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How to Create Legitimacy in Global Lawmaking
Authors describe different strategies actors use to create legitimacy in formulating global norms
Creating global insolvency law depends heavily on the ways that actors justify their claims to legitimacy. How are these warrants for legitimacy created?
Creating Warrants in the Politics of Legitimation
What warrant or justification do actors draw on in order to create legitimacy for a legal script or norm? Sociologists Bruce Carruthers and Terry Halliday identify two types of warrants for legitimacy:
External warrants for legitimacy are the sources of support or leverage a legal script that come from the actors or the process of creating global norms.
Representativeness and Effectiveness Criteria
Actors and institutions work to be able to claim that a script represents the interests of various constituencies or stakeholders. Warrants of representativeness may be based on such things as:
So, for example, scripts that are seen to have been created through the cooperative input from a broad range of experts and that have been derived from practices that "work" have greater warrant for legitimacy.
Spurious External Warrant: Connecting Norms to Sanctions
On its face, connecting a legal script to positive and negative sanctions should provide a powerful external warrant. For example, if an IFI can state or imply that failure to adhere to a norm will jeopardize the likelihood of future funding, then there is strong external motivation to adhere to a script.
However, connecting sanctions to a norm or script actually implies a deficit in legitimation. The script Trying to enforce conformity to a script or norm through the use of sanctions can actually backfire and de-legitimate the norm. For instance, an IFI that seeks to force a legal reform via the threat of withholding funds can create resentment among a country’s leadership. Whether or not a particular legal norm would help or be practical in a particular country or legal system may become (from the perspective of a country’s leaders) beside the point. The bare fact that the norm is forced upon a country gives the appearance of a brute exercise of power, not an opportunity for reform.
Internal warrants for legitimation are features of the script itself. There are two types of internal warrants: procedures of script development and rhetorical characteristics of the scripts.
Procedures of Norm Development
A procedural warrant rests on the belief that all parties involved in the deliberative process were treated fairly and according to the rules. Was the input of all actors treated in the same way? What is important in this type of warrant is that participants believe it was fair. Whether the input from all parties is, in fact, treated according to the same rules is another question altogether.
In the case of the formation of global insolvency norms, procedural fairness may have been more a matter of appearance than substance. For instance, while leading organizations and institutions (like the ABF, EBRD, IMF and World Bank) solicited input from a wide range of stakeholders, the deliberations were largely invisible to outsiders.
The Language of Normative Scripts
Warrants for legitimation can be built directly into legal scripts. In other words, the rhetorical structure of the text can provide different warrants for the legitimacy. There are two rhetorical dimensions involved in the formation of global insolvency norms
Dimension 1: Hierarchy of Abstractness or Specificity
The authors identify four levels of abstraction in which global insolvency norms are presented:
Trade-offs for Pitching Norms at Different Levels
There trade offs in pitching proposals at one level versus another. On the one hand, the more abstract the language of the norm, the more broadly it applies. For instance, when a norm is couched in terms of very broad theories of markets, or in terms of universal values, it is more difficult for actors to casually dismiss them. On the other hand, more abstract norms are less well adapted to guide concrete behavior.
Norms stated at lower levels of abstraction may provide actors with more concrete guides for action, but are also open to the criticism that they are not appropriate in a particular situation. For instance, actors within a particular country might argue that a specific prescription or statutes are not applicable in their case because of the cultural or social situation.
So, while a norm stated in highly abstract language may create a warrant for broad-based legitimacy, it is less likely to provide a warrant for the legitimacy of specific guidelines or regulations. Highly specific language provides a warrant for concrete recommendations but provides less warrant for legitimacy among diverse constituencies.
Pace of Change and Intensity of Interests
Additionally, the authors say, the language in which the norms are framed is related to such things as the pace of change and the intensity of the interests involved. For instance, in quickly changing environments where powerful economic interests are involved, norms are more likely to be pitched at an abstract level. In contrast, in situations where the pace of change is slower and where powerful interests are not involved, norms can be couched at a lower level of abstraction, often in terms of simple regulatory demands
Dimension 2: Relative Balance of Prescriptive Versus Diagnostic Language
A norm may be stated in prescriptive language (that is, stating what should be done) or diagnostic language (determining what the problem is). The prescriptive versus diagnostic dimension of a script’s language also provides different kinds of warrants for legitimacy.
Trade-offs for Prescriptive Language
A norm stated in prescriptive language (for example, countries should take this or that course of action) may provide legitimation for a concrete course of action, but assumes that the actors agree on what the problem is. If actors disagree on the nature or definition of the underlying problem then they have a greater capacity to disagree on the appropriate course of action. In short, legitimacy based on a prescriptive language already presupposes a more fundamental warrant—a warrant based in diagnostic language.
Trade-offs for Diagnostic Language
Norms framed in diagnostic language warrant legitimacy at a more fundamental level. Diagnostic language warrants agreement not only with regard to the nature of the problem, but also with regard to the standards of assessment (that is, how the problem should be measured). Diagnosis always implies a standard, and diagnostic criteria may gain a greater force when based upon (supposedly) social scientific principles. When this occurs, it will seem imperative to adhere to specific prescriptions. Countries that do not meet these assessment/diagnostic criteria may be "shamed" or penalized for not "measuring up."
Examples of norms framed in diagnostic language are IFI ratings of countries with respect to specific criteria (comparison to a standard) and rankings of countries based on how well they meet the standard (compare countries to each other).
Legitimation of global norms is central to the process of formulating global insolvency standards. However, the process of legitimation of competing norms and procedures is highly political and depends on actors’ ability to establish warrants for legitimacy. In order to understand an actor's influence at the negotiating table, it is necessary to the strategies, methods and politics whereby actors justify their legitimacy.
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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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