BOOK REVIEW
Rafael Domingo, The New Global Law (Cambridge: Cambridge
University Press, 2010).
Pedro J. Martnez-Fraga*
In his 2010 work entitled The New Global Law, Professor Rafael Do-
mingo1 asserts that international law, the science concerned with regulat-
ing and organizing the legal relationships among sovereign states, cannot
serve to address the challenges of an integrated global community. The
argument proposes that classical international law, true to its etymology
suggesting a legal construct between and among nations, is inadequate
for addressing transnational needs such as issues that are stateless in na-
ture, since they affect humanity as a whole. Climate control, disease,
abuse of power, infant mortality, vertical and horizontal nuclear prolifera-
tion, and corruption, to reference but a handful, are problems endemic to
humanity and therefore transcultural and non-territorial. Professor Do-
mingo argues that such challenges compel the creation and implementa-
tion of a global science of law that will serve as the law of humanity
rather than the law of states.
Professor Domingo has identified transnational problems that cannot
be addressed or redressed by the law of nations, but instead only pursu-
ant to the application of a new global law or legal order, as a point of de-
parture. In doing so, Professor Domingo cannot avoid confronting the doc-
trinal challenge of crafting a new normative foundation different and dis-
tinct from the law of nations, and the law among and between nations,
while simultaneously ensuring that the traditional normative rubric of
these systems remains preserved and harmonized with the new global
law. The task that Professor Domingo has endeavoured to undertake is
daunting indeed. A global law that functions in pari materia with munici-
pal and international law also requires an equally universal and harmo-
* Pedro J Martinez-Fraga received his BA from St Johns College in Annapolis (Highest
Honours) in 1984, a JD from Columbia University School of Law (Harlan Fiske Stone
Scholar) in 1987, and has Licentiate (JD equivalent), Magister, and DEA degrees from
the Universidad Complutense de Madrid. He is the Coordinator of International Dis-
pute Resolution for Latin America and the state of Florida for the law firm of DLA
Piper. He is an Adjunct Professor of Law at the University of Miami School of Law, a
Visiting Professor at the University of Navarra School of Law in Pamplona, Spain and
an Honorary Professor of Law of the Universidad de San Ignacio de Loyola in Lima,
Peru.
Pedro J Martnez-Fraga 2011
Citation: (2011) 56:3 McGill LJ 767 ~ Rfrence: (2011) 56 : 3 RD McGill 767
1 Rafael Domingo is a professor at the University of Navarra in Pamplona, Spain.
768 (2011) 56:3 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
nizing normative rubric. The author believes to have tapped into this
paradigm by focusing on the element of human dignity common to every
individual and therefore to all global citizens. A law of humanity must
find a normative foundation in what is most intrinsically human, which in
the authors view appears to be the condition of dignity.
However, even within the narrow confines and limitations of The New
Global Law, greater sustained analysis is required concerning the pro-
foundly transcultural definition of dignity2 versus collective social vir-
tues that do not and cannot aspire to rest within the concept of human in-
dividuality. Professor Domingo has certainly opened the door for doctrinal
development of the normative premises of the bold new global law, but
he hardly crosses his own threshold from even the most modest analytical
perspective. The jurisprudence and conceptual workings of a natural law
resurgence3 merit more than just surface reference. Despite the ostensibly
logical effect of this resurgence, Professor Domingos grounding of the new
global law may require another book or series of books.
In the sciences, as well as philosophy, and history, the world often
misunderstands its most pressing and important issues, while neglecting
others entirely. Indeed, Wilfred Jenks identified two concerns that have
been misunderstood and altogether neglected:
(1) how far the law of nations will remain a traditional framework
for the mutual relations of states as the basic units of political or-
ganization in a world in which states continue to guard jealously
their sovereign independence, a law valued and respected as a nec-
essary discipline for the mutual relations of states, but with little ob-
vious direct impact on everyday life perceptible to the ordinary citi-
zen; or (2) how effectively it will become a common law of mankind
in a welfare world beyond the welfare state, fulfilling in a world
community of peace and freedom a part comparable to that of a ma-
ture legal system in an advanced civilization.4
Writing along similar but distinct conceptual and phenomenological lines,
Philip Jessup observed the following:
No system of law springs into existence full-panoplied. All legal sys-
tems from the most primitive to the most advanced have their back-
grounds and roots in the society in which they govern. It is therefore
not enough for the future of the international society to say that we
must have a rule governing the use of atomic bonds and other weap-
ons of mass destruction. It is not enough merely to have a law mak-
2 Rafael Domingo, The New Global Law (New York: Cambridge University Press, 2010)
at 131-36.
3 Ibid at 49.
4 C Wilfred Jenks, Social Justice in the Law of Nations: The ILO Impact After Fifty Years
(London: Oxford University Press, 1970) at 1.
BOOK REVIEW 769
ing war illegal. Such rules, even if backed by an adequate form of or-
ganization or government, would fail to create a well-ordered inter-
national society, the existence of which is a prerequisite to the suc-
cessful functioning of any legal system. If there be no adequate body
of law governing the solution of the conflicts which are inherent in
any human relations, frictions and tensions will develop to a point
which will bring about breaches of the primary rules about weapons
and wars; even in the most highly developed societies, underlying
inequities and resulting strains produce riots, revolutions, and civil
wars.5
These propositions have also been the victims of both misunderstanding
and neglect.
