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How are international insolvency norms and legal standards created? What role do the politics of legitimation play?

The Politics of Legitimacy

Scholars Bruce Carruthers and Terry Halliday examine the process by which legal technologies (in this case, diagnostic criteria and legal "scripts") become legitimate. Since no one organization, agency or state is in the position to define international insolvency law by fiat, persuasion is key. Actors have a better chance of persuading others when their positions have a high level of legitimacy.

Legitimacy is not simply a characteristic that an actor either has or does not have. Rather, legitimacy is an asset–a type of social capital that actors must work to gain and keep. It is a powerful tool, giving actors leverage in negotiation and consensus building.

In short, we must understand the politics of legitimation in order to global legal norms are developed.

Justifying Legitimacy

But, how are the politics of legitimation played out? In other words, how does an organization or agency gain legitimacy? What are the bases and strategies that actors use to create legitimacy for themselves and their ideas? Actors must justify their legitimacy. They need a warrant for legitimacy. There are three steps for winning the battle of ideas when creating global legal norms. See Figure 1.

Figure 1: Logic of Legitimacy

As Figure 1 illustrates, competition to create global legal norms begins two "levels" below explicit negotiation. We need to understand how legitimacy is created in order to understand the leverage an actor has in a negotiation setting. And, in order to understand how legitimacy is created, we need to understand how actors justify (or create warrants for) their claims to legitimacy.

What Is Involved in Creating Legitimacy?

What is involved in creating and maintaining legitimacy? The process is complex. Many things influence an actor’s success when maneuvering for legitimacy:

• Actors draw on different bases for legitimacy. Actors generally have an "affinity" for some bases rather than others. That is, some bases of legitimacy seem to come "naturally" to an actor. Other bases have to be created.
• Actors use different legitimating techniques to demonstrate the strength or value of their ideas or position,
• Actors must deal with constraints in using a technique (such as organizational form, mission or incapacity),
• Actors must appeal to multiple constituencies that may recognize or prefer one basis of legitimacy over another. An actor will face certain challenges if the bases to which they have an affinity are different than the bases that important constituencies prefer.
• Actors must negotiate the hazards of juggling multiple legitimating techniques that potentially undermine each other.

Bottom Line

So, even though legitimacy is crucial when negotiating global law, actors cannot assume the legitimacy of their ideas or positions. Rather, legitimacy is a resource that must be fought for. Since there are different ways to justify claims to legitimacy, the process is very complex.

Other Keytexts from this source

Disseminating Tools to Help National Insolvency Regimes

How the Asian Development Bank Created Insolvency Law

How the European Bank for Reconstruction and Development Created Insolvency Law

How the International Monetary Fund Created Insolvency Law

How the World Bank Created Insolvency Law

How to Create Legitimacy in Global Lawmaking