Who trusts China’s government, or the regime in Russia, in global efforts to improve cyber security in financial systems or to respect privacy? Who places any value on their commitments in the area of protecting endangered habitats or species, or to phase out products that damage the ozone layer? Who trusts them to respect intellectual property rights, or to develop AI, or genetic engineering in a socially responsible way?
This blog looks at an approach to building global rules that excludes those governments we cannot trust to share the same fundamental values or to implement the same goals. It does not rely on the top down promulgation of universal rules built on the theatre of grandstanding global conferences, self-serving international bodies and empty international treaties. It maps a different way ahead in an imperfect world.
This alternative model relies on a bottom up approach to international rule making, built on step-by-step cooperation on narrowly defined agendas between the professional, governmental, and legal authorities of democratic countries that can work side-by-side on common problems. They can work side-by-side because they see and approach the particular problems in the same way. They share basic values in the area.
This alternative path, based on like-mindedness between democratic countries, centres on what is known as ‘comity’.
Comity can be defined as referring to the web of practices that enable different and co-existing systems of authority to cooperate together, side-by-side, in order to solve common problems. It is a world where the starting point for authority is essentially ethical.. The prototype in the post second world war history is that of the OEEC built around countries that wished to reestablish democracy and market values.
The impulse behind the model is the acceptance that building global rules through meaningful global international agreements is stalled for the foreseeable future. The reason is that the principal governments on the world stage, the unilateralists such as China, the US, Russia, and regional actors such as the EU do not share common values.
Occasionally the interests of major countries and groups come together and coincide. But the absence of shared underlying values means that any international commitments will likely be rare, confined to vague statements of principle, and lack follow-through implementation.
The sad reality underlying global rule making, described in previous blogs, is that we live in a world without an effective international order and without a dependable institutional model for building rules. We rely on the self-correcting sensors of different actors, states, courts, businesses, professionals, NGO’s and others, to keep the show on the road. The analogy is to a driverless or autonomous vehicle. Three generations on from the Second World War this is not where we should be.
The comity alternative
An alternative approach to building a global order is for smaller groupings of like-minded authorities and countries to cooperate much more closely together. Success between limited groups can make an important contribution to global order in its own policy area. Successes can be emulated and exported. Success can be projected beyond the territories of the group itself.
At a high political level, recent precedents of limited numbers of like-minded groups of states acting together are discouraging. Intervention in Libya has left a country divided and in conflict. Intervention in Iraq has spawned a legacy of recrimination and disillusion. The difficulties with Iran and N Korea on their nuclear programs provide further cautionary stories.
However, despite this discouragement, there remains an agenda where closer cooperation between limited groupings of like-minded countries still makes sense. It would not focus on high political aims or the projection of military force. Instead it would be built around a ‘bottom up’, approach to international rule building in limited but ethically important areas where international cooperation makes good sense.
Recent examples include the G7 group set up in 2018 to look at cybersecurity issues in the financial sector and the36 member OECD grouping set up in 2017 to look at principles relating to AI.
The acceptance of legal pluralism
The key feature of this approach to international rule building is that it involves the acceptance of what is discussed in academic literature under the term of ‘legal pluralism’ – the co-existence of different systems of authority rather than the establishment of a superior global authority.
Historically, situations of legal pluralism are not unusual. In Europe there was a long period of co-existence between the law of the monarch, the law of the church and the law of business guilds. In more recent times there has been a parallel existence of the legal systems exported through the world into colonial possessions with local or indigenous law. There is also a co-existence between state law and Sharia law in a number of countries. In an international context there has been scholarly discussion of legal pluralism in international trade policy, the environment, competition policy and human rights.
In an international context, areas of public policy where comity between different systems of authority may have a role are identified by frustration points. There is ‘like-mindedness’ between some jurisdictions but a lack of universal agreement that makes fully international rule making unlikely or, at best, only rhetorical.
Such areas might include cyber security, AI, personal data handling, some aspects of health & safety such as genetic engineering, preservation of species & habitat, rules relating to the organization of markets including competition policy, intellectual property, corporate governance, and possibly certain areas of human rights, including the principles and procedures of administrative justice.
The challenge of comity
Generally speaking situations of pluralist authority have not been welcomed by either legal theorists or political scientists. They have been seen as the source of inevitable conflict.
In political science, theories of the state have been built around the idea of a sovereign power with a monopoly of ‘violence’ or enforcement capability.
At the same time, the idea of the rule of law has often been seen either as coterminous with the state, or alternatively, ‘universal’ with little space for hybrids in between.
Comity by contrast asks us to think in terms of systems of authority that are open. They are open in how they operate. They are open to how they react to, influence and absorb ideas, practices and knowledge from outside sources. They are open in their reach.
The role of comity between different systems raises questions at different levels:
At a practical level there are questions about the range of practices that can bring different systems together and facilitate side-by-side cooperation. At a different level there are questions about how to organise the institutional framework.
At a theoretical level there are two fundamental questions:
The first is about what is called ‘instrumentalism’. It is about the relationship between the practical and problem-solving world of comity with the underlying norms of democratic forms of government and the rule of law. in a domestic and international context.
The second is about the justification for authority in open systems. It seems that authority exists without an anchor. It is authority that reaches across, reaches into, and reaches beyond the state but that is less than universal. It is dominated by professionals who can appear to ‘capture’ the levers of power.
International cooperation among the like-minded seems to turn the clock back to the days of the Cold War. We no longer face that particular challenge. However, if we want to get away from the frictions and dangers that result from each country in the world pursuing its own course, and accept at the same time the difficulty of organizing fully global rules, then comity between the like-minded may offer the best way forward.
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