Mina Mina Jukurrpa (Woman's Dreaming), 2004 (Acrylic on canvas)
Metropolitan Museum of Art))
Of the three, one, comparative law, appears more focused on method than substance, that is it serves as a bridge or a communication device among distinct substantive systems of law. Comparative law, then, suggests the manner in which academics work through issues of structural coupling among any set of systems they are willing to couple and de-couple, for example, private law, constitutional law, the regulation of enterprises and the like. Comparative law is sometimes, then, understood as something in-between--it has a function, to get from some point to another, but is no field. Consider the emphasis of the Oxford Handbook of Comparative Law (Mathias Reimann and Reinhard Zimmermann, eds., Oxford: Oxford University Press, 2006), the second Part of which (pp. 305-869) is devoted to a functional study of this busy-ness:
Part II: Approaches to Comparative Law
9. Comparative Law Within the Field of Comparative Disciplines: Nils Jansen, Münster
10. The Functional Method of Comparative Law: Ralf Michaels, Durham, North Carolina
11. Comparative Law: Study of Similarities or Differences? Gerhard Dannemann, Berlin
12. Comparative Legal Families and Comparative Legal Traditions: H. Patrick Glenn, Montreal
13. Comparative Law as the Study of Transplants and Receptions: Michele Graziadei, Alessandria
14. Comparative Law and the Study of Mixed Legal Systems: Jacques du Plessis, Stellenbosch
15. Comparative Law and its Influence on National Legal Systems: Jan M. Smits, Maastricht
16. Comparative Law and the Europeanization of Private Law: Reinhard Zimmermann, Hamburg
17. Comparative Law and the Process of Globalization: Horatia Muir Watt, Paris
18. Comparative Law and the Islamic Legal Culture: Chibli Mallat, Beirut
19. Comparative Law and African Customary Law: Tom W. Bennett, Cape Town
20. Comparative Law and Language: Vivian G. Curran, Pittsburgh
21. Comparative Law and Legal Culture: Roger Cotterrell, London
22. Comparative Law and Religion: Harold J. Berman, Atlanta, Georgia
23. Comparative Law and Legal History: James Gordley, Berkeley
24. Comparative Law and Socio-Legal Studies: Annelise Riles, Cornell
25. Comparative Law and Critical Legal Studies: Ugo Mattei, Turin
26. Comparative Law and Economic Analysis of Law: Florian Faust, Hamburg
The functional method has become both the mantra and the bête noire of comparative law. For its proponents it is the most, perhaps the only, fruitful method;1 to its opponents it represents everything bad about mainstream comparative law. The debate over the functional method is indeed much more than a methodological dispute. It is the focal point of almost all discussions about the field of comparative law as a whole—centres versus peripheries of scholarly projects and interests, mainstream versus avant-garde, convergence versus pluralism, instrumentalism versus hermeneutics, technocracy versus culture, and so on. (Ibid, 340)
What is missing for Michaels, is greater methodological coherence.
We should look at the functions and dysfunc- tions of the concept of function, including its latent functions, in the production of comparative law knowledge. We should look at whether it is functional or dysfunctional, and we should see whether alternative proposals could serve as functional equivalents. This should enable us at the same time to start reconstructing the functional method as a constructive, interpretative,126 rather than positive enterprise, as a way of making sense of legal systems—constructing them as meaningful, instead of merely measuring them. (Ibid, 363).
On the one hand, TL emerges as a series of contemplations about the form of legal regulation with regard to border crossing transactions and fact patterns transgressing jurisdictional boundaries that involve a mixture of public and private actors and norms. . . . On the other hand, transnational law continues to evolve as a thought experiment in legal methodology and legal theory. (Zumbansen, supra, 3).
Does transnational law represent a new and independent legal order?
