WP12: State of the Art

State of the Art: Introductory Remarks

Are there any normative patterns of globalisation regulating trade and population flows? Is a globalised borderless normative order already in place or is it gradually emerging and under which circumstances? What about the relations between an actual borderless normative order and EC Governance in the economic field? Is the EU Governance in terms of the security of the market a representative paradigm of security governance in a globalised world? Most importantly, what is the role of individual and new forms of subjectivityput forward in the context of globalisation? Which are the interactions and struggles between different techniques of exercising power as individualisation techniquesand how do they relate to new forms of normativity in a borderless order?

These are some crucial questions which demonstrate how the theme of our research, namely ‘Normative parameters of exceptionalism: Community governance patterns in the field of security and its implications for a future global governance as responding to the internal rules of globalisation, existing or to be’, may lead us to explore the vast literature on globalisation, the individual and governance.

In the age of globalisation several factors lead to the retreat of the State as the fundamental paradigm of our social/ political being and, most importantly, as the collectivity with the central role in providing safety and welfare for its citizens. Traditional mega-institutions and mechanisms established at national level, e. g. diplomacy, police, intelligence services and even armed forces, do not seem to be in a position to guarantee, on their own, efficient solutions against a series of transnational and widely diffused risks, ranging from health and environment protection to more traditional risks related to physical integrity and safety. Still, there do not exist, at this moment, with the exception of the UN Security Council, any truly supranational structures of government at global level or any instituted patterns of governance comparable to those already existing in the EU order. International economic organizations such as the World Bank (WB), the International Monetary Fund (IMF), and the G8, in the economic field, are far from presenting themselves as supranational patterns of governance/ government.

On the other hand, one may argue that the operation of market mechanisms underlying globalisation is complemented with new forms of normativity stemming from a variety of actions, conflicts and reactions/interactions of actors, especially by means of networks. Under the pressure of economic, but also of security needs, we witness the emergence of patterns of governance based not only on States and their administrations or on international economic institutions, but on the individual as agency as well as complex networks of interdependent actors. The mixture of economic and political liberalism in the post-modern context leads to modes of exercising power and control mechanisms at global level in the line of biopolitics brilliantly demonstrated by Foucault at national level. Under this reading, a borderless normative order based on internal rules linking the economic and the political sphere at global level is actually paving its way.

Furthermore, the patterns of governance developed under the Community paradigm can be used as adequate tools for examining the internal rules of the borderless normative order, since the EU system offers institutional patterns and mechanisms that, in many respects, precede the normative patterns of globalisation, especially in the economic and the monetary field. For instance, the co-ordination of Member States’ economic policies, the multilateral surveillance mechanisms, the informal decision-making process in the Euro zone or the method of open co-ordination in the social field are not without similarities with the G7 and G8 practices or the guidelines and the normative parameters set by economic institutions.

Most importantly, the internal rules of the global normative order are related tothe individual and new forms of subjectivitydeveloped in the globalisation context (e.g. citizen of the world, NGO’s, individual as agency, market actor); these ‘individualisation techniques’ provide, for instance, normative criteria for assessing the state of exception from the standpoint of market freedoms, eventually construed as fundamental constitutional liberties of the individual. As a matter of fact, the individual as subject may be taken as the starting point, and this is the option taken in this research, in order to bring out the patterns of power relations and normative criteria in the context of globalisation. The resistance against dominant figures of subjectivity, namely the State/ national subject, as well as the interactions developed between alternative forms of individualisation point to new modes of exercising power through normative criteria in a borderless global order.

Last but not least, the security discourse following the dramatic events of September 11th, 2001 informed the overall patterns of globalisation in ways that still need to be brought out in relation with the emergence of new forms of normativity. In particular, it is under examination whether the techniques of governance applied to the economic field in the Community context may be transposed to the realm of security as a means of preserving open markets and the smooth operation of transnational economic transactions (security of the market). On the other hand, it is also open to further investigation whether the requirements of ‘human security’ as opposed to national securitymay be effectively relied upon by the individual as agency, or, on the contrary, to which extent the actual prevalence of practices based on exceptionalism is already leading to new forms of domination under globalised intelligence networks of control. In any case, the overall (un)balance between market freedoms and human security rights directly depends on the operation of normative patterns developed following the September 11th events.

To put in one word, the complex relations developed between techniques of individualisation in the global context, normative criteria as internal rules of a borderless global order and the renewed security rationale form the cornerstone of our research on globalisation, the individual and governance.

