‘The Artist’:Legality and Legitimacy in the Savage Lands of

Governance*************************************************

Larry Catá BackerW. Richard and Mary Eshelman Faculty Scholar and Professor of Law

Professor of International AffairsPennsylvania State University

239 Lewis Katz BuildingUniversity Park, PA 16802

1-814-863-3640lcb11@psu.edu

‘The Artist’:Legality and Legitimacy in the Savage Lands of Governance

From „The Artist”: http://it.wikipedia.org/wiki/File:The_Artist.JPG

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

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

Peer’s excellent presentation provides certain parallels to ‘The Artist.’

The similarities between the two struck me and form the basis of this engagement:

--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 realities

But it is not clear to me whether he is seeing the changes in governance with the eyes of George Valentin or Peppy Miller.

I will consider Peer’s view from the perspective of the Movie Mogul, Al Zimmer:

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.

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

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???

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

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

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)

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.

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!

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.!

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

Zumbansen as Peppy Miller

Transnational Legal Pluralism is its own space (190)

The law-norm distinction is no longer useful except to those committed to the preservation of law-state ideology

Three dimensional comparison (between law-norm systems and within each)

Using empiricism as a political tool (Backer 2007); but is the empirical neutral?

Zumbansen as the Movie Mogul, Al Zimmer?

Norm systems are fully autonomous of the state; not merely other spheres of culture but governance/government in its own right

To worry about their relationship to law or to press the issue of law-norm convergence is beside the point

Theorize new governance centers on their own terms and let the new field boundaries be formed where they may

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

Thank You!!!