Sunday, January 01, 2012

Transnational Law as Field or Method

It is not uncommon to distinguish among foreign, international and comparative law by positing that the first is the study of the law of domestic legal systems not one's own, the second focuses on the development of a legal order among states and other international actors that arises outside of domestic legal orders (though interacting with and projecting power within it) and the third is the method by which the first to can be understood to engage in interactions with other systems.  

 (photo (c) Larry Catá Backer (of Judy Watson Napangardi
Mina Mina Jukurrpa (Woman's Dreaming), 2004 (Acrylic on canvas)
Metropolitan Museum of Art

This essay considers current debate about the nature of these fields of law in the context of globalization, and the role of transnational law as a field or  technique within or alongside these debates.  That consideration is undertaken in the context of a recent excellent essay--Peer Zumbansen, Transnational Law, Evolving (December 15, 2011) Osgoode CLPE Research Paper No. 27/2011 (revising a prior version produced for the Elgar Encyclopedia of Comparative Law (Jan Smits, ed., 2006)).

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

This has produced a certain amount of frustration.  Ralf Michaels' contribution, "The Functional Method of Comparative Law", in  The Oxford Handbook of Comparative Law  (Mathias Reimann and Reinhard Zimmermann, eds., Oxford: Oxford University Press, 2006) suggests both complexities of the issue of method and the structuring of knowledge fields:
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)

(photo (c) Larry Catá Backer))

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).
This may well produce useful movement toward the building of a system (Ibid, 372-3) that might in part, serve as a framework for evaluating the law compared (Ibid., 373-76), perhaps, for some, in the service of legal unification (ibid., 376-78). "Functionalist comparative law has not yet made sufficient use of the benefits of functionalism. This study can only hint at the possibilities, but its findings suggest that a more methodologically aware functionalism will provide us with better insights into the functioning of law." (ibid, 381).

Is transnational law a variant of comparative law or does it instead incorporate substantive elements as well? It is possible to suggest that the foundational issue of disciplinary self conception has moved from comparative law to the emerging field of transnational law.    In an excellent essay, Peer Zumbansen makes a strong case that transnational law, like comparative law, is better understood as a methodology of law.  Peer Zumbansen, Transnational Law, Evolving (December 15, 2011) Osgoode CLPE Research Paper No. 27/2011 (revising a prior version produced for the Elgar Encyclopedia of Comparative Law (Jan Smits, ed., 2006)).      
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).
What follows, for Zumbansen, is the "recognition that transnational law presents an important opportunity to reflect on law and its connections to ongoing investigations into local and global forms, institutions and processes of governance." (Ibid.).  And thus the critical contention-- transnational law "invites a fundamental reflection on what is to be considered law." (Ibid). As a consequence, transnational law, itself, sits in-between--neither law in the classical sense, nor the product of the domestic legal orders of states, nor the system of relations among traditional subjects of international law.  But does this reduce the transnational to method?
Zumbansen starts with transnational law's origins in the middle of the last century.  He notes its expansion as the global legal and economic order changed in the aftermath of the construction of the post 19454 global framework by the Allies.  The maturing of these investigations suggests two directions for transnational law.  On the one hand, and like comparative law, it assumes a parasitical role--"to spread out into different legal fields, both in scholarship as in legal education." (Ibid., 5).  On the other, transnational law has "matured in their conscious thematizing of the underlying methodological and conceptual challenges arising from law's embeddedness in a comprehensive, multi- and interdisciplinary discourse."  (Ibid.).  Enter globalization.  It is in the context of the opening up of governance in the wake of movements toward global freer movements of goods, capital, services and to a lesser extent, labor, that transnational law finds a space to evolve.  Yet there is a sense that for transnational law to emerge as a field some sort of unifying theory is necessary, one tied both to the forms of law and to its effectuation through the apparatus of government.  (Ibid. 6-7).  In the absence of this conservative activity, transnational law, like its cousin, comparative law, remains fit for method--and function--but not b necessarily as a field apart from the fields of law it either displaces or transforms.  It is to those field that Zumbansen then turns.  Here is Zumbansen at his best; his discussion of the transnational element within these old fields suggests, for me, not so much method as the construction of the field with its own methodology.   First, Zumbansen examines lex mercatoria (ibid., 7-8), then corporations (ibid., 8-9), human rights and transnational anthropology (ibid., 9-11), comparative constitutional law and transnational constitutionalism (ibid., 11-12), administrative law (ibid., 12-14), and transnational human rights litigation (Ibid., 14-15). 

Zumbansen ends with an examination of transnational legal history and societal memory (ibid, 15-16) and transnational legal education (ibid., 16-17). Of these, the last section on legal education is particularly insightful.  Issues of field or methodology become most important when one is trying to organize knowledge for the purpose of teaching this to others, and of developing a vocabulary and reality framework that makes concepts understandable and useful.  Deterritorialization of legal education, at least within elite schools, has produced a dialectical process in which national traditions continue to shape education the content of which is increasingly unbounded by those very traditions.  (Ibid., 17).   This is not merely a  problem for shaping the relationship between teacher and student; it is equally important for the shaping of academic communities and markets for knowledge.  

Zumbansen sees the unifying methodological strands of the fields that retain their independence from each other, even as they lose connection to states,  the contours of which he masterfully examines.  I wonder, though, if it is possible to see beyond the methodology, and over the barriers that separate traditional fields, a set of substantive unifying elements that might illuminate the contours of the constitution of substance of transnational law as a field.  Zumbansen deftly posits the form of ther field.  IS it possible to define the field itself beyond its utility as a means of making coherent the integrity of traditional fields when these burst out from the borders of the domestic legal orders the territorial limits of chichi used to supply field coherence.

(Photo (c) Larry Catá Backer))

I have roughed out the possible contours of how the field of transnational law might be understood.  Larry Catá Backer, Principles of Transnational Law: The Foundations of an Emerging Field, Law at the End of the Day March 9, 2007. It may contribute another strand to what Zumbansen correctly describes as a history of a term, the variances of which "can be attributed mostly to the different doctrinal and theorectical backgrounds of those employing it."  (Zumbansen, supra, 6).  

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. 

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