World legalism is the extension of legalism to international relations. It is easier to understand as an alternative to other approaches to solving the global problems of collective action. According to global legalism, international law will solve these problems. World legalism is the approach of world government, except without a government. Legalists recognize that a world government is not likely in the near future, but they believe that a law without government can still solve global problems. Like economic integrationists, global legalists believe that states will solve global problems of collective action because it is in their interest to do so, but global legalists, as we shall see, do not place as much faith in decentralized action: global legalism is a strange mixture of top-down and bottom-up institutionalization, with states both creating international law and trapping themselves against their will. Like ideological integrationists, global legalists believe that states are moving towards ideological agreement, but ideological agreement is not so much about liberal democracy as about the value of legalism. Global legalists also place more emphasis on institutions than ideological integrationists. But why not rely on the political authorities? The answer may be that legalism becomes more attractive when regular government is weak, fragmented, unpopular, or otherwise incapable, while the courts themselves are effective and have a good reputation.
As mentioned above, American courts inherited the power and authority of the British system, and their appeal in the nineteenth century must have been strengthened by the weakness and isolation of the national government; State legislators were also widely suspicious. In today`s Europe, a legalistic mentality has taken hold, thanks in part to the success of the European Court of Justice in bringing together sovereign states that otherwise (until recently) refused to grant much power to Europe`s main political institutions, hampered by strict electoral rules and other weaknesses. Global legalism is not a doctrine or a theory. It sounds like an attitude or attitude – a set of beliefs about how the world works, a belief that, in various forms, dominates the thinking of international academic lawyers as well as practicing international lawyers and some government officials. Global legalism appeals to the population and influences government policy: many international institutions bear its character. Instead of defining it right away, let me start by describing “legalism” in general – as opposed to its global variant. The term “legalistic school” (fa jia 法家) is ubiquitous in studies of ancient Chinese political philosophy. Despite the many criticisms of its inaccuracy (e.g.
Goldin 2011), the term can still be used wisely as long as two important points are taken into account. First, the legalists were not a self-confident and organized intellectual current; On the contrary, the name was invented as a post-factum categorization of certain thinkers and texts, and its main function before the twentieth century was that of a bibliographic category in imperial libraries. Therefore, the identification of a thinker or a text as “legalistic” will forever remain arbitrary; The term can be used as a heuristic convention, but should not (Pace Creel 1974) be used as an analyzer. Second, “legalism” is a problematic name. The Chinese term fa jia is already misleading because it inadvertently reduces the rich intellectual content of this current to a single keyword, fa. “Legalism” is a doubly misleading English translation, since the semantic scope of the term fa 法 is much broader than “law”; It also refers to methods, norms, impersonal regulations, etc. (Creel 1974:147-149; Goldin, 2011). It is therefore incongruous to discuss fa jia in the context of the Western notion of “rule of law” as it was popular in modern Chinese research (e.g., Hsiao 1979: 442-446) and as is sometimes still done today (Fu Zhengyuan 1996: 158-161). Given these intrinsic inaccuracies of the term “legalism”, it can only be used for heuristic reasons, as follows. The term is simply so prevalent in the scientific literature that replacing it with a new name will only confuse readers further. It remains to be seen whether legalism can prevail and benefit people in countries without legalistic traditions. If one limits one`s attention to the vast developing countries, there is perhaps nothing more impressive than the distance between their legalistic ideals and the behaviour of governments.
Many countries have ambitious and generous constitutions that grant important rights – to education, to health care – that simply will not be enforced. Judges can write satisfactorily and impressively about the importance of these rights and the government`s obligation to respect them, but they cannot enforce their judgments. Most often, the judiciary is corrupt or incompetent, or controlled by the government; People may stand in line in court, but don`t expect a verdict for a decade or more. Isn`t it rude to criticize global legalism? We now turn to that question. In short, legalism in the broad sense is the idea that law and legal institutions can maintain order and resolve political disputes. It manifests itself in powerful courts, a ruling class of lawyers, and a reliance on legalistic procedures in decision-making bodies. Judge. One could imagine a rules-based society that is not legalistic; For example, the rules could come from a religious text. A crucial element of legalism is the powerful role of the judge. Judges are outside politics because of their ideological reputation; They resolve cases impartially by invoking the rules.
This gives them immense prestige. The legalistic mentality implicitly assumes that existing rules can solve any problem. Real judges know best. Like the priests of an ancient society who know that their magic is only an illusion, judges claim to find laws – that is, to apply the rules – even when they do. They make laws by invoking vague or contradictory rules that indicate no specific outcome while secretly making a political decision. The trick works because judges, like old priests, can use common sense and share society`s dominant values, so they can usually handle cases in a way that, overall, seems fair. When judges dominate politics, a society becomes quarrelsome: people try to influence politics by prosecuting. To understand the vocation of legalism, one must understand the appeal of the judge.