La fonction du droit dans une économie globalisée

The main challenge facing any explanation of the function of law in a globalised economy is to make sense of the idea that the law (and accordingly the State) can get an ambitious role in regulating free exchanges. Since neo-classical economy has been built on the dichotomy between facts and values, positive and normative economics, the gap between the problems of allocations of ressources (question of facts) and those of redistribution of ressources (question of values) seems irreductible. So, in this context, what can we expect from international economic law? A pure role of instrument to be used for expanding international trade? We all know that some legal rules and a minimal State are, at the very least, a necessity for the development of the market economy: to fix property rights, to organize some judicial procedures, to implement the principle pacta sunt servanda, etc. But is it all of it? Law purports to guide action, to give us reasons for action. But an action is not a pure fact and is somewhat more complicated to analyse. In particular, an action is interrelated to other actions and to the desires of other persons. And, more than that, an action doesn't happen into a physical time but inside a duration. Hence, my crucial claim in this paper is the following: the practical difference that the function of law can make in a globalised society - that is a function of redistributive justice - requires us to take into account that the reasonable man of law is not the rational economic man, most notably because the standard homo oeconomicus behaves in a quantitative time while the reasonable man lives and follows practical norms in the duration of intersubjectivities. © De Boeck Supérieur. Tous droits réservés pour tous pays.