The Globalisation and the National States

Boguslaw Banaszak

A Paper by Boguslaw Banaszak, Head of the Institute of Constitutional Law, Full Professor of University of Wroclaw (Poland), presented at Eighth Rhodes Forum Session, October 2010

…the decline of the state cannot be diagnosed, on the contrary, there is a distinct tendency in Europe for new states to emerge, to strengthen the sense of separateness of the societies living in certain territories.

1. The second part of the 20th century saw the development of multiple links of global character, which brought about the notion of globalisation. The attempts to define the notion are undertaken primarily by political sciences, but the issue remains within the sphere of interest of lawyers, who are confronted in their everyday activities, in the usual conduct of legal transactions with new problems resulting from civilisational transformations, the transformations in the area of international political and economical relations as well as international law itself.

From the point of view of this conference, the most significant definition of globalisation among the many quoted in the literature (none of which, incidentally, has been universally accepted) is that proposed by W. Aniol, who perceives it as "a complex of links between economic, legal, technological, moral, scientific and artistic orders, which aim at unifying the basis of social-economic and political life of the world"[1]. In view of the above, a question arises whether the research of the political systems of individual democratic states make sense and whether the constitutional principles providing the grounds for their existence and the existence of their institutions are not deformed by the uniformisation processes. The question may be set in yet another, more concise way - do the currently existing states make sense? If such a form of organisation of societies as the state were to disappear, the research of the political systems of states, and thus of their national laws would not make sense.

It would not be easy to answer both questions as we are at the beginning of a certain process and there are no sufficient premises for predicting the directions of its development and its results. The currently existing phenomena lend themselves to various interpretations. However, the decline of the state can not be diagnosed, on the contrary, there is a distinct tendency in Europe for new states to emerge, to strengthen the sense of separateness of the societies living in certain territories. Globalisation "does not denote the end of the state or unification of states under one authority"[2]. The phenomenon may be variously judged and various conclusions may be drawn as to the effect of globalisation on the constitutional law.

Some point to negative effects of the globalisation process on the role of the contemporary state, like Z. Bauman, who thinks that "the drive towards creating new and in each instance weaker, with increasingly poorer means at their disposal but 'politically independent' territorial entities does not contradict the economic trend towards globalisation. [...] World finance, trade and information industry, due to the liberty of action and unlimited freedom in attaining their aims are dependent on the dispersion of the world political scene. They all favour the existence of weak states [...] [which] may be easily reduced to the useful role of police districts providing the minimum order indispensable for conducting business"[3]. In such states the significance of the constitutions and the basic principles of the political systems should be re-evaluated, especially the principle of sovereignty and constitutional regulation of the sources of law, which would result in the need to redefine the notions rudimentary for the constitutional law. This, in turn, would set new tasks for the comparative law, which would have to focus on researching the changes in understanding these notions in individual states and the effect of their institutional manifestation in one state on another. "Only this [...] makes sense if constitutions and constitutionalism are to survive as the reflection of real social processes and not merely as museum exhibits"[4].

Another group of authors seems not to notice a direct relation between globalisation and systemic transformation of contemporary states. They refer to the constitutions of individual states, which did not introduce any fundamental changes in the regulation of the principles of political systems, the rights of an individual, the system of state institutions, etc., which are connected with the processes of globalisation. This results from the fact that we are faced with the phenomena in status nascendi exceptionally difficult to comprehend and evaluate. Therefore, many constitutions remain as they were formulated in the 19th and in the first half of the 20th centuries, still performing their functions sufficiently well. Even the new, recently resolved constitutions do not include any revolutionary changes constituting a reaction to globalisation, thus not differing substantially in its regulation from the constitutions of democratic states resolved earlier. This is well exemplified by the Polish constitution of 1997 or the Swiss constitution of 1999. In both cases the legislator of the political system purposefully resigned from regulating certain issues, postponing their legislation. Yet, in each case they are different matters, which escape interpretation within the context of globalisation processes. As by P. Haeberle observed in relation to the new Swiss constitution, the only justification for the omissions is the fact that the legislator of the political system did so in the cases where there is no consensus and the issues are still being discussed[5]. The same may be said of the Polish constitution of 1997.

2. The development of Globalisation also stimulates the questions concerning the future of the classically understood internal law and national constitution. The future is not very promising if it were assumed that "the notion of the constitution, at least in its wide meaning, may be transformed onto the supranational level [...] "[6].

