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Creating Global Law Involves Fights for Legitimacy
The politics of legitimation is an important part of developing global insolvency norms. Organizations use a range of strategies to create legitimacy.
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.
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:
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.
Data and Methods:
Based on interviews with actors involved in the development of international insolvency law.
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Halliday, Terence C., and Bruce G. Carruthers. Forthcoming. Globalization, Law, Markets. Chicago: University of Chicago Press. Ch. 3.
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