The Impact of Globalization on the Reform of the State and the Law in Latin America
Fix-Fierro, Hector, Lopez-Ayllo, Sergio, Houston Journal of International Law
Globalization is, without any doubt, one of the fashionable topics today. We can observe daily its most visible manifestations and consequences -- for example, in the consumption of goods and services, including information. Globalization, however, is not truly a new phenomenon. Rather, today's globalization is the most recent and accelerated stage in the process of the world-wide diffusion of a particular model of civilization -- a process that began more than five centuries ago. What is certain is that we have hardly begun to create the adequate conceptual and theoretical framework to explain and appraise this process.(1)
The development of such a framework faces considerable difficulties. Jurisprudence and other social sciences are relatively helpless in coming to terms with it because they were born or took their modern shape under the historical shadow of the nation-state. Hence, phenomena extending beyond this horizon and cutting across national borders do not find an easy accommodation in the conceptual categories developed by such sciences.
Continuing the effort begun in previous projects,(2) this article intends to explore some of the legal consequences of the vast economic and political transformations occurring in the last few years in Latin American countries. The analysis will focus on two important areas. Part IV will examine 1) the liberalization of the economy under a new economic development model, and 2) the justice system. The transformations in both of these areas have occurred as a response to changes in the international context and to the internal dynamics of the respective societies. In both cases, the law and the legal institutions have initiated a process of "opening" -- of reception of and adaptation to external influences -- as well as the establishment of new links with other countries and with the international order, as shown by free trade agreements.
This exploration is preceded by two sections. Part II explains briefly the crisis" of the nation-state and of the traditional concept of sovereignty. Part III attempts to establish a relationship between the concepts of "globalization" and "transnationalization" and the law. The conclusions in Part V briefly examine some consequences of our analysis for the concept and the role of international law.
II. From the Nation-State to the World System(3)
The concept of "globalization" can only be understood in a perspective that reexamines the nation-state in the temporal-spatial dimension and that allows us to recognize it as a historically determined institution.
The modern state had its origin in Western Europe between the thirteenth and eighteenth centuries, essentially as an answer to the crisis of territorial organization at the end of the Middle Ages. Thereafter, this model of political and territorial organization extended itself to the entire world with claims to universality. Today, as a result of historical, social, and technological conditions created by new processes and new actors, the state is confronting a "crisis" that compels us to reconsider its place and role in modern society.
The modern state is constituted first of all as a "territorial corporation." Its territory has been the space within which a state claims for itself the sovereign exercise of regulatory powers over a population. In its traditional formulation, sovereignty included the idea of final authority, both inside the state's borders and in relation to other states. Thus, the states enjoyed equality in theory, regardless of the actual differences that prevailed between them. In this perspective, international law was the law of the states and for the states -- that is to say, the law which established the conditions for their mutual recognition as subjects and which regulated their reciprocal relations.
Toward the middle of the twentieth century, the state became the only legitimate organization on the international stage, operating both as an axis of the world and of political discourse. …