Filling Power Vacuums in the New Global Legal Order

IntroductionI love the title of this Symposium because I've been thinking a lot about power in a number of different contexts. This Symposium gives me the chance to apply some of that thinking, at least in a preliminary way, to thinking about the globalization of law. I've obviously been out of the pure legal world for a long time, but in government, I sat across the table from Harold Koh, the legal advisor of the Department of State, at Secretary of State Hillary Clinton's meeting every morning. Of course, Harold and I had sat on many panels together, and our careers have been intertwined, but I got a chance to see firsthand the way law shapes politics and constrains power. I was very pleased, then, to start thinking about how law operates in a vacuum, or in the relatively open spaces of a globalized world.Let me start with a couple of reflections on power, and the nature of power.1 Then, I will talk about how I think those conceptions of power apply to law.2 I will end by talking a little bit about how that ap- plies to lawyering.3I. Power as Ladders and Webs: Power Over and Power WithI think a lot about power in terms of the vertical and horizontal worlds, to start with the most abstract ideas. One way to think about this concretely is the ladder and the web.4 If you think about power in terms of a ladder, you want to be at the top. It's a vertical ascent. If you think about power in terms of a web, you want to be at the center. There is no top. Power in a web comes from the center, outward. To be at the top of a ladder would be to be on the periphery of a web. To be at the center of a web would be to be midpoint on the ladder.This is a very different way of thinking about power. The examples come from Professor Carol Gilligan's book from the early 1980s, In a Different Voice.5 She actually wrote the book about how adolescent boys and girls think about relationships in terms of ladders and webs. I'm not sure whether the gender dimension makes a difference. For my purposes, they are two equally valid ways of thinking about power and both, certainly, operate in the world today.The next way to think about ladders and webs is to think of the ladder as "power over." If you're at the top of a ladder, you have power over the people below you. You can tell them what to do. It's a hierar- chy. If you have power in a web-if you're at the center of a web-you don't have power over anyone. It's horizontal. You can't make anyone do anything, but you have "power with" them. It's the distinction be- tween power over and power with. If you're at the center of a web, you can mobilize people to do all sorts of things. You have all the connec- tions you need to bring people together to make things happen. But it is a different kind of power, and you have to exercise it differently.6 I first heard this distinction from Professor Lani Guinier, my former col- league at Harvard. I've read it in many different places, but I remember her talking about the distinction of power over versus power with fif- teen years ago.7For our purposes today, I want to suggest that these are two ways to think about power in the national state and power in the global econ- omy: power over and power with, or ladders and webs. In the national state, it's much more of a hierarchy, at least formally. We have the fed- eral government, we have state governments. We think about law and politics in hierarchical terms. Now, within the federal government, we have checks and balances, such that we have no one institution that controls all the others, but broadly, it's a hierarchy. In the global econ- omy, it is much more of a web. There are certainly elements of hierar- chy such as the United Nations system or other sources of international law.8 By and large, however, when you think about power in diplomacy, or power in any area that is not very strictly regulated, you're talking about a horizontal system of multiple sovereigns in which it's very im- portant to be central. …