Professor Rafael Domingo, however, has blessed us with a work that
although shrouded in a mantel of modesty and labelled a mere point of
departureplaces in sharp relief the correct understanding and urgent
sense of attention that must be accorded to the origin of a systematic re-
sponse to the issues that Professors Jenks and Jessup have so aptly and
concisely identified.
Secure in the conviction that neither a non-political nor a geopolitical
revolution has reconfigured and transformed all societies, Professor Do-
mingo boldly asserts that when confronted with the reality of globaliza-
tion giving rise to an international society, Perhaps this is the most sali-
ent difference from the past: the hectic pace of our social relations … at
times makes it difficult to adapt to the demands of justice.6 Developing
this concept further, Professor Domingo observes, Our society is the
product of a complex mosaic of political, economic, and cultural relation-
ships, the intricacies of which are hardly recognizable merely by applying
the social norms of yesteryear.7
By juxtaposing the global society of the twenty-first century and its in-
cidental challenges against a rubric of international law that is both
procedurally and substantively ill-equipped to provide a holistic juridical
response to the history-altering exigencies enumerated above, Professor
Domingo underscores the friction and tensions that have spawned his
definition of a global law. Mere recourse to international law is no longer
enough. Only a transnational paradigm, according to Professor Domingo,
would even begin to prepare a global society for the challenges that al-
ready assault it.
5 Philip C Jessup, A Modern Law of Nations: An Introduction (New York: The MacMillan
Company, 1958) at 1-2.
6 Supra note 2 at xiii.
7 Ibid.
770 (2011) 56:3 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
The consequences of a transnational law cannot be avoided, however,
and Professor Domingo does not shy from rising to the challenge and res-
cuing the proverbial gauntlet. Accordingly, his point of departure, as the
totality of this work is described, traces the contours of the ius gentium
from its Roman origins and the concepts rich manifold nature during the
middle ages, through to the development of the ius gentium al ius inter
gentes and a ius gentium Europaeum. This exercise is not an irrelevant
testament to extraordinary erudition and precise scholarship, nor is it an
allocutio to the application of ancient doctrinal rubrics of a twenty-first
century framework. To the contrary, Professor Domingo finds it necessary
to delineate and highlight the configuration of normative tenets that ren-
dered international law, or a ius gentium Europaeum, a viable historical
construct by way of an exercise in phenomenology that may bring into re-
lief the very unique manner in which a transnational global law is deeply
steeped, and finds resonance, in aspects of the most fundamentally em-
bedded principles of the science of the law.
The conceptual challenge that Professor Domingo raises for the
reader, does not ignore the precepts of law and territoriality that govern
municipal and international law to this day. Not surprisingly, in the con-
text of this ambitious work, Professor Domingo courageously proposes the
following:
The principle of territoriality is elementary, like a persons sense of
touch. Even though it is easily surpassed in importance by sight and
hearing, it remains useful and sometimes indispensable. Territorial-
ity is to the law what occupation is to property, its first link. How-
ever, it is not the only nor most important one. The problem with the
state is that its survival is conditioned on territory. Thus, interna-
tional law, being a law between states, was staked first on the totali-
tarian hegemony of the principle of territoriality, thus weakening
the principle of the person.8
In this same vein, Professor Domingo relentlessly asserts that
sovereignty and universality are irreconcilable concepts, as are uni-
versality and totality. Globalization is universal. That is not true of
the nationalinternational pairing, which has governed modernity
and is fighting to survive. …Universality reclaims the idea of the
person as its centerpiece and then immediately turns to the notion of
people, once more, publicum ex privato. 9
Unlike Ptolemaic astronomy, which purports to save the appear-
ances by grafting epicycle onto epicycle, Professor Domingo demonstrates
that his global law is a whole that affects all of its constituent parts
8 Ibid at 75.
9 Ibid at 71 [emphasis added].
BOOK REVIEW 771
namely, the concepts of territoriality, state, sovereignty, and person. The
issue is not one of reconfiguring existing precepts so as to render viable a
new concept of transnational law, but rather the compelling and neces-
sary inferences that must be extracted from a normative order that tran-
scends the mere governance of relationships between and within states.
Thus, the author is impelled to demonstrate two propositions. First, a
global law finds its genesis in the very language, nomenclature, and ju-
ridical concepts that for centuries capably addressed the concerns of an
international communityalbeit at the expense of the concepts of per-
son and publicum. Second, while notions of statehood, sovereignty, and
territoriality rightfully command a domain in directing the interworkings
of nations, what were once appropriate historical pillars of international
law are now but flawed premises of a global and transnational legal order
that both defines and is defined by the afflictions of humanity instead of
states, persons, and territory.
The difficult, and almost cruel, question cannot be ignored: To what
extent is Professor Domingos point of departure towards a global law
more than a finely woven tapestry of historical exegeses framed by theo-
retical musings? The author answers the question without ever having
posed it; as though it pervaded every page of his work.
