Backer eu univdebateppt4-2012


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On the constitution of transnational governance; comparative law and transnational legal pluralism in comparative corporate law, comparative constitutional law, administrative Law

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Backer eu univdebateppt4-2012

  1. 1. ‘The Artist’: Legality and Legitimacy in the Savage Lands of Governance************************************************* Larry Catá Backer W. Richard and Mary Eshelman Faculty Scholar and Professor of Law Professor of International Affairs Pennsylvania State University 239 Lewis Katz Building University Park, PA 16802 1-814-863-3640
  2. 2. ‘The Artist’:Legality and Legitimacy in the Savage Lands of Governance From „The Artist”:
  3. 3. Framing ‘The Artist’ From Inside• The movie acquires wholly distinct meaning depending on perspective • From inside (George Valentin): • Anachronistic but loving homage to a time and place that is gone but the shadow of which reminds of similar passings now • A lesson in the way the privileging of one element changes the way in which a system understands itself • The tension between innovation, technology and instrumentalism in controlling environments of privilege and legitimacy • Essence—how do we understand what movies are about in changing times but in a way that retains the essence of how we understand movies • . Looking from inside and seeking to preserve the existing forms and ideologies intact—just improving them in accordance with their terms
  4. 4. Framing ‘The Artist’ From Outside • From Outside In (“Peppy Miller”) • How internalization of an ideology (of movie production and movie ‘values’) clouds visions of change • How does an actor understand his role in the face of change—does he merely decide that he is no longer part (“I cannot speak and thus cannot make act”) or that he must change his own relationship to a system whose production values have changed (“I cannot speak but I can dance”). • Looking to incorporate the new within the old ideology but with a fidelity to the core forms of the existing ideology—not change but reform with a willingness to discipline the new in the service of the old structural presumptions • From Farther Outside Around (The Movie Mogul “Al Zimmer”) • How can I make money with the tools I have; will have? • What is a movie and its relationship to its elements (form follows function) • The screen itself and what the viewer sees • The dialogue • The action • Ideology is what I use to induce investors to commit to what I am doing
  5. 5. Peer’s excellent presentation provides certain parallels to ‘The Artist.’The similarities between the two struck me and form the basis of thisengagement: --describes a word in which there is tension between ideology, form and function --seeks to reorder the relationship between the components of that order with both fidelity to ancient ideology and acknowledgement of new realitiesBut it is not clear to me whether he is seeing the changes in governance withthe eyes of George Valentin or Peppy Miller.I will consider Peer’s view from the perspective of the Movie Mogul, AlZimmer: Critical consideration of the way in which the ideology of the state and its relationship to the way in which we see the world and the possibilities for comparison, and for governance beyond the state.
  6. 6. Why Compare?• The unsatisfying journey of comparison • Technical structural engineering project: • Obsession with similarities and differences • Historical project: Evolution of legal orders • Social engineering project: Tolerance and humility But ---instrumentalism problematic ---Little cultural taste for the project among students ---small incentives within academic cultures in the Americas
  7. 7. Transnational Legal Pluralism in Every Pot• But the stale debates of comparative law ought to be swept away in the face of “emerging elements of normativity and institutional order.” (188)• Transnational legal pluralism (Calliess and Zumbansen) changes everything: • Hybridity • Intermeshing • Polycentricity • Regulatory contracts (Backer) and state action by contract (SWF)• Sooooooooo. . . . Comparison, if that is what we want to do, has become more complex. • How does comparison meet this challenge???
  8. 8. A New World Order for Comparison• Can the methodologies of comparative law be applied in the face of the realities of transnational legal pluralism? • Comparison is now three dimensional • Comparison is between a-symmetrically arranged systems• Difficulties • No grounding for comparison (against what are we comparing and from which focal point)? • How do we identify the objects of comparison where defining boundaries are themselves contested • Jurisdictional borders are themselves disappearing• But the old objectives remain: • Legality • Legitimacy • Toolkit
