Yes, there is a way to unite the world under global rule of law.
The most common complaint I hear about global rule of law, especially when explicitly formulated and ratified, is the sheer improbability of the enterprise. The purpose of this article is to convince the skeptic that this need not necessarily be the case. In General Federalism we envision the ratification of a constitution between a minimum of two Nations which, over time, absorbs more Nations into the Union. Its fundamental law is constructed in such a way as to make this process both deterministic and rapid, but it is not proposed to be an overnight solution. That is the first thing to clear up. If differs from the incrementalist or Administrative law approach in that it places a complete but general constitutional solution around global unification that is deterministic and not open-ended (which might be fine in some contexts, but not this one).
General Federalism can be viewed as evolving from the “liberal” tradition but should probably not be considered a “democracy”, something I’ve discussed in other pieces. Usually, academics think of liberalism as being characterized by two elements of formal autonomy and abstract equality, specifically understood to be popular representation in the public sphere.
But General Federalism is not “liberal” if we strictly read this to mean only the public sphere. General Federalism allows for representation through delegation of authority, but not the exercise of it.
Some have observed that human history is a narrative involving a gradual reduction in the accretion of power and a corresponding increase in the use of systems of administrative and statutory rules. This is interesting since General Federalism is also notable for its considerable augmentation, over and above the regnant U.S. system, of rule of law and its dominance in governance.
The exercise of warrants must execute only upon validation of authenticity by its object, entering of private domiciles is forbidden outright, deception in rule of law is illegal (police cannot lie about your legal duties), abuse of equity in law is strongly curtailed and various rights afforded western courts are revoked, secret acts of the State are independently, real-time recorded and examined by the Supreme Court for probable cause of a crime, Executive authority to attach riders to Bills is forbidden outright, punishments, to include penalties of death, are outlawed outright, Executive authority to declare a person an enemy combatant is subject to the discretion of the Supreme Court, individual discretion in official acts is curtailed, Official Families are restricted to rule of law (no “house orders”), economic transactions of all types are subject to principles of equity, any citizen may enter in full standing to any court of the Federation for General Equity in any economic matter, Juries are composed of a mixture of immutable and mutable jurors (tends to block bad convictions), Juries are, in some cases, same-sex and on and on. All of these provisions significantly improve the chances that rule of law is observed. Most of these are substantive and appear in Article 7.
Having said this, most administrative law solutions to global governance (which deny any need of a constitution), simply rely on precepts any third grade child knows won’t suffice: improving the transparency and accountability of diffuse transnational regulatory regimes and focusing on improving the reasonableness and procedural fairness of the decisions made under transnational regulatory frameworks.
That is the extent of the rule of law they envision for governing the entire world! Note that there is no codification of anything stated there, its just fluff.
But for those that acknowledge the need for a constitution, which I can’t be sure is even a majority of advocates for world government, the discussion revolves more around what a global constitution is. So, much academic debate and discussion revolves around what the actual nature of “world government”. Is it just an extension of the State, and thus just a “super” State, or is it something unique altogether? And constitutions of the State are often referred to by academics as constitutions with a big “C”, while global constitutions are referred to as constitutions with a little “c”. Here I will not distinguish them in that manner since I am seeking in this piece to define how they are distinguished under General Federalism.
So, the answer to this question is best found by a thought experiment probing what the operations of a global State would be in the absence of other sovereign actors. Indeed, the answer to this question goes to the very core of what we mean by General Federalism. The General qualifier is what distinguishes this kind of governance from any other. And it is indeed a materially different kind and type of governance than what is seen at the national level. It is not an extension of Administrative law (whether in the sense of the Slaughter Fallacy or not), or just another form of State constitutionalism. It is an original construction.
With no foreign policy to consider, the purpose of the global State reduces to a simple proposition:
The only meaningful role of the super State’s is to act as the operator that serves to logically generalize special law and equity whenever circumstances compel it.
