Terence C Halliday
Terence Halliday is Research Professor, American Bar Foundation, an interdisciplinary institute of advanced studies on law and legal institutions. He is Honorary Professor, School of Regulation and Global Governance, Australian National University, and Adjunct Professor of Sociology, Northwestern University. Halliday is a specialist in globalization and law with two main lines of research and writing: (1) Globalization of law and markets with special reference to the interactions among global, national and local lawmakers and implementers. This research has involved fieldwork within the UN Commission on International Trade Law (UNCITRAL), the IMF, the OECD, and in China, Indonesia, South Korea, the U.S., and the U.K. on corporate bankruptcy, secured transactions, carriage of goods by sea, anti-money laundering and combating the financing of terrorism. (2) Globalization of law and basic legal freedoms in the broader context of historical and contemporaneous struggles for political liberalism. This research has involved co-leadership since 1995 of inter-disciplinary international networks of country specialists on Africa, Asia, Latin America, Europe and the Middle East. His recent books are Global Lawmakers: International Organizations in the Crafting of World Markets (Block-Lieb and Halliday, 2017, Cambridge), Transnational Legal Orders (Halliday
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Papers by Terence C Halliday
This paper treats this vast topic, with enormous global variation, by painting with very broad brush strokes, and giving specific examples to illustrate the general points. First, the paper considers some values and hazards of professional expertise, why the market itself cannot regulate professionals, and what are the broad arguments in favor of regulation. Second, the paper shows that there is no simple correspondence between the functions that professional workers perform in the market and the structures that organize expert work into professional occupations. Third, the paper reviews the basic elements of professional regulation and some of the various combinations of those elements in different national situations. Fourth, the paper provides an overview of five models of professional regulation in the market. And, fifth, the paper concludes with a brief survey of some of the most lively debates in advanced economies over the regulation of market professions.
Since the scope of this paper is so extensive and the length of the paper is quite limited, there are several restrictions. First, it must be emphasized again that every profession and every country has a different mode of professional organization and regulation. Not only is there huge variety,
but rapid change is occurring everywhere. Thus, the paper distills key elements, models, and trends, but in no way does it claim to be exhaustive or to trace every intricacy of every profession or nation it discusses. Second, for the most part the paper does not seek to map the complex geography of government regulatory agencies, although these inevitably are partially
treated in the review of models of regulation. Third, the entire discussion assumes what could be demonstrated-that effective professional regulation facilitates national and global market growth. And, fourth, there is no one model appropriate for every country, given its distinctive
history and institutions, even if certain principles seem valid across very different countries. Yet if any country wishes to be an integral player in the global economy, where there is a heavy flow
of investment, credit, professional services, and market transactions, then it will need to be aware of and accommodate to the standards and norms of practice, organization, and regulation that prevail in advanced economies. In this paper, the author privileges no particular national or professional regulatory system over another.
First, I trace the arcs and serendipities in two lines of research on globalization and law. On the politics of lawyers and legal change: research on the U.S., widening to collaborative research on Europe, Asia, Latin America and Africa from the 17th to 21st centuries, and ultimately to rights struggles in China, demonstrates that collective action by legal professions frequently, but contingently, is committed to the rise and defense of political liberalism. On the globalization of law and markets: research on international organizations after the Asian Financial Crisis reveals that legal experts are integrally involved in creating economic law for the world through a range of legal technologies, inscribed in global scripts, to forge consensus in the making of international law while enabling discretion in adaptations for national lawmaking. Both arcs have been punctuated by serendipities that so often turn scholarly trajectories of work in unexpected directions.
Second, I show how investment in law and society research centers, scholarly societies and networks, and academic publishing relate to the institution-building integral to a global expansion of law and society scholarship from nascent hopes in the 1970s to an institutionalized scholarly field by the 2020s.
Third, I identify ways in which academic work has been intertwined with other spheres of social life, importantly, the family, religious faith, and leisure. I conclude with reflections on the pull of the normative and theological as they shape academic agendas and scholarly activism in policy-making and publics, ranging from international law to accountability orders for human rights, especially lawyers’ concerns with basic legal freedoms, an open civil society, and moderate state.
