increased threat from growing national and international mobility and market

uncertainty. Furthermore the global distrust against supranational convergence of

power and hierarchical authority may also call for a legal support for

individuals human right.

The mainstream legal theory is being challenged by the wave of globalization

these days. Globalization raises question on the so called black box theory,

which focuses on the analysis of the legal system that is regarded as...