The Recursivity of Law: Global Norm Making and National Lawmaking in the Globalization of Corporate Insolvency Regimes

Abstract

For the past 15 years an enormous enterprise of global norm making and related national lawmaking has been underway in many areas of global commerce. This article shows that leading global institutions, such as the World Bank, IMF, and United Nations, are building an international financial architecture with law-including corporate bankruptcy law-as its foundation. Building on research on international institutions and three national cases (China, Indonesia, Korea), the authors propose a new framework for legal change in a global context-the recursivity of law. They argue that the globalization of bankruptcy law has proceeded through three cycles: (1) at the national level through recursive cycles of lawmaking, (2) at the global level through iterative cycles of norm making, and (3) at the nexus of the two. Recursive cycles are driven by driven by four mechanisms-the indeterminacy of law, contradictions, diagnostic struggles, and actor mismatch. Thus the recursivity of law both revives and expands the sociological theory of legal change and offers a basis for an integrated theory of globalization and law.Sociological studies of globalization largely neglect law. Whereas research has been extensive in such global arenas as finance, business, culture, religion, and population, it has been almost entirely absent for law. This

Legal Professionals and Transnational Law-Making: A Case of Distributed Agency

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Knowledge mandates in the state–profession dynamic: A study of the British insolvency profession

“…Carruthers and Halliday (2006) and Halliday and Carruthers (2007) suggest that the globalization of law is dependent upon the role of intermediaries and local professionals. They suggest that the politics of implementation -the gap between formal enacted laws and their everyday application by professionals -occur at a truly local level (Carruthers and Halliday, 2006, p532-534).…”

Disquieting uncertainty. Three glimpses into the future

“…As has been noted repeatedly in the literature on economic globalization [76,83], this development was to some extent sanctioned, if not initiated, by the political system itself. Yet, over time it spawned a distinct type and layer of order that increasingly defies political control (see [27,86]) and/ or turns what used to be seen as the central agents of policymaking into policy takers [12] whose Bscripts^for action (in such fields as norm making, agenda-setting, even policy formulation and implementation) are crafted by a diffuse but authoritative Bworld polity^ [60] comprising global (Bworldr ather than Binternational^; see [49]) governance organizations, law courts, corporations and business associations, NGOs, think tanks, advocacy networks, professional associations, expert epistemic communities, social movements, and others (see, e.g., [10,17,24,38]). In short, many of the policies perceived and portrayed by national governments as resulting from their sovereign right to govern without interference from the outside must in fact be viewed as being exogenously driven, a condition that applies even to the most powerful states.…”