  9. 9. On ward Transnational Soldiers• Despite challenges will test a revivified comparison in four areas • Comparative corporate law • Human rights law • Comparative constitutional law • Comparative administrative law
  10. 10. Comparative Corporate Law• To the traditional competing conceptual approaches (corporation as institution or as property in the hands of shareholders/stakeholders) are added• Fractures of centers of norm making and enforcement powers • Deterritorialization forces the issue of legitimacy of norm production • Theorize legality for that purpose• Focus • Look to unmask forces of change in firm and market regulation • Comparison between law and “other spheres of culture” (194)• Aaaaaahhhhh • But norms still tied to both law and the state (semi-autonomous= • Still room to compare between law and norm systems within corporate law as well as among law and norm systems (inside- outside comparison)
  11. 11. Human Rights and Anthropology• Interactions here is three way • Law • International public norms • Private norm systems• Inherent is the problem that there is little law and everything is highly contested; but where is transnational legal pluralism?• New Legal Realism • Methodology and politics • Incorporating and socializing the norm within “law”• Ethnography of Human Rights • Political empiricism • Turning human rights into a science of management; the social sciences in the service of behavioral goals.
  12. 12. Comparative Constitutionalism• Is constitutional comparison still stuck in—or on—the state? • Do the predilections of distinct ethnoi-demoi still matter (despite Kosovo and the German Maastricht case?).• To the rescue: • Transnational legal pluralism • Constitutionalism from social norm creation and contests among social actors • Use for legal anthropology (204)• Yet some timidity in the face of the state (200) • “Transnational constitutionalism radically challenges but does not negate the distinction between the domestic and the international legal order” (200). Doesn’t it? • Why look for evidence in judicial opinions (inside) rather than in the constituting acts of state-organization creation (outside)? (201-202)• Better—private governance challenging constitutionalism by challenging the power monopoly of the state (203) • But shouldn’t this translate to the power of constitutionalism to provide a legitimate basis for the constitution of non-state communities: Constitutionalism without either state opt constitution!
  13. 13. Administrative Law• The object is a critique of “Global Law” efforts in this case in the form of the Global Administrative Law project (GAL)• Problem • GAL seeks to posit global law with no ties to local roots • Instrumentalism and top down positive law making belies reality• Example • Comparison of Anglo-US and German approaches to administrative law and the technocratic state• Result • The project is nonsensical • Bit where is transnational legal pluralism; here it would substantially enrich the mix. • Comparison between Anglo-US/Germany/Apple, Inc.!
  14. 14. Zumbansen as George Valentin• Is this new project comparison at all? • basing new approaches on old frameworks may not work • Want to avoid the old fight between comparative and international law• Is it still useful to worry about legality? • The concept itself may be anachronistic in the face of transnational legal pluralism • Avoid falling back to objective—bring norms into law
  15. 15. Zumbansen as Peppy MillerTransnational Legal Pluralism is its own space (190)The law-norm distinction is no longer useful except to those committed to thepreservation of law-state ideologyThree dimensional comparison (between law-norm systems and within each)Using empiricism as a political tool (Backer 2007); but is the empirical neutral?
  16. 16. Zumbansen as the Movie Mogul, Al Zimmer?Norm systems are fully autonomous of the state; not merely other spheres ofculture but governance/government in its own rightTo worry about their relationship to law or to press the issue of law-normconvergence is beside the pointTheorize new governance centers on their own terms and let the new fieldboundaries be formed where they may
  17. 17. Perhaps We Ought to be the Dog--Uggie• At the end of the day it is faith in the soundness of the enterprise, whatever its terms that matters.• Is there a greater space for transnational legal pluralism in• Human rights and administrative law? • We might be able to pull this enterprise from the fire as well • Critical engagement— • Are we still stuck in the state? A point well made in the discussion of constitutionalism
  18. 18. Thank You!!!