Extensive lecture notes of Module 2 Advanced Philosophy of Global Law (lecture 3, 4 and 5)
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Course
Advanced Philosophy of Global Law (620309B6)
Institution
Tilburg University (UVT)
This extensive summary of the lectures of Module 2 (lecture 3, 4 and 5) of Advanced Philosophy of Global Law consists of very extensive notes of the lectures of this module. Everything prof. Lindahl has said in the three lectures of this module has been typed out here word-for-word and has been str...
Advanced Philosophy of Global Law
Lecture 3. Legal Orders in a Global Setting 1
The essence of the first lecture is:
Global legal pluralism. Introducing historically what would be the positioning of what Sassen calls the
“Global Assemblage” within what Western history calls ‘the medieval period’
The essence of the second lecture is:
This lecture was oriented to discussing issues of inclusion and exclusion and trying to make sense of
why resistance to global legal orders would call into question issues about those boundaries and the
distinction between inside and outside.
The essence of this third lecture is:
This lecture lays the groundwork for everything that follows.
The aim of this lecture is to provide a basic conceptual framework to make sense of the inside and
outside distinction.
1. Introducing the first-person plural perspective
This lecture
The aim of this lecture: to sketch out a general concept of legal order
o of legal order, not merely of “law” or “laws”
o Why? Because inclusion and exclusion play out in terms of orders, not merely of laws
o a general concept of legal order
Hypothesis: legal order is a first-person plural concept: “We together” or we*
o Why this concept? Because the first-person plural perspective is constitutive for references to
“our own” territory vis-à-vis the strange
Strategy: three-tier analysis: the IACA-model of law
o Collective action
o Authority
o Institutionalization
Prof. Lindahl’s perspective:
Lindahl tries to argue that, when thinking about legal orders, we need to make sense of the law in
the first-person plural perspective: “we together”
Lindahl speaks about a ‘general concept’ of legal order because he wants to try to make sense of
‘legal order’ in a way that would include the state, but also globalising legal orders, transnational
legal orders, regional legal orders like the EU and WTO, and maybe even indigenous law. All this to
make sense of ‘global legal pluralism’.
Lindahl speaks of a ‘general concept’ of legal order, rather than merely of ‘law’ and ‘laws. The reason
for this is that only at the level of a legal order, the whole issue of inclusion and exclusion plays out.
Of course, this is implemented by ‘law’ or ‘laws’. But, ultimately these ‘law’ or ‘laws’ are incorporated
into a legal order, such as e.g. the Netherlands. This is where inclusion and exclusion take place.
Secondly, Lindahl speaks of a ‘general concept’ of legal order, because he hopes to have a concept
of legal order which fits several kinds of legal orders, even if it does not make the claim of being a
universal concept of legal order. NOTE, that Lindahl thinks this is NOT POSSIBLE.
o Lindahl thinks it is NOT POSSIBLE the create a universal concept of legal order that would
be sufficiently capacious to include all kinds of legal orders.
o Lindahl thinks that what some groups want to call ‘law’ is in many ways so different from
what positive law has come to mean within Western thinking, that it would be an illusion to
think that there would be a model of law would be sufficiently capacious to include all those
forms of very different non-western law.
The IACA-model of law thus is a GENERAL concept of legal order but NOT UNIVERSAL!
The guiding hypothesis Lindahl uses to work out the IACA-model of law is that : legal order is a first-person
plural concept. “We together”.
1
, Lindahl: IF what is at stake is the first-person plural – thus, to talk about “we” – then, it is to say that
law is one of the ways in which we try to articulate what it means to live as “we together”.
Lindahl says that legal order is a first-person plural concept, is that the notion of a ‘we together’ – the
first-person plural perspective – is constitutive for reference such as “our own” territory vis-à-vis the
strange or the foreign.
Thus: First-person plural perspective = ‘we together’ = we*
Lindahl’s strategy thus is to unpack the notion of law or legal order as the first-person plural perspective into
a three-tier analysis: The IACA-model of law = law as institutionalized and authoritatively mediated collective
action.
Below, each of the three tiers will be explained. First collective action, then authority, then institutionalization.
1. Introducing the first-person plural perspective
Ubiquity of the first-person plural perspective in society
*Ubiquity = the fact of appearing everywhere or of being very common.
Figure 1 "Wir sind ein volk" The reunification of East and West Germany Figure 2: "Wir sind das volk
1989/1990" Fall of the Berlin Wall
Left image “Wir sind das volk 1989/1990”
This is the fall of the Berlin Wall and the end of the DDR Dictatorship.
Here you see people going to the streets in former East-Germany to claim back power which they had
delegated to people which they felt that no longer represented them.
They said: WE are the people. WE, rather than you, are the ultimate source of authority and the exercise of
power within a collective.
Right image “Wir sind ein volk”
“Wir sind ein volk” = we are ONE people.
This was the reunification of East and West Germany.
Here you again see the reference to a people, and to a people as one.
What is at stake here, is that even through there are many people on the streets, they are all citizens of one
people, of one country.
This is the political sense of the notion of “we” and of ‘law’ as being a first-person plural perspective.
=> “we” in the sense of “we together”
Figure 3 The American preamble
2
,Another example is “We the people” as stated in the preamble of the US Constitution.