It is necessary to point out that there are the national constitutions which emphasize such values as the supreme legal force of the constitution, the independence and territorial integrity. For example the art. 90 (l) of the polish Constitution states: "The Republic of Poland, by virtue of international agreements, delegates to an international organization or international institution the competence of organs of State authority in relation to certain matters". This regulation allows only to delegate the competences but not to limit the sovereignty. The Constitutional Tribunal have stated: “The Constitution remains ‘the supreme law of the Republic of Poland’ in relation to all international agreements, including agreements delegating competence. In particular […] there could not come about a delegating of competence to the extend that would cause Poland not to be able to function as a sovereign and democratic state. Furthermore, the limiting of the scope of delegating to ‘certain matters’ means a prohibition on delegating: firstly, the entirely of the competence of a given organ; secondly, competence in the entirely of matters in a given field; and thirdly, competence as to the essence of matters defining the management of a given organ of state authority”[7].

Recognising the supreme position of the constitution in the system of sources of law is the logical consequence of the fact that the constitution defines the subject of state authority and delegates competencies (including legislation) to state institutions. The principles of the supremacy of the constitution and the hierarchical structure of the system of sources of law in a democratic state prevent legal chaos. It may thus be assumed that if, on the basis of an international agreement, a country ceded the competence of proclaiming law to an international organisation or an institution, the constitution remains the supreme law. It should be borne in mind that - as is emphasised in the Polish legal sciences - "the fact of ceding does not result in [...] the loss of sovereignty of a state over the ceded powers as it is not of an absolute character and may be revoked"[8].

Doubtless the states are obliged to respect the fundamental values constituting global order. However, this does not define either the contents of the national constitution itself nor the form of a given state organ. For example the democracy means division of powers and ensurance of society's control over the executive. Achievement of these aims is possible in several ways: it can be the system with strong presidential power or the system with parliament as supreme state organ, or else the English-Model of strong prime-minister or similar to it - the chancellor model of government etc. We should not forget that the constitution is not used for establishing or adoption a hierarchy of values - this is the role of church. Constitutions are meant to materialize the values in form of legal norms, to establish the hierarchy of norms and rules in the organization of the state. The constitution does not create any economic or political system. It only serves to organize the state and to create relations between the individual and the state. Constitution is the essence of the state and national identity.

3. A more detailed analysis of the binding constitutions and even the practice of their application does not reveal any simple cause and effect relation between globalisation and the constitutional norm or the application of the constitution. If it were assumed that globalisation is a process which actually began in the time of great geographical discoveries, i.e. before first constitutions were ever resolved, this absence of direct relation is hardly surprising. On the other hand, the globalisation processes can not be easily separated from some other phenomena characteristic for the modern world, to mention only the scientific and technological revolution and its consequences. One of the latter is the increasing complexity of social relations and the resulting necessity of their legal regulation. The number of resolved norms is increasing and their quality is rapidly decreasing. The excessive number of norms results in increasingly deteriorating awareness of the law, which is accompanied by the application of only these norms that from a certain point of view seem sensible. This in turns results in impairing the certainty of law, thus impairing the principle of the lawful state. Democratic states attempt to limit this specific deluge and inflation of legal acts, despite the absence of new and effective way of doing it. It is not even the fact that such unusual proposals are made as that proposed by the German FDP aiming at limiting the number of resolved legal acts, but rather the absence of new institutions, procedures, etc. Therefore, for the time being, the so-far existing mechanisms resulting from the lawful state must suffice. One of them is the supervision of constitutionality of law performed by constitutional courts[9]. Thus, the increasing popularity of this institution and transforming it into a judicial or quasi-judicial body, even though originally it was not to assume such a function (e.g. the French Constitutional Council).

The second example, more directly related to the reaction to globalisation, is regionalisation and decentralisation. Here, the institutions already existing in some states are becoming more universal as they respond to new social needs. "Even there where federal states or the states with distinct regions do not exist, a growing significance of regionalisation and decentralisation is observed. They play a role in economy, especially in the employment and industrial policy. More and more advantages of the organisation based on regionalism and decentralisation are being found. [...] the significance of regional economic areas in the globalised economy is confirmed"[10].

