The new rules of global society, flexibility and informality dealing with difficult issues and achieving good results
| Autor | Wilson Almeida - Antonio Yang - Mayra Cavalcante |
| Cargo | Pós-doutor em Relações Internacionais pela Georgetown University, Washington, DC - Professor of International Trade. Chihlee University of Technology. Taipei, Taiwan - Mestre em Direito Internacional na Universidade Católica de Brasília, com especialização em Direito Público e em Direito Privado pela Universidade Federal do Piauí |
| Páginas | 23-46 |
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The increasing performance of multinational companies, corroborated by the financial liberalization, shows the main characteristics of financial globalization.
Financial, economic and social relations, which derive from the internationalization of commercial and monetary operations, demand supranational legal systems, that may take place where States cannot discipline them yet, efficiently and safely, though several new international agreements settled.
The State inefficiency in the regulation of new situations, involving transnational relations, causes a reflection on the role of the State in society and a possible redefinition in some of its functions, especially the state regulatory function.
In a globalized society, a clear attenuation in the state power of regulation is observed, while new attributions are conferred to it. Among these new activities, the coordination of new normative microsystems resulting from the globalization process, the neutralization of market dysfunctions and the development of public policies that reduce the negative effects of globalization attracts attention, which is noticed most clearly in the social field.
Global interdependence has occasioned the arise of different social situations that require from the State modern ways of acting, not only concerning their political actions, but also on the adoption of different legal standards and responsibility, security patterns.
The society begins to produce its own standards, aimed at specific areas and interests, without violating previous legal systems, such as disciplinary regulations, guidelines of production, codes of conduct, global agreements and standardized contracts with global reach.
This spread of private standards - which produce their effects without breaking the rules of public nature that still dominate the social order - reveal the current legal pluralism, widely characterized nowadays.
International Labor Law was significantly affected by new legal sources deriving from the expansion of multinational companies and the trans
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nationalization of markets and labor relations, reducing the role of the ILO as a regulator in this field of Law.
The state alone no longer is able to meet all the expectations of the globalized society, which entails the redefinition of its institutional role, and makes room for the rise of new social actors, supranational powers and new types of social regulation.
The modern legal history has been shaped by politics, and is characterized primarily by the statehood of Law. The bourgeois class, conquering the power in the 19th century, concentrated the monopoly of law in the state hands, making it the legitimate and sole creator of legal rules. Public law, subjected to the manifestation of the State's supreme will, became superior to other sources of normativeness, constituting a manifestation of authority and state sovereignty. Therefore, the legal system shaped exclusively by the State was gradually dissociated from the social and economic facts that have remained in continuous transformation (GROSSI, 2009: 158).
Even in the early twentieth century, dissatisfaction of different social groups (such as trade unions and industry groups) with the state apparatus and its limitations began to emerge. The internal sovereignty of the State began to be questioned, making room then to a state crisis scenario. Recently, along the creation of international public authorities who have imposed limitations on States - such as those resulting from the formation of the European Union – again the topic came to light. (CASSESE, 2010)
Currently the state crisis is still discussed, but from a different standpoint: the incapacity of state services to meet the expectations of citizens and society. The modern situation has caused a growing number of privatizations and state activities concessions to private companies, which has led to a reduction in government's role. (CASSESE, 2010)
Based on the analysis of these facts, Cassese (2010: 14) defines the State of crisis as the "loss in unit of the strongest public power in the domestic context and the loss of sovereignty in the international scene."
Internally, civil groups, many of them private, have won importance in the regulation of activities they develop, responding suitably and efficiently to the desires of the represented categories.
Externally, the continuous transformations in society led to the expansion of social and economic transactions, that exceeded national borders, arising then, the need for global public systems, which would prove able to discipline the new cross-border relations.
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The States, hence, currently face a new reality, reshaped by the moment in which their economic and social relations begin to transcend their geographic boundaries and internal demands, having to live with new regulatory subjects, which arose during the process of globalization. These events have significantly affected the role of the State, especially in its regulatory function.
For a better understanding of this process of globalization, the definition of the phenomenon by Faria stands out (2004: 52).
A systemic integration of the economy at supranational level was triggered by the increasing structural and functional differentiation of production systems and the subsequent expansion of business, trade and financial networks in scale.
This is a process of economic, trade and financial integration with supranational extent that goes beyond the limits of state action, and counts on the participation of public and private bodies and movements, in which the state power of control and management is reduced and shared with the new private actors who have gained more space and importance in the globalized economy.
Cassesse (2010:25) brings the same idea, more specifically as follows:
Globalization comprehends the development of networks of international production, allocation of productive units in different countries, fragmentation and flexibility of the production process, interpenetration of markets, quick reports and financial flows, change in the type of wealth and work, in addition to universal standards to means of bargaining.
Under the light of this new reality, mainly characterized by deterritorialization of economic activities, the State has experienced a process of redefinition in its sovereignty and regulatory role.
Sovereignty, one of the basis of the modern concept of State-Nation, had its concept modified since the 15th Century until the current moment. At the end of the 15th Century, when the concept of State arose, meanwhile the clash between the modern State and the Church for its political autonomy in issues related to public interests took place; sovereignty was characterized by unity and exclusivity of state power in politics, without the submission to any other authority (MIRANDA, 2004:
87).
Even in this period, Jean Bodin and Thomas Hobbes – the first authors to study the edges of sovereignty – highlighted in its concept the monopoly of the State's Legislative power: the power to create and repeal law; and the monopoly to use force or physical coercion: the power to impose particular behaviors to members of society, in order to generate new mechanisms to create and keep political and social cohesion (MIRANDA, 2004: 87).
Heller's concept was conceived in the same way, as follows:
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Sovereignty comprehends the capacity, either legal or real, to decide definitive and effectively every conflict that change the unit of socio-territorial cooperation, including against their legitimate people, if needed, besides the capacity to impose any decision to everyone, not even members of the State, but, initially, to all inhabitants of the territory. (HELLER, 1995, apud MIRANDA, 2004, p. 87)
Hobbes' concept, i.e. absolute sovereignty, without limitations, was deeply chanced during the next centuries, particularly in the 18th Century, when Rousseau defined sovereignty as an “expression of the common will of people, and not anymore as an exclusive attribute of some State or supreme commander ” (ROUSSEAU, 1953 apud MIRANDA, 2004:88), and as well as when some proposes to create an equilibrium in the Republican Power among the Executive, Legislative and Judiciary Powers were debated, since the latter was the sole and exclusive one.
Since that perspective have prevailed, the Legislative Power became the most important one among the political powers, once it expresses the common will of people by the elections of their representatives in the Parliament, consolidating a new concept of sovereignty, reaching a large extent in an internal order (MIRANDA, 2004.)
Based on that perspective, Habermas analyzed the question of sovereignty in State-Nations, drawing attention to three processes that, according to his understanding, could affect the capacity of sovereign activity of the State. The first one would be the loss in state control capacity which, according the author, means as follows: the State alone is no longer sufficiently able, by its own force, to defend its citizens against external effects resulting from decisions of other actors or against chain effects of such processes, which have their origin in their borderlines (HAVERMAS, 1999: 4-5).
The second process pointed out by the author as a possible damage to the State's sovereignty refers to the “growing deficits of legitimation in the decision-making process”, since, as a result of interdependence and interstate alliance, there is no coincidence...
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