Through all these streams of activity have flowed master themes—the autonomy and rationalization of law, the rise and fall of the good political society, the politics of legal professions—and the creation of concepts to comprehend varieties of legal change—the recursivity of law, legal complexes, idioms of legalism, plausible folk theories and transnational legal orders.
The paper asks four questions. First, when does autonomy of law truly matter? It argues that it matters in extreme situations where the Party-state considers criminal or rights cases to challenge its arbitrary exercise of power. Second, who can most acutely discern vulnerability of China’s citizens to unbridled executive power? It maintains that lawyers who take on cases of last resort, cases most threatening to local or central power, are among the mostly acutely aware of law’s limits at tempering power. Third, why should we care about this tiny segment of lawyers among the hundreds of thousands of private lawyers in the entire country? It proposes that rights and criminal defense lawyers stand at the crossroads of law’s restraints and abuses of power. Fourth, what do rights’ lawyers judge to be the conditions—their “political sociology”—that might advance and sustain the autonomy of law in a new New China?
The paper reveals four sets of conditions that the rights’ lawyers consider critical for the autonomy of law in China: (1) the ability of lawyers themselves to be able to form autonomous collegial communities and networks that are self-regulating, mutually supporting, and capable of mobilizing collectively on behalf of rule-of-law and basic legal freedoms; (2) the capacity of lawyers to cultivate interdependencies principally within China with independent media, which highlight harms, monitor courts and legal officials, report on trials and publicize lawyers’ cases, and on occasion outside China, where media cover Party-state’s failures to conform with universal legal norms and which offer solidarity for lawyers repressed by the state; (3) a mutuality between lawyers and civil society, where rights of freedoms of speech, association and religion are respected, where basics of political organization are cultivated free of state control, and where citizens feel empowered to meet social needs with a restrained intrusion of the state; and (4) where lawyers can energize a lively public sphere with a legal consciousness conducive to rule-of-law and in which lawyers might valorize ideals conducive to autonomous law as “spokespersons for publics.”
The paper concludes that the rights’ lawyers essentially express an imagination where a reconfiguration of China’s legal and political institutions offer structural dimensionalities of hope. In so doing, they echo the historic efforts of lawyer vanguards and legal complexes in North East Asia and across continents and earlier centuries to bring about a lawyers’ political liberalism which institutionalizes basic legal freedoms, a vibrant civil society, and a moderate state, all of which are conducive to, and constitutive of, the autonomy of law.
This paper treats this vast topic, with enormous global variation, by painting with very broad brush strokes, and giving specific examples to illustrate the general points. First, the paper considers some values and hazards of professional expertise, why the market itself cannot regulate professionals, and what are the broad arguments in favor of regulation. Second, the paper shows that there is no simple correspondence between the functions that professional workers perform in the market and the structures that organize expert work into professional occupations. Third, the paper reviews the basic elements of professional regulation and some of the various combinations of those elements in different national situations. Fourth, the paper provides an overview of five models of professional regulation in the market. And, fifth, the paper concludes with a brief survey of some of the most lively debates in advanced economies over the regulation of market professions.
Since the scope of this paper is so extensive and the length of the paper is quite limited, there are several restrictions. First, it must be emphasized again that every profession and every country has a different mode of professional organization and regulation. Not only is there huge variety,
but rapid change is occurring everywhere. Thus, the paper distills key elements, models, and trends, but in no way does it claim to be exhaustive or to trace every intricacy of every profession or nation it discusses. Second, for the most part the paper does not seek to map the complex geography of government regulatory agencies, although these inevitably are partially
treated in the review of models of regulation. Third, the entire discussion assumes what could be demonstrated-that effective professional regulation facilitates national and global market growth. And, fourth, there is no one model appropriate for every country, given its distinctive
history and institutions, even if certain principles seem valid across very different countries. Yet if any country wishes to be an integral player in the global economy, where there is a heavy flow
of investment, credit, professional services, and market transactions, then it will need to be aware of and accommodate to the standards and norms of practice, organization, and regulation that prevail in advanced economies. In this paper, the author privileges no particular national or professional regulatory system over another.
