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.