Yes: Transnational Law can be defined as the law of non-state governance systems. The definition suggests both commonalities and differences between “transnational law” as a distinct legal field and conventional legal fields derived from the legal orders of nation-states. Like domestic law fields, transnational law includes both a constitutional element (a basic set of presumptive and supreme organizing principles and rules), a substantive element (implementing the constituted system), and a process element (rules for the development of substantive rules and dispute resolution. Unlike domestic legal orders, transnational law covers a wide number of distinct governance communities existing simultaneously and organized beyond the rule imposing power of states. Moreover, these governance communities are not necessarily organized in the same way as states—with a population and a defined geographic territory and an institutional framework exercising plenary authority. Rather, transnational law communities may be understood as functionally differentiated communities organized for mutual benefit for specific objectives. They can include groups, institutions, abnd networks. Transnational law can thus be understood as the study of the system of principles and rules applied in lieu of or in addition to the domestically germane law of a state, or of the community of states, to the relationships among persons and institutions—public and private, natural and legal.
What persons or entities control the creation and regulation of Transnational Law?
No one person or entity and no single institution controls transnational lawmaking. Transnational law is not dependant on a single lawgiver or regulator. Transnational law is thus the study of law that does not belong to or can be controlled by any single system of domestic or international law, as both have been traditionally constituted. Diffusion of regulatory authority is one key to understanding the structure of Transnational Lawmaking. Another key is functional differentiation of authority among a wide variety of political and nonpolitical communities. The system of hierarchical and vertically integrated regulatory systems grounded on the state as the pinnacle of law making and on the community of states as the disciplinary mechanism for relations among states has been augmented by regulatory systems covering matters beyond the reach of any single state. Transnational Law starts from the premise that law and lawmaking are no longer the exclusive preserve of political states, or of the community of states. Transnational Law posits that political communities no longer hold a monopoly on law making—that law systems are no longer grounded on an identity between law (or regulatory authority) and the state (and the community of states). Autonomous supra-national actors, private global actors, and communities grouped by function or affinity can, to some extent, produce regulatory systems understood to be transnational.
Is Transnational Law a single or unitary system of laws, rules and principles?
No. Transnational Law is not a unitary system of laws and rules analogous to the legal structure of a state, or the treaty and custom structure of the law of nations. Transnational law is an amalgam of rule systems, of hard and soft law, that are limited in scope, but effective within the scope of the authority of the rulemaking community. The key characteristic of transnational sub-systems is their functional limits. Like classical federal systems, all transnational sub-systems are based on grants of limited and specific authority. These limits are defined sometimes by function (commercial law, investment, human rights) and sometimes by other factors (shared belief, citizenship in particular political communities and the like). The aggregation of sub-systems together constitutes the field of Transnational Law. However, Transnational Law as a whole is grounded in certain principles and rules that form the basic focus of any study of this field. The foundational premise rests on acceptance of the existence—independent of the control or authority of any one state or of the community of states—of a system of non-national, supra-national or multi-national principles and rules applicable, in accordance with its own terms and logic, to public and private actors, natural and juridical persons.
What are the principle features of the study of Transnational Law?
There are four characteristics that form the basis of the study of the grounding rules and principles of transnational law and law-making: (1) scope of authority, (2) institutional autonomy, (3) regulatory authority, and (4) effectiveness of power to settle disputes. These have a constitutional element—the organizing principles that give the regulatory community form and set its organizational boundaries. These include the constitution of a government apparatus and the rules for the operation of the governance power vested in this organization. They also have substantive and process elements. These include the rules, laws, and other norms that are produced or administered by the community and the process rules through which they are applied, enforced, constructed and interpreted.
What are some of the key elements of Transnational Law?
All transnational law systems share certain key characteristics. Transnational Law is not bound to the jurisdiction of any state. It is based on systems of partial and contingent regulatory authority; each regulatory system is dependent on others to some extent and yet are complete within the scope of their authority. Transnational Law systems are both horizontally and vertically integrated to some extent with each other and with domestic and international systems.