By “special” law and equity we are making a relative statement. And I note that I use the term “value” generically and that a “unique class of value” is the one-of-a-kind type of value considered as opposed to its actual, assigned value. If within the super State two or more assignments of the unique same class of value within the same society are incongruent, the assignment of the same class of value in that case is too specific to generate a unique assignment. The solution is to resolve the incongruity of the special cases by generalizing the assignment in some hierarchical manner. And in this sense it is analogous to State constitutionalism inasmuch as there are “levels” of government whose existence is justified by the differences in how different populations within the super State assign value within their communities. In this sense the “sub” levels of government are “special” as opposed to “general”; that is, their assignments do not have general applicability throughout the world.
But the reason why we have invoked a more sophisticated (hopefully) understanding of the already well understood “levels” of government is subtle. We are not content with simply calling these different classes of assignment “levels” and are drawn to a different scheme because we wish to focus on the very problem that plagues all efforts at achieving viable, durable world governance: the vast differences between societies that serve to divide and deny this ideal. General Federalism is specifically designed to focus on and address this issue.
In a previous article we mentioned some of the key obstacles to political unity as a distinction between the super State and the nation State:
1.) The number of languages spoken within the common jurisdiction is significantly higher.
2.) The cultural artifacts, generally, are considerably more diverse.
3.) The ideologies encountered will reflect greater extremes across the spectrum and appear globally with much greater diversity.
4.) The religions encountered will reflect greater extremes across the spectrum and appear globally with much greater diversity.
5.) Representation of a constituency will have to accomodate a numerically large margin of error in the voting process, something overlooked quite often when speaking of global “elections”.
6.) As an elementary risk analysis, we can say that if the (power) reward is greater than previously seen in national governments, the price paid to usurp it will be greater as well. This requires a considerably more resilient contract in terms of controlling opportunities for usurpation.
7.) It must be durable
What is unique about General Federalism and also unique about any successful global constitution (and which distinguishes it from a State constitution) is that we have constructed a specific set of procedural law around the induction of law and equity. An inductive procedure is one that proceeds from a set of specific examples, special cases, to a more general theorem or axiom, the general case. Up to this point in history the only general principles thus far elucidated are referred to as jus cogens principles. These include substantive legal precepts such as prohibitions against genocide, maritime piracy, slaving in general and wars of aggression and territorial aggrandizement. Not only are these precepts vastly inadequate as a body of statutory law, they are purely substantive. Just as a legislature cannot write a law for every possible future event, one must have a procedural process in place to address future events and; for our purposes here, must have a procedural process in place for the induction of law and equity. Therefore, it can be seen from this that these substantive precepts are token decorations adorning a desperate global condition better described as anarchy. In order to solve this dilemma
The program of General Federalism was to seek a procedural form by which a general assignment of value worldwide can be induced from any combination of assignments of the same unique value class anywhere in the world, hence the term General Federalism. This is achieved by validation using deduction; that is, analyzing the same assignment in reverse and by utilizing natural tendencies of government constructively.
The method devised consists of two key procedural attributes:
1.) All courts of the Federation operate on the principle of a legal predicate test whereby any material law heard in a court is tested for its deductive validity by tracing it back to fundamental law. If it fails, the law fails and is null. It then cannot be considered by that Court in that case or in any future case. Each State legislature is likewise required to provide the inductive formal logic establishing any laws validity as described before it shall become law. This is similar to precedent but considers hierarchical statutory law as such rather than prior rulings.
2.) A National Codicil to a Social Contract, if chosen by a Nation joining the Union, enforces generalization by the encroachment of federal powers over the passage of time, something both bounded in extent and constructively exploited in General Federalism. In other words, General Federalism does not pretend to exact a world government under a common sovereign set of law instantaneously upon ratification. It is a form of deterministic incrementalism as distinguished from the incrementalism favored by the Slaughter camp. And it can be just as revolutionary as Marxism-Lenninism.
