Jeg skal delta på ‘internasjonalt seminar’ for diverse rettsvitere om ikke lenge, og hadde en obligatorisk innlevering til dette. Siste spørsmål i innleveringen var følgende, og jeg legger ut mitt svar fordi jeg var litt fornøyd:
What is in my opinion the greatest challenge to European legal scholarship today?
I thought I knew my answer to this question, but in reading the obligatory texts, I discovered a larger, but related, problem. Throughout the texts, one refers to globalization almost as a force of nature. Introduction, for example, writes about the “undeniable forces of globalization”. This completely undermines the fact that globalization is not a natural, but a social, process. And it has been one that the legal community has been highly active in supporting, creating and implementing. The legal instruments required for expansion of capital from one country to another (read: from America to the rest of the world, and in modern times, from west-Europe to east-Europe, Japan and China to southern Asia, etc.), are legal instruments created by the legal institutions around the world.
Of course these instruments couldn’t have been ‘transplanted’ into countries around the world without the help of the entire western political apparatus, such as the military, the banks, the diplomacy, the bureaucracy and so on. But if we take the example of the IMF and the World Bank’s restructuring of Latin-American economies as conditions upon loans issued in order to tackle the economic situations following the Volcker-shock of 1980, we immediately realize that this would not have been possible without the legal instruments that implement these conditions. Privatization and austerity isn’t merely something that can be imposed per se, one needs legal instruments of property rights, contract law, business law, corporate structures, and so on, in order to do so. Legal scholarship, especially scholars from the L&E (Law & Economics) school, proved essential in developing these, and they continue to do so today. Continuing: Expanding the reach of ‘the four freedoms’ of the EU was done by the ECHR, effectively creating a situation in which, for example, Greece was unable to retain control over its national actors, resulting in unprecedented capital-flight and an economic crisis. When the EU, IMF and World Bank showed up, they drew up an entirely new legal framework for Greece, a framework which jurists had been essential in drawing up. The financial crash which sent the entire global economy into the mud, can be explained by a lot of factors, but subprime-mortgage-loans as well as the Big Four accounting firms’ tax-planning (and evasion schemes), their investment plans, was essential: Again legal scholarship was a necessary precondition for this. No single businessman came up with the complicated structure of modern finance which allowed for subprime-mortgages. This was the result of a decades long collective (but probably chaotic and discontinuous) project by (amongst others) legal scholars who contributed to the structure of the modern legal system in general, and the legal structure of companies, corporations, shares, bonds, loans, intellectual property- and property rights and so on and so forth, in particular.
This is all to say that legal scholarship needs to recognize it’s own role in contributing to creating the social process we today call globalization. And returning to my initial and instinctive answer to the question, one needs to wrestle with the question of legitimacy of legal scholarship. As the consequences of globalization (such as poverty, migration, climate-crisis, inequality) seem to have created the conditions for new, immediate consequences such as Brexit, the rise of far-right extremism, so legal scholars must ask themselves whether we are responsible for these consequences, and in answering affirmatively, how they can be solved. This is not to say that any one legal scholar is responsible, as this is necessarily a collective endeavour. It is also not to say that legal scholarship should instrumentalize law, but this time towards socially just causes. Rather, legal scholarship needs to accept that the legal system only has legitimacy, as Roberto Unger puts it, “in the last instance, and only in the last instance”, and work towards new solutions, which makes the legal system democratic at every instance.