Transnational Law

by

Philip Liste

• LAST REVIEWED: 28 September 2020
• LAST MODIFIED: 27 February 2019
• DOI: 10.1093/obo/9780199743292-0251

Introduction

Transnational law (TL) reacts to normative demands in world society and thus covers normative worlds beyond both domestic and international realms. Inasmuch as domestic law structures relations among actors within the confines of a territorial state, and international law structures relations among states, TL can be understood to structure relations “across” states and state jurisdictions, thus transcending some of the normative confines just mentioned. The study of TL thus reacts to some conceptual challenges to a sociopolitical constellation in which the common distinctions between the “domestic” and the “international,” as well as between “public” and “private” forms of regulation, are put into question and can no longer be trusted as effective thinking tools. Although work in international studies (broadly conceived) has long challenged the narrow conceptions of interstate politics and accounted for the varieties of themes in globalization, a vibrant body of work on TL now available in the fields of international legal studies (ILS) but also legal studies more broadly (e.g., in the field of law and society studies) has not yet found much replication in international relations (IR) theory. However, since TL can be said to correspond to transnational relations as introduced to IR theory mainly from the 1970s onward, theoretical and empirical engagement with TL will find an indeed rich conceptual context in international studies, the latter understood as an interdisciplinary scholarly endeavor. It needs to be noted, however, that for disciplinary fields using the term “international” as a significant part of their identity, thinking the “transnational” is a double-edged sword. Inasmuch as the meaning and relevance of the term “international” are put into question, disciplines risk putting into question their own relevance. However, facing globalization and the putative complexity of new constellations of actors and processes, international studies did indeed engage in some discussion on alternative framings of its main subject—with the “world,” the “global,” and last but not least the “transnational” as promising candidates. At the same time, while international law has become a hot topic in IR, this has not yet led to much acknowledgment of the role that transnational law plays in what is perhaps a newly emerging political constellation. Although work on transnational actors and networks of governance, as well as on the emergence of private authority beyond the state, has indeed touched on issues for which legal regulation is of a remarkable relevance, this has not stimulated much engagement with how TL is discussed in legal studies. Thus understood, for IR there is still much to be explored in the legal study’s work on TL, including transnational legal process, transnational legal theory, or transnational legal pluralism. Vice versa, legal studies could benefit from work in a tradition of political science, especially with regard to an understanding of the political consequences of a transnationalization of law and global normative order more generally. The aim of this article is to provide an overview of work on TL, though by inviting an interdisciplinary account of literature. The featured books and articles include work on TL in legal studies, as well as those publications in IR, which may provide the grounds for a soon-to-be lively discussion on TL and the role it plays in world society. Furthermore, the overview also entails work in fields such as sociology, anthropology, and geography, which have already explored TL as a rich phenomenon.

General Overviews

In legal studies, the concept of “transnational” was introduced by Philip Jessup (Jessup 1956) already in the 1950s, whereas it took two more decades of international relations (IR) scholarship before the concept of the “international” was significantly addressed as too narrow to depict the complexities of a globalizing world. In a 1971 special issue of the journal International Organization (edited by Joseph Nye and Robert Keohane), relations between private actors (then, mainly multinational corporations) across nation-state borders but also relations between private actors with governments of other states were addressed as “transnational interaction patterns” (Nye and Keohane 1971). The idea was that these “new” patterns would arguably affect the course of how international politics operate. The transnational theme also played some role in the upcoming work on global governance and was taken up in IR in the mid-1990s in Risse-Kappen 1995. At this point, the role that TL played in these patterns was not paid attention to in the latter field, let alone the question of whether the switch from international to transnational would change the legal quality of such patterns. In turn, an orientation toward a broader engagement that takes into account both the law and its politico-social environment has more recently become stronger in legal studies (Scott 2009, Zumbansen 2011).

• Jessup, Philip C. Transnational Law. New Haven, CT: Yale University Press, 1956.

  In this small book, Jessup introduces the term “transnational law” to legal studies and elaborates on the challenges that this new perspective poses to legal practice, domestic and international. See Important Definitions.

• Nye, Joseph S., and Robert O. Keohane. “Transnational Relations and World Politics: An Introduction.” In Special Issue: Transnational Relations and World Politics. Edited by Joseph S. Nye and Robert O. Keohane. International Organization 25.3 (1971): 329–349.

  For Nye and Keohane, somewhat paralleling Jessup, the term “international relations” (in the sense of relations between state governments) is too narrow to account for the complexity of world politics, which they see as affected by various interaction patterns involving not only states but also private actors such as corporations. Against this backdrop, the authors suggest a research program that studies how such transnational interaction patterns affect world politics.

• Risse-Kappen, Thomas, ed. Bringing Transnational Relations Back In. Cambridge, UK: Cambridge University Press, 1995.

  The volume builds on the earlier transnational-relations approaches in IR and asks for the institutional-background conditions of transnational action. It contains several case studies on the domestic institutional context for transnational actors to implement their policy preferences.

• Rosenau, James N. “International Studies in a Transnational World.” Millennium: Journal of International Studies 5.1 (1976): 1–20.

  Early programmatic article in which Rosenau elaborates on the challenges that IR theory faces in a world of transnational ties and changing authority structures. He holds that in addition to empirical challenges, transnationalization must also stimulate conceptual and methodological reorientation.

• Scott, Craig M. “Transnational Law as Proto‐concept: Three Conceptions.” German Law Journal 10.6–7 (2009): 859–876.

  Very insightful conceptual discussion in which Scott distinguishes three conceptions of transnational law (traditionalism, decisionism, and pluralism)—arguably siding with the third. For nonlawyers, the article is highly welcome because of its discussion both of practical and theoretical issues.

• Zumbansen, Peer. “Transnational Law, Evolving.” In Comparative Research in Law & Political Economy. Osgoode Hall Law School Research Paper 27/2011 Toronto: Osgoode Hall Law School, 2011.

  Insightful and comprehensive overview of strands of work on transnational law in various—and indeed interdisciplinary—fields in legal studies.