The specific mechanisms behind these features are best explicated by beginning with their formulation in fundamental law. From A Constutition for a General Federation:
§ 6.7.2 Any State exercising their right to append to this Constitution a National Codicil to a Social Contract as in § 6.7.1 of this Constitution shall enjoy the following rights and privileges for a period of twelve years from the date said State ratified this Constitution: all privately owned or publicly traded commercial assets, to include financial institutions, may continue to operate as such, whether simply continuing to operate during this period or if created during this period and; said State’s currency status quo ante may continue to emit and circulate for the full duration of said twelve year period. Nothing in this Section shall imply that the Federation cannot circulate or emit a federal currency within said State simultaneously or that the Federation cannot operate the Public Trust in said State.
§ 6.7.3 Any State exercising their right to append to this Constitution a National Codicil to a Social Contract as in § 6.7.1 of this Constitution shall enjoy the following rights and privileges for a period of fifty years from the date said State ratified this Constitution: with the full exception of all provisions of this Constitution outside § 7.7 through § 7.12 inclusive of same and provided in any specific case of law no court of the Federation shall rule contrary, said State lex lata shall prevail over any other Laws of the Federation whenever the one shall contradict, alter, revoke or otherwise disfurnish the other if, during this same period of time, it is required that all of said State Law created comply with all of Article 7 of this Constitution and; any immediately preceding period of fifty years as in § 6.7.3 of this Constitution may repeat in like manner if upon the expiration of said preceding period of fifty years a simple majority of the State’s citizens casting a vote shall approve it.
This creates an environment where, if a State utiilzes the Codicil option, they can keep their existing statutory code and if it conflicts with federal code, it will prevail. However, if a court hears a related case the court will strike it down if it conflicts with federal code. Therefore, litigation can begin the process of striking down existing code. For a period of fifty years the State can continue to legislate “sovereign” statutes however, each can be ruled unconstitutional in court it the court hears a related case and if it conflicts with federal code.
The effect of this is to create a “statute chase” in which “sovereign” legslatures (which are just State legislatures) legislate in response to laws being ruled unconstitutional, which in turn can be ruled unconstitutional by a court if a court hears a related case (a case in which the law is a material factor). In practice this back and forth results in a gradual trend in which “sovereign” law begins to look more and more like federal code. However, from a Machiavellian point of view, it does not appear that way.
And most of this statute chase is restricted to personal laws since the provisions of the Constitution outside Article 7 still hold supreme.
Finally, this process operates under the induction of law and equity aforementioned – augmented by a very strong rule of law provision:
§ 1.3.4 Each House, including the Senate, and any body or assembly within the jurisdiction of the Federation authorized under this Constitution to make law, shall determine for each law it passes at the time of passage, by what more general but material law – by what legal predicate – said law is legitimized under this Constitution, reverting directly to this Constitution or to any standing Law or Laws of the Federation existing status quo ante.
§ 3.3.3 All courts under the jurisdiction of the Federation, to include the House of the Judiciary, shall initially set aside principles of equity in law by bias instead for substitution by Rule of Law in the predicate force of any more general law germane to the specific law at hand, as the House of the Legislator saw fit to declare as such and as prescribed in §1.3.4 of this Constitution, and may restore equity in law should it deem it necessary only upon exhaustion of all such Rule of Law and their predicates in force; and this practice shall maintain in the House of The Judiciary, in all cases of common law, and in all other courts in the Federation. And the court shall state in its opinion the causes for or against – as the case may be – the substitutions for which it was biased.
§ 3.3.4 Any court of the Federation, to include the House of the Judiciary, shall be obliged in hearing any case in law or equity, to review each Law material to the given case and shall determine that if said Law does not contain the full legal force and character of one or more predicate Laws or fundamental law existing status quo ante, or should said Law be internally inconsistent, then said Law shall be null and shall not exist as Law or Equity within the Federation.
A final word about the Induction Rule and the predicate chain is that this is also a very strong rule of law mechanism, adding considerable constraining force to the rules of law that can be legislated at any level.
If it is not evident at this point that a General Federalist system can politically unite any group of countries then you should read this again. The provisions supra serve to mold a society to a general statutory framework over a period of many years; years of court precedent and legislation in a very strong rule of law framework. What is devised here is a truly general method of the assignment of value in society. See the constitution for more.