S-Space College of Law/Law School (법과대학/대학원) The Law Research Institute (법학연구소) 법학 법학 Volume 48, Number 1/4 (2007)
Globalization and Legal Theory
- Issue Date
- 서울대학교 법학연구소
- 법학, Vol.48 No.3, pp. 135-161
- 법의 지배; 공식법; 주류의 법이론; 법의 통일화; main-stream Legal theory; unification of Law; rule of Law; globalisation and Legal theory
- 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...