Similar examples are numerous. They well substantiate the argument that for the time being such effect of globalisation on the internal law that would contradict the sense of its existence can not be unequivocally found. The authors writing about the states reduced to the role of police districts stipulate the need to re-direct the research of constitutional principles and institutions but as a rule they do not indicate what changes reflecting the ongoing processes may already be observed and what legal implications they entail. They only state that this is significant for the notion of sovereignty, the idea of the constitution, etc., avoiding indicating what concrete significance is the matter, thus lacking a complex approach. It is not enough to state that the concepts of sovereignty to date are no longer valid as this should be accompanied by the definitions of the new ones, of the new subjects of sovereignty ruling the police districts mentioned above, what should replace the state constitutions, what principles a new legal system should be based on, etc. Today, these question can not be answered by the comparative-legal research. The answers may at most belong to the sphere of acceptable intellectual speculation, which does not undermine the contemporary significance of the internal law. The results of its research are not so much useful in the context of the effect of globalisation on the political system but to show how the legislators of the political systems in individual states react to the technological, economic, social, etc. changes occurring on the global scale. They will not, however, result in re-evaluating and re-defining the notions rudimentary for the internal law. It transpires that the reality may still be described with the existing notional apparatus.

A reference to the WTO conference in Cancun in Mexico in 2003 may prove useful here. It showed that states, even the poor ones, have resisted the attempts to be reduced to the role of specific police districts. They are still able to defend their interests if they consider them to emerge from the idea of sovereignty and independence.

Conclusions

The last example shows that states, faced with global phenomena, must undertake action together if they want to attain their goals, which is not identical with loss of independence. Referring to the values contained in their constitutions, they will try to influence the international law. This was indicated earlier. D. Thuerer wrote: "Today the need arises to supervise the concentrations of power of a new kind which remains, e.g. within the multinational companies. The supervision in the conditions of economy undergoing the globalisation process may only be executed with the aid of the national law. Only the joint effort of states, also concerning the economy, will ensure the implementation of the ideals emerging from the idea of a lawful state, such as: restriction of authority and its division, freedom of individuals, transparency and responsibility in executing authority or social and ecological honesty"[11].

This paper shows that the decline of the state cannot be diagnosed, on the contrary, there is a distinct tendency in Europe for new states to emerge, to strengthen the sense of separateness of the societies living in certain territories.



[1] A. Żmigrodzki (ed.) Encyklopedia politologii vol. 5 T. Łoś-Nowak (ed.) Stosunki międzynarodowe Zakamycze 2002, p. 121.

[2] The opinion of H. Gomes Buenda - quoted after: ibidem, p. 121.

[3] Z. Bauman Globalizacja Warszawa 2000, p. 81-82.

[4] J. Wawrzyniak Globalizacja a problemy konstytucjonalizmu in: M. Kruk, J. Trzciński, M. Wawrzyniak (ed.), Konstytucja i władza we współczesnym świecie. Doktryna - prawo - praktyka Warszawa 2002, p. 230.

[5] P. Haeberle Die "total" revidierte Bundesverfassung der Schweiz von 1999/2000 in: H.-W. Arndt, M.-E. Geis, D. Lorenz (ed.) Staat -Kirche - Verwaltung. Festschrift fuer Hartmut Maurer zum 70. Geburtstag Muenchen 2001, p. 946-947.

[6] R. Arnold Perspektywy prawne powstania konstytucji europejskiej Państwo i Prawo 7/2000, p. 36.

[7] OTK ZU (Judgements of the Constitutional Tribunal. An Official Collection) Nr 5/A/2005, poz . 49.

[8] J. Jaskiernia Akcesja do Unii Europejskiej a konstytucyjny system stanowienia prawa in: H. Zięba-Załucka and M. Kijowski (Hrsg.) Akcesja do Unii Europejskiej a Konstytucja Rzeczypospolitej Polskiej Rzeszów 2002, p. 10.

[9] Cf. L. Adamovich Stirbt der Rechtsstaat? Die Presse of 4 May 1996, p. 2.

[10] H. Schambeck Ueber eine Idee einer EU-Verfassung in: C. Baudenbacher, H. Mayer, H. Torggler (ed.) Ein Leben in Praxis und Wissenschaft. Festschrift Walter Barfuss zum 65. Geburtstag Wien 2002, p. 229.

[11] D. Thuerer Prawo międzynarodowe a prawo krajowe in: Z. Czeszejko-Sochacki Konstytucja federalna Szwajcarskiej Konfederacji z 1999 r. i Konstytucja Rzeczypospolitej Polskiej z 1997 r. Białystok 2001, p. 113.