«The Subject and Power»Foucault, M.(1982) in Dreyfus, H. and Rabinaw, P., eds., Beyond Structuralism and Hermeneutics, Chicago

It is unique that political and philosophical thought describes relations and interconnections of power in such a direct and illuminating way. In order to accommodate our project, it is wise to turn to Foucault’s economy of power relations that isolates the core of the post-modern political rationality to a very cohesive, but not structural analysis. We think that the politystructure or most likely the normative roots of the latter could not but participate in a new conceptual work that would actually conceive or decline from the idea of the conflict between the individual and the subject. The main points that derive from our thesis may be the following:

The actual reading of power is based on a régime de savoir that is producing types of individualisation more than it is suppressing the individual itself. Power is described as a way, a means towards the individual rather than a specification of the object that represents the expression of power per se: «... the main objective of these struggles is to attack not so much ‘such or such’ an institution of power, or group, or elite, or class, but rather a technique, a form of power». The importance of the new reading is that it considers the procedure of becoming the subject of power -than the traditional focusing to the object of power- as the power itself.

The dominant concept of Foucault’s understanding exists in the periphery of the term subject, which is presupposed, generated or identified through power. Individual is the major key to this kind of thinking. The subjectivation is related thoroughly to the corruption, the maintenance or the recognition of the means of self-determination. The importance here is to read the denudation of self-determination and state in a way that reforms institutions, includes the individual and proliferates confrontation, in order to produce or direct power through the state to major actors of global mobility. Power invades our basic self-assertion, the knowledge of us and the ‘Other’. Foucault is giving us an insight of the conflict between the state and the individual, to authenticate a larger scale of confrontation between the power and its counterbalance. The very nature of power depends on relations that exceed the notional categories of the present or Habermas’s distinctions between communication, domination and finalized activities. «The exercise of power is not simply a relationship between partners, individual or collective; it is a way in which certain actions modify others». The analysis of Foucault contributes to our aims insofar as it provides us with the innovative features of subjectivity through the emergence of the individual and the acknowledgement of a new order of political or economic relations that lead to the essence of power in its fundamental mountings.

Power is overcoming its regular and primitive characteristics. «Consensus and violence are the instruments or the results; they do not constitute the principle or the basic nature of power». In this way, freedom (the condition under which the individual or the actor processes the discretionary ability to choose between different possible ways to assume an activity) is an essential prerogative to the deliverance of power itself; the absolute domination of the body or the will represents the finality of ‘agonism’: «... a relationship which is at the same time reciprocal incitation and struggle; less of a face to face confrontation which paralyzes both sides than a permanent provocation».

The new power forms an apparatus that implicates past legal structures and regulatory regimes; these traditional instruments of surveillance diffuse the power relations inside the social nexus. The pattern described in Foucault’s work contributes to our reading in two distinctive ways: it describes a profound meaning of power that possesses characteristics which upgrade the development of political and economic regimes in a global scale; secondly, it establishes a link between the crisis of modernity and the institutional aspects of the creation of power relations as a result of that crisis.

Foucault’s position on the inclusion of various elements in the institutional function of power is a coherent reading that represents a critical turning point for our analysis. The conflicts illustrated in the unconventional status of subjectivity are reproduced inside the political and economic body of meta-states’ normativity. The modern strategies of power develop around agents, above institutions or legitimative forces of the imaginary constitution of reality, that implicate their pluralism of choices and the decline of the boundaries of tradition into a new form of relations that seek the dominant role.

A typical example of the adaptation of Foucault’s work is security or the economic freedoms and well-being. Security concerns may be insufficiently dealt with by the State itself, without taking action at a global or regional level. The same goes for well being -a prominent example is the four freedoms associated with the single market- and the economic mobility as a prerequisite for prosperity that they guarantee. In this way, can the simultaneously totalizing-individualizing form of power be projected at a global level in the absence of sufficiently effective state mechanisms at the present stage? Or does the void left by the State remain empty? The only way to answer this question is to uncover the eventual transformation of the individual’s potential for resistance. The struggles against power, new forms of resistance, may well help us to better locate where the power is actually exercised in the globalization context. Forms of submission-of subjectivity have to be seen in the light of recent developments in the techniques of power.

Here is where our primary task lies: to find alternative forms of subjectivityagainst the dominant paradigm of national subject/citizen and their diverse articulations and interactions. What we are seeking is this particular type of outer-determined, non-institutionalized subjectivity. Is this kind of subjectivity that will help us conceptualize two important elements of our research: a. The bottom-up structuring of various political and economic regimes. This will result through the clarification of the dividing practicesimposed by economic or political power: e.g. subject, individual, citizen, agency, consumer, market actor etc. What do they really mean? In which way are they contributing to our understanding? b.The dimensions of power beyond legal and institutional models. We should focus on conflicting strategies of individualisation and not on the internal rationality of power techniques. This will uncover the underlying factors of conflictsand antagonisms of strategies: e.g. Global versus local(intra-national) and regional, Market versus social cohesion/collective preferences. National security versus human security, NGOs with regard to human rights/ecology versus entrepreneurswith regard to the market

We believe that the emergence of individual as a new form of subjectivation could be developed into a new epistemological instrument that encompass the procedure and the definitions inside the sphere of our awareness beyond the present fixation on the traditional historical realms. The most important function of the instrument will be that it internalizes the major factors of global regulatory status into a singular reading.

