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5
THE GLOBALIZATION OF LAW
SABINO CASSESE*
I.
SOME MOTIVATING QUESTIONS: THE CIRCULATION AND
SPREAD OF LEGAL INSTITUTIONS
Can democracy be exported to Iraq by means of military
occupation? Can the President of the United States ask Russia
to respect democracy, that is, “a rule of law and protection of
minorities, a free press and a viable political opposition”?1
Can the World Trade Organization (WTO) require that the
public administration of Malaysia openly participate in the
tendering procedures for the awarding of government con-
tracts? Can all nations be asked to respect a single, universal
catalogue of human rights? Can the United States require that
domestic consultation procedures be adopted by international
organizations? Can free trade liberalization be used to induce
China to introduce the rule of law into its domestic legal sys-
tem?
These are all controversial issues, not to mention com-
plex, ambigious, and multifaceted questions. In this Article, I
endeavor to examine and disentangle each of them and to for-
mulate some additional questions. I begin by explaining each
of the questions in turn.
A. Can Democracy Be Exported to Iraq by Military Force?
The achievements of occupation forces in Germany and
Japan after World War II, as well as the more recent achieve-
ments of the UN-authorized, multinational stabilization force
in Bosnia and Herzegovina could be repeated. Foreign mili-
tary forces imported democracy into those three countries.
Nonetheless, our common understading of democracy is that
of a complex set of institutions which have developed over
time in the Western world, first in the United States and then
elsewhere. Is it right to consider these institutions as superior
* Vice President, Constitutional Court of Italy; Professor of Administra-
tive Law, University of Roma-La Sapienza.
1. Press Release, Office of the Press Secretary, President and Preside