‘We, the people’ = Collective Agency
More examples of “we together” in the sense of the first-person plural perspective:
We, the peoples of the Amazon: https://www.theguardian.com/commentisfree/2019/sep/02/amazon-
destruction-earth-brazilian-kayapo-people
We, the Karnataka State Farmers’ Association:
https://www.vam.ac.uk/blog/disobedient-objects/signs-respect-karnataka-state-farmers-association
We, Shell: https://www.shell.com/about-us/who-we-are.html
We, the WTO: https://www.wto.org/english/thewto_e/whatis_e/who_we_are_e.htm
We, Ajax: https://en.wikipedia.org/wiki/Wij_zijn_Ajax
We, Ensemble Edge: https://ensembleedge.wordpress.com/who-we-are/
o We, Vía Campesina: https://viacampesina.org/en/who-are-we/
The word ‘we’ you can find everywhere
1. Introducing the first-person plural perspective
Inclusion vs. exclusion, inside vs. outside and methodological
individualism
Cutting a cake in two vs. including and excluding
Inside/outside: an agent-relative perspective
Methodological individualism: groups are no more than aggregations of individuals
“To ascribe mental predicates to a group is always an indirect way of ascribing such predicates to its
members. With such mental states as beliefs and attitudes, the ascriptions are what [I call] a summative
kind. To say that the industrial working class is determined to resist anti-trade union laws is to say that all
or most industrial workers are so minded”. – Anthony Quinton, ‘Social objects’, 1975
What is so special about the first-person plural perspective?
Imagine the example where you have a cake. There are guests, you need to cut the cake and give out the
pieces.
If you were to cut the cake in two, you would not say that in the process of doing so, you are including one
piece of cake and excluding another piece of cake. That would be senseless, as you are simply creating
different chunks of something to eat which you are handing out to individuals.
On the other hand, with the “We the people” in the US preamble, you are creating both a “we” and a “they”.
In the process of creating a “they”, you are including and excluding.
Both in the case of the cake and the US preamble you get a closure, you are a ‘cut’.
With the cake, you cut it into two pieces.
With the case of creating a collective (the US and Germany), some will be part of it and some will not be part
of it. Hence, you are including and excluding.
Lindahl: The reason for having the first-person plural perspective as part of the legal theory about legal order,
is because without that perspective, you cannot make sense of inclusion and exclusion (which is the core
topic of this course).
This means that the notions of inside and outside presuppose an agent-relative perspective.
That is to say, from an agent such as yourself or myself who are relating with other individuals.
This understanding of the first-person plural perspective, the notion of a “we together” has been severely
critiqued by methodological individualism.
Methodological individualism
The theory of methodological individualism implies that groups are no more than aggregations of individuals.
Methodological individualism thus critiques the first-person plural perspective, the “we together”
3
, Look above at the images of Germany. Methodological individualism suggests that if you want to make
sense of what it means for these people to understand themselves as a people, it is nothing more than the
aggregation of each one of these individuals, the summation of each one of these individuals and whoever
else belongs to the German people.
According to methodological individualism, all of these individuals summed up together are what it means to
speak about a German people.
Thus: Rather than speaking about a ‘whole’ or a ‘unity’, methodological individualism says that whatever you
want to call ‘unity’ is simply the summation of a number of individuals.
This quote is a good presentation of the notion of methodological individualism:
“To ascribe mental predicates to a group is always an indirect way of ascribing such predicates to its
members. With such mental states as beliefs and attitudes, the ascriptions are what [I call] a summative kind.
To say that the industrial working class is determined to resist anti-trade union laws is to say that all or most
industrial workers are so minded”. - Anthony Quinton, ‘Social objects’, 1975
You could change the bold sentence: To say that the German people of the DDR are determined to resist the
dictatorship in East-Germany, is to say that all or most citizens in East-Germany are so minded.
1. Introducing the first-person plural perspective
An example: Art. 50 of the Dutch constitution
An example: Article 50 of the Dutch constitution:
“De Staten-Generaal vertegenwoordigen het gehele Nederlandse volk” (Parliament represents
the entire Dutch people)
On an aggregative reading: Parliament represents 18 million citizens
Hence, eliminativism of collective agency; why?
Worries about the hypostasis of collectives into entities different from the members that compose
them
Worries about levelling down deep heterogeneity in groups
Why would you want to go for methodological individualism? Wy would social scientists propose the first-
person plural perspective?
Look at art. 50 Dutch Constitution.
On an aggregative reading (methodological individualism), art. 50 would mean nothing more than that
parliament represents 18 million citizens. Despite only part of them can vote, the ‘entire Dutch people’ is
represented by Parliament.
Here, the reference to a “we” as a collective disappears within the framework of methodological
individualism.
In other words: collective agency – agency by a ‘we, the people’ – is eliminated and replaced by agency of
18 million persons. Hence, eliminativism of collective agency.
Why would you want methodological individualism and thus eliminate collective agency?
This is about the hypostasis of collectives. There are worries about the hypostasis of collectives into
entities different from the members that compose the collectives.
o Lindahl: Hypostasis = solidification; making something an affixed entity that is different from
the members that composed them.
o Dictionary: Hypostasis is an underlying reality or substance, as opposed to attributes or to
that which lacks substance.
There are also worries about methodological individualism and consequently eliminating collective
agency, levelling down deep heterogeneity in groups. political reason.
o Because even when speaking about “we the people”, there are huge differences between
the individuals that will compose that group. The individuals may even be in fundamental
disagreement about what it exactly is that they share as members of that group.
o The RISK in referring to “we the people” therefore is that you factor out the differences and
the conflict, but this (these differences and conflicts) is part of politics.
‘We, the people’ = collective agency
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