It would be a blunder to pretend that the simple transposition of na-
tional legal norms and precepts onto a global juridical order would invite
the creation of a global state akin to a Kelsenian paradigm that identifies
both order and state. To this end, Professor Domingo notes:
The excessive concentration of power accumulated by a hypothetical
State of Humanity would turn this conjecture into a dangerous and
undesirable reality. On the other hand, it is possible to transfer some
key principles of federalism, as well as of the EU [European Union],
a supranational sui generis institution that has been able to combine
various existing jurisdictional levels well.10
He further adds that a proposed global order shall commence by establish-
ing a unum corpus subsuming municipal legal rubrics where, unlike in-
ternational law, even superstates that are amenable to global law such as
the European Union, shall have no recourse but to integrate it into their
own ordo iuris. Municipal law would be rendered incomplete and wholly
inadequate were it to ignore the strictures of global law.
The efficacy and practical application of Professor Domingos proposi-
tions are more than intelligent theoretical chimeras. This point is accen-
tuated in his fleeting but incisive reference to international commercial
arbitration and lex mercatoria. While the former is viewed as serving as a
10 Ibid at 122 [footnotes omitted].
772 (2011) 56:3 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
temporary bridge until such time as transnational courts of civil proce-
dure attendant to global law may come into being, it is abundantly clear
in Professor Domingos analysis of the subject that this historically neces-
sary construct is far from a responsive development capable of serving
humanity with a single voice that addresses global crises and concerns. As
for lex mercatoria, although economic globalization has certainly given
rise to a transnational lex mercatoria,11 the breadth and depth of this
development is insufficient; lex mercatoria will never be fully capable of
shedding the primacy of its mercantile and commercial nature. Neither
the international arbitration constructs, nor the evolution, formation, and
transformation of lex mercatoria, can serve as foundations akin to the
global law that Professor Domingo espouses.
While this version of global law finds a normative voice in the concept
of the person, Professor Domingos analysis is not and does not purport to
be a blueprint that may be readily applied to humanity. Viewed through
this lens, it is clear that Professor Domingos global law is far from a me-
chanical formula that can be easily implemented once grasped by the in-
ternational community. However, by reinvigorating the possibility of uni-
versality, rooted in the particularity of the notion of person and in the to-
tality of publicum, the reader is offered a concrete fulcrum on which to
rest the lever that is to aid in the construction of a global law consistent
with cultural and economic globalization, as well as with the transna-
tional catastrophes now scarcely able to be identified much less ad-
dressed.
Amending the punctuation of Professor Domingos title transforms it
into a rather profound question: What is Global Law?12 After savouring
the text, visiting and revisiting it, it becomes rather apparent that this ti-
tle is anything but whimsical. Quite to the contrary, constructing the title
as a question is a Socratic challenge to the reader, consisting of two very
distinct components. First, the mere formal aspect of the question incites
the need to resort to the Socratic principle of courage, because it is only
when armed with Socratic courage that an endeavour initiated by a ques-
tion of any magnitude can be undertaken in a spirit of complete commit-
ment. To begin the entire analysis with a question is to warn the reader
that good faith and total devotion to the cause may never lead to the man-
tel of certainty that accompanies a definitive answer. Second, the title and
its text speak to the teaching of the ugliest man in Athens (a traditional
description of Socrates himself) in that only an examined life merits liv-
11 Ibid ([t]hrough commercial arbitration, a new lex mercatoria has been shapedone
applicable to international commerce at 112).
12 Indeed, this was the original title of the Spanish version of this book: Rafael Domingo,
Que es el Derecho Global?, 2d ed (Pamplona, Spain: Thomson-Aranzadi, 2008).
BOOK REVIEW 773
ing.13 Both principles are directly applicable to Professor Domingos text.
Endeavouring to develop the fundamentals of a global law, in part based
upon the person and the collective publicum as a type of normativity, re-
quires both reader and author to brace themselves for a daunting and im-
perative task in order to perpetuate a civilized international community.
When the objective is for the most expedient resolution possible, the prin-
ciple of uncertainty that accompanies every question may only be con-
fronted pursuant to a summoning of courage. Yet, as the solution is
grounded in the person, so too is the need for a solution and the problems
generating this need, as these are the result of humanitys own workings
and mishaps. Although scantly addressed in Professor Domingos book,
the crises that a global law must address all have one stark common de-
nominator. They are all the consequences of human affairs, of mens own
actions, omissions, and shortcomings. It is here that the Socratic exam-
ined life finds its relevance.14
We have now been provided with a point of departure towards a new
global law. Do we have any other choice but to undertake the challenge,
despite its endemic uncertainty and taxing demands?
13 Socratess concept of the examined life is grounded in the principle that wisdom is
found in the questioning of things and the Socratic method fundamentally questions
truth. For a good summary of the concept of an examined life, see Richard Kraut, The
Examined Life in Sara Ahbel-Rappe & Rachana Kamtekar, eds, A Companion to Soc-
rates (West Sussex, UK: Wiley-Blackwell, 2009) 228.
14 Ibid.