«Entre modernité et mondialisation - Cinq leçons d’histoire de la philosophie du droit et de l’État» André-Jean Arnaud,1998, L.G.D.J., Paris

The conceptual tools required to grasp the normative aspects of the ‘borderless global order’ need to be derived from various sources dealing with globalization from a primarily theoretical viewpoint and benefiting from the contributions of many disciplines -law, economics, politics, sociology- as well. One such theoretical source dealing with the globalization process ant its implications is the work of André-Jean Arnaud, a scholar specialising primarily in sociology of law, but whose work also integrates various developments in several disciplines. Our working group uses his Entre modernité et mondialisation as one of the initial pillars of our research.

Arnaud studies certain significant aspects of the process of globalization in this collection of essays; in this report, the themes that are the most relevant for our research will be briefly presented. The introductory chapter offers a general account of globalization, which is important for the theoretical tools that need to be devised to grasp the normative parameters at global level. Globalization is the product of a number of conditions: a change in the modes of production; the development of markets of capital; the growth of multi-national enterprises; the relationships between regional economic blocks -including the EU; structural adjustments leading to privatization and diminishing the role of the State; the hegemony of neo-liberal concepts; a growing interest in the expansion of democracy, in the protection of human rights and in the establishment of the rule of law worldwide; and the growth of Non-Governmental Organizations (NGOs).

All these developments combined lead to a radical break with the economic, political and legal standards of the preceding period. Arnaud goes on to make certain theoretical suggestions, which should prove to be of great interest in the construction of a framework of reference for our work. Firstly, globalization imposes itself as a new paradigm in the social sciences; it has been accepted as a concept of reference crossing many disciplines -including law- and challenging traditional modes of thought. Arnaud makes reference to the need to tackle the problems emerging from the transgression of bordersas a result of globalization. Besides legal norms in their traditional acception, principles, strategies, political norms are employed to deal with the challenges posed, transforming at the same time the whole range of legal professions.

If this transformation of law has also been documented by other scholars in the discipline, Arnaud’s distinctive contribution lies in his argumentation as far as the relationships between the ‘global’ and the ‘local’ are concerned. He argues that a re-emergence of the ‘local’ in all its forms is taking place, contradicting globalizing tendencies. What characterizes globalization is ‘la dialectique du global et du local’.

The term ‘local’ is employed to describe, on the one hand, the process of production of legal norms at levels below the State as a legal order: infra-national collectivities-jurisdictions have acquired renewed vigor as law-producing mechanisms. On the other hand, most importantly, the term ‘local’ is used by the author to indicate, besides infra-national collectivities, ‘global regions’ as well. One such ‘global region’, perhaps the most important one, is the European Union. The EU legal order is, according to this line of thought, in a dialectical relationship with the ‘global’ as a new conceptual category. Thus, according to the writing of Hayek, whom Arnaud considers to be one of the key thinkers to understand the globalization process, not least because of the above-mentioned hegemony of neo-liberalism, an interdisciplinary approach as well as the rejection of legal positivism and of its belief in the existence of an unlimited sovereign power (of the Nation-State) are essential. This is true not only for the examination of the new global realities but for their inter-relationships with European governance patterns as well.

One further theoretical contribution offered by Arnaud, which may shed light in our research regarding the normative parameters of the new ‘borderless order’, is the attempt to link postmodernism and globalization. The up-till-now dominant paradigm designated as ‘modern’ has been challenged by postmodern approaches that attack its conceptual foundations without, on the other hand, wholly rejecting them. Postmodernism in law, more specifically, calls, rather, for their radical re-examination. It thus challenges abstraction, which is connected with the existence of (universally valid) axioms as foundation of a legal order. Postmodernism favours pragmatism, with its emphasis on social practices and the contextual approach rather than concepts and legal codes, as well as a certain relativism. It also advocates pluralism in the sources of legal norms, rather than one single norm-producing centre; and complexity, rather than simplicity and the legal security associated with the latter.

The above-mentioned characteristics could perhaps be used to argue that globalization is a postmodern manifestation.Arnaud’s position is that, though both postmodernism and globalization share some of these characteristics, including a concern for relativism and greater flexibility, they should by no means be equated. Whereas globalization is essentially based on neo-liberal premises, that is, its rationality is that of the market and the laws of the market, postmodernism refers, by definition, to multiple and diverging logics. Nevertheless, interesting links can be made between these two concepts, and our work intends to build on their implications.

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