First, I trace the arcs and serendipities in two lines of research on globalization and law. On the politics of lawyers and legal change: research on the U.S., widening to collaborative research on Europe, Asia, Latin America and Africa from the 17th to 21st centuries, and ultimately to rights struggles in China, demonstrates that collective action by legal professions frequently, but contingently, is committed to the rise and defense of political liberalism. On the globalization of law and markets: research on international organizations after the Asian Financial Crisis reveals that legal experts are integrally involved in creating economic law for the world through a range of legal technologies, inscribed in global scripts, to forge consensus in the making of international law while enabling discretion in adaptations for national lawmaking. Both arcs have been punctuated by serendipities that so often turn scholarly trajectories of work in unexpected directions.
Second, I show how investment in law and society research centers, scholarly societies and networks, and academic publishing relate to the institution-building integral to a global expansion of law and society scholarship from nascent hopes in the 1970s to an institutionalized scholarly field by the 2020s.
Third, I identify ways in which academic work has been intertwined with other spheres of social life, importantly, the family, religious faith, and leisure. I conclude with reflections on the pull of the normative and theological as they shape academic agendas and scholarly activism in policy-making and publics, ranging from international law to accountability orders for human rights, especially lawyers’ concerns with basic legal freedoms, an open civil society, and moderate state.
Through all these streams of activity have flowed master themes—the autonomy and rationalization of law, the rise and fall of the good political society, the politics of legal professions—and the creation of concepts to comprehend varieties of legal change—the recursivity of law, legal complexes, idioms of legalism, plausible folk theories and transnational legal orders.
The paper asks four questions. First, when does autonomy of law truly matter? It argues that it matters in extreme situations where the Party-state considers criminal or rights cases to challenge its arbitrary exercise of power. Second, who can most acutely discern vulnerability of China’s citizens to unbridled executive power? It maintains that lawyers who take on cases of last resort, cases most threatening to local or central power, are among the mostly acutely aware of law’s limits at tempering power. Third, why should we care about this tiny segment of lawyers among the hundreds of thousands of private lawyers in the entire country? It proposes that rights and criminal defense lawyers stand at the crossroads of law’s restraints and abuses of power. Fourth, what do rights’ lawyers judge to be the conditions—their “political sociology”—that might advance and sustain the autonomy of law in a new New China?
The paper reveals four sets of conditions that the rights’ lawyers consider critical for the autonomy of law in China: (1) the ability of lawyers themselves to be able to form autonomous collegial communities and networks that are self-regulating, mutually supporting, and capable of mobilizing collectively on behalf of rule-of-law and basic legal freedoms; (2) the capacity of lawyers to cultivate interdependencies principally within China with independent media, which highlight harms, monitor courts and legal officials, report on trials and publicize lawyers’ cases, and on occasion outside China, where media cover Party-state’s failures to conform with universal legal norms and which offer solidarity for lawyers repressed by the state; (3) a mutuality between lawyers and civil society, where rights of freedoms of speech, association and religion are respected, where basics of political organization are cultivated free of state control, and where citizens feel empowered to meet social needs with a restrained intrusion of the state; and (4) where lawyers can energize a lively public sphere with a legal consciousness conducive to rule-of-law and in which lawyers might valorize ideals conducive to autonomous law as “spokespersons for publics.”
The paper concludes that the rights’ lawyers essentially express an imagination where a reconfiguration of China’s legal and political institutions offer structural dimensionalities of hope. In so doing, they echo the historic efforts of lawyer vanguards and legal complexes in North East Asia and across continents and earlier centuries to bring about a lawyers’ political liberalism which institutionalizes basic legal freedoms, a vibrant civil society, and a moderate state, all of which are conducive to, and constitutive of, the autonomy of law.