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The Global Flock and the Beautiful Soul

Global Affiliated Professor Alexander Somek recently published an article in the Duke Journal of Comparative and International Law, titled “The Global Flock and the Beautiful Soul,” as part of the Centre for Law and Society in a Global Context’s symposium on Hans Lindahl’s book Authority and the Globalisation of Inclusion and Exclusion.

From the article:

Lindahl’s work exemplifies what legal scholarship can be if it lives up to its full potential. Authority and the Globalisation of Inclusion and Exclusion is a core contribution to the theory of law in general. This is the case even though—and perhaps on the ground that—it has been written in response to the perplexities that have arisen in recent decades within private and public international law. Against this backdrop the book demonstrates how legal scholarship is able to make progress, namely, by exploring how certain fields of law have outgrown a received conceptual framework guiding their apprehension by both practitioners and scholars. So-called “theoretical” reflection emerges from a doctrinal context when attempts are made to account for the limitations inherent in the vocabulary with which legal thought links sets of facts with sources of law. The widespread distinction between theoretical and straightforward legal scholarship is just as arbitrary as many other social divisions that segregate people and their pursuits into different groups or strata of society

….

In what follows, I would like to focus on two basic strategies of this remarkable work that nonetheless strike me as problematic. I would like to propose a friendly amendment to each. The first is intended to draw out more clearly the authoritarian deep structure of global regulation and adjudication, while the second calls for greater caution with regard to embracing any jargon of authenticity in the context of recognizing the somewhat wearisome “otherness of the other.”

The first strategy consists of viewing legal orders, which are set in legal “worlds” or legal “spaces,” as systems of collective action. Lindahl elaborates this idea in what he calls the IACA model of law (“institutionalized and authoritatively mediated collective action”). I am afraid that the model is generally misleading, by which I mean that it is confusing not only in the context of global legal orders, but as a legal theory tout court. The reason is, plainly and simply, that the model must perceive collective agency where there in fact is none. The misattribution of such agency is, therefore, the chief demerit of theories of this type. As shall be further explained below, in cases that are referred to as “massively shared” or “massively alienated” agency, the collective agency model becomes grossly overstretched to a point at which it becomes utterly implausible. At the end of the day, the model appears to betray an organized vision of collective agency that imputes to individuals participation in common action regardless of whether they intend it or not. The suggested friendly amendment attempts to avoid this pitfall.

The second strategy consists of suggesting that mutual recognition, either in its symmetrical or asymmetrical form, is at the heart of legitimate authority. Lindahl puzzles his readers with a beautifully circular way of characterizing this relation, whereby the gaze of recognition is mirrored back to the person recognizing another. Hence, any misrecognition of the other results in misrecognizing what might have been oneself. In reply to such phenomenological intricacy the second amendment emphasizes that in the case of law recognizing people as “legal subjects” is already a way of addressing the internally tangled relation of recognition and misrecognition.

Read the full article here.

Alexander Somek, The Global Flock and the Beautiful Soul, 29 Duke J. Comp & Int’l L. 361 (2019).

For more publications by Professor Somek, visit his faculty bibliography page.

Alexander Somek