July 2014 Bar Bulletin
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July 2014 Bar Bulletin

The Constitutional Order of the Global Market-State

By Robert WM Zierman


Ten years ago, I presented my final paper to then-retiring constitutional law professor and former dean of Seattle University School of Law James E. Bond. This paper was the culminating work for his final class, "Law and Liberty in the Post-911 World."

Seeking to understand how globalization was altering the "World's Constitution Order," my paper started with the following quote from the pithiest of our readings - Philip Bobbitt's The Shield of Achilles:

The constitutional order of a state and its strategic posture toward other states together form the inner and outer membrane of a state. That membrane is secured by violence; without that security, a state ceases to exist. What is distinctive about the State is the requirement that the violence it deploys on its behalf must be legitimate; that is, it must be accepted within as a matter of law, and accepted without as an appropriate act of state sovereignty.1

My daily dealings involve the emotional violence of warring sets of neighbors, one or both of whom have personal constitutions that may, unless otherwise harnessed, necessitate using the courts' resources to resolve issues respecting their "membranes," i.e., boundaries.

Yet, there is obviously a marked difference in the type of "membranes" that I seek to peacefully determine and those which Bobbitt exhaustively explains in a historical sweep of the various states' evolutionary progress from the state that we appear to have been closing - the Nation-State - and the new state we are entering, which he names the Market-State.

The marked departure from past states - Princely, Kingly, Territorial, State-Nation and Nation-State2 - is that all of them had specific geographic bounds. This is decreasingly the case. Bobbitt identifies the Nation-State period as running from the start of World War I through the end of the Cold War at the fall of the Berlin Wall. He identifies this as the result of three innovations, specifically "nuclear weapons, international communications, and the technology of rapid mathematical computation."3

Bobbitt further notes that throughout history the innovations used to close out one state, sow the seeds of discord in the next. So, the world generally finds illegitimate both the use and the build-up of nuclear weapons. Yet, similar to handguns as equalizers, those states - particularly North Korea - prevented from fully joining the "nuclear club," do not relish their need for cover and, thus, subordination to those states that remain "nuclear club card carrying members."

Much more importantly, international communications and rapid mathematical computation are now largely fused in the information age and together serve as the springboard into the Market-State. As such, "stateless actors" - or, more specifically, networks of individuals operating as an entity under the "shield of a common enterprise" - largely control.

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