Friday, March 09, 2007

Principles of Transnational Law: The Foundations of an Emerging Field

There has been an increasing use of the term "transnational law" by lawyers and students of international relations (economic regulation, globalization, human rights, etc.). The term has as many meaning as it has people willing to use the term. From that conversation, I believe, it is possible to discern the basic structure of an emerging field of law. The purpose of this essay is to suggest examine the basics of that structure, which I have organized in question and answer format. The themes described here are being developed for a new American course book I am preparing, tentatively entitled: Transnational Law and Legal Problems: An Introduction to the Field.

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. 

Is Transnational Law an established field generally accepted as such within the academic and legal community?

    Not yet.  Transnational Law is a new field.  Philip Jessup first proposed the use of the term in the 1950s.  He hoped the term could serve as a focus of what appeared to him to be a new set of problems of law that could not be easily subsumed within the field of international law as then understood.  But in doing so he sought to expand the breadth of the traditional boundaries and understanding of international law beyond that field’s ability to contain it without becoming something else.  Still, Jessup’s focus was on a set of problems that defied containment within either international or domestic law fields as then understood. 

Since the 1950s, the use of the term transnational law has become increasingly popular, though any consensus on its meaning remains elusive within the global academic community.  For some leading academic writers, transnational law is best characterized as a series of special problems within the broader field of international law.   They emphasize the transborder elements of the problems conceptualized as containing a “transnational element” and suggest that this places those problems within the realm of law other than domestic, and thus, international, law.  But international law focuses on the law among states.  Though it has broadened its scope in recent years, it is still tied to a series of basic assumptions about the location of regulatory power, the relationship of states to individuals and to each other, and the construction of law in general that makes it awkward, at best, to include within its scope emerging private law systems, self regulatory frameworks of governance, direct effects of international law on individuals and entities, and the construction, at the transnational level, of increasingly autonomous entities with regulatory and dispute resolution power.  Subsuming the study of these systems within traditional international law would overwhelm its traditional focus; it would become something it was not.  

Other leading academics argue that the set of problems that Jessup conceptualized as transnational can be characterized as a set of special problems of comparative law.  These academics emphasize the strong horizontal focus of transnational law “problems” and “effects.”  They suggest that transnational law is a specialized form of the sort of efforts at harmonization that has been at the core of the comparative law project since its inception in the early years of the 20th century.   But comparative law focuses on the law of states—it looks to convergence, harmonization, resistance, fracture, communication, transposition, knowledge and understanding.  Thus, comparative law’s keen focus on the national level of law making makes comparative law as limiting a field within which to study the problems of transnational law as under the norm structures of traditional international law.  The comparative law focus necessarily obscures the international elements of transnational regulation, and regulatory power sharing among national, sub national, and international public and private actors, all operating within a framework not easily contained within the traditional projects of the field of comparative law.  To subsume transnational law “elements” within comparative law is to transform comparative law beyond recognition.  That some leading academics have proposed this very transformation of comparative law evidences the differences between them rather than the character of transnational law as somehow encompassed within comparative law.

Is Transnational Law concerned primarily with issues of conflicts of laws and choice of law?

    No.   Like all fields of law, choice of law is an integral part of the study of transnational law.  Like other fields, the relationships between it and other fields, the borderlands of fields, is a critically important element in understanding the character and nature of transnational law.  Just as the boundaries between contract, property, and tort have assumed an increasingly important place within the development of those fields, so the borderlands between transnational, comparative and international law will serve as important a part of the study of each of these fields.  In addition, transnational law includes within it a number of substantive areas of law:  commercial law, the law of dispute resolution, the law of political sovereignty within and outside of political territories controlled by any government, and portions of what is understood as human rights law.  Transnational law, like conflicts of law within multi-jurisdictional states, is also significantly concerned with jurisdiction.  Transnational Law is focused on agreement—for any complex system of multiple regulatory regimes to be effective, there must be agreement among the stakeholders with respect to what binds them in any situation, whether it be, for example, a commercial transaction, a human rights issue, dispute resolution procedures, or some other matter beyond the sole competence of domestic law. This is not conflict (or choice) of law as traditionally understood, but perhaps something sui generis: the development of rules of legal hierarchy and applicability of law where regulatory power is not merely vertically arranged, but also horizontally divided by function, community and territory simultaneously.  A more complicated and multiple jurisdictional framework requires a different sort of approach to its understanding and to the resolution of issues that arise in its application to individuals, entities states and organizations. 

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