RETHINKING LEGAL THINKING: THE STATE AND THE NEW LOGICS di H. Patrick Glenn
It is a great pleasure to be here at the University ‘Magna Graecia’ of Catanzaro and to take part in your deliberations on the theory of law and European legal orders. I owe thanks both to Professor Sergio Ferlito of the University of Catania and to Professor Massimo La Torre for their invitations to be here today.
I wish to discuss the possibility of ‘rethinking legal thinking’, the title of a project launched at the University of Helsinki in 2010 and which was also continued at the European University Institute thereafter. The project is concerned with the ongoing transnationalisation of law which forces us to rethink our inherited ways of legal thinking1. As my title suggests, I will concentrate my remarks on our concept of the state and the logic which has historically supported this concept, while suggesting that there are ways of rethinking the state which are supported by the new logics. The importance of this process of rethinking the state may be sufficiently evident by general knowledge of the process known as ‘globalization’, but two recent volumes may be cited in support of it, those of Martin van Creveld on The Rise and Decline of the State2 and Johanna Guillaumé on L’affaiblissement de l’État-Nation et le droit international privé3. Whatever the future of the state may be, there already appear to be changes from the concept of the state which has prevailed over the last few centuries. This appears most evident if one attempts to understand the state as it exists now in nearly 200 instantiations across the world, from states which are relatively successful or ‘developed’ to states which are often described as ‘failed’, ‘failing’ or ‘quasi’ states. How can one think of such a range of institutional variation which would nevertheless be faithful to a single descriptor, that of being a ‘state’?