New Paper Posted: The 'Cri de Jessup' Sixty Years Later: Transnational Law’s Intangible Objects and Abstracted Frameworks Beyond Nation, Enterprise, and Law

(Pix © Larry Catá Backer 2019)

I have just posted a draft of a new essay: "The Cri de Jessup Sixty Years Later: Transnational Law’s Intangible Objects and Abstracted Frameworks Beyond Nation, Enterprise, and Law." It was drafted for what is going to be a set of marvelous essays commemorating the 60th anniversary of the publication by Philip Jessup of his germinal work on transnational law. The essays were drawn from presentations made at an event organized by the remarkable Peer Zumbansen which took place in 2016 at the Dickson Poon School of Law of King's College and its Transnational Law Institute.

The Abstract and Introduction follow along with links for accessing the full essay. As always comments and engagement warmly welcomed.

The Cri de Jessup Sixty Years Later: Transnational Law’s Intangible Objects and Abstracted Frameworks Beyond Nation, Enterprise, and Law

Larry Catá Backer[1]

Forthcoming in Peer Zumbansen (ed.), Jessup’s Bold Proposal. Critical Engagements with Transnational Law (Cambridge UP, 2019)

Coalition for Peace & Ethics Working Paper 3/1 (March 2019)

Abstract: This essay starts with “Transnational Law as Manifesto.” It explores the contemporary approach to transnational law and its more radical possibilities. These possibilities are radical not in the sense of requiring a substantial break with the past but in the sense of suggesting the ways in which Jessup’s vision ultimately requires a shifting of perspectives about the relationship of law to the state, the state the societal sphere, and both to transnational law and the multinational enterprise. The essay then considers “Jessup’s Big Bang and Beyond.” This section, then, starts with Jessup’s core premise—that the transnational is situational, ad hoc nature, and residual, in the sense that the transnational is what is left when no traditional legal order is available. It considers the templates that have grown up around that situational and ad hoc approach to the transnational, and then briefly considers the power of this template and its multiple current manifestations when speaking to the transnational enterprise. The last section, “From Transnational Law to the Law of Transnational Spaces,” considers the parallel development of the problem of transnational law and the transnational enterprise. To that end, it applies the Actor-Network-Process framework inward within and to the enterprise. It ends by suggesting that while the development of transnational law and the transnational enterprise have come very far, neither has moved very much from the conceptual orbit of an ideology that conflates law and the state.

“We have learned that history is something that takes no notice whatever of our expectations.”[2]
“Revolutionaries learn from one another, even if they aim for different goals.”[3]

I. The Cri de Jessup.

In 2016 the Dickson Poon School, its Transnational Law Institute and its director, my friend and colleague Peer Zumbansen, brought together a group of scholars on the occasion of the School’s TLI inauguration.[4] The event concluded with an international conference organized by TLI to commemorate the 60th anniversary of the publication of Philip Jessup’s landmark study, “Transnational Law.”[5] This chapter grew out of the challenge at the core of that Conference—to again take up Jessup’s cri de guerre, or better put, its cri de Valmy from which one could date a new era in the history of the world.[6] This chapter takes up that challenge at yet another transitional moment in history, but one no longer comfortably well nestled within an orthodox consensus of a trajectory of development of regulatory orders[7] that have threatened old international law and international relations orthodoxies.[8]

Sixty years ago, the original Cri de Jessup gave the transnational within law the means to distinguish itself from other legal orders.[9] It gave form to what might have morphed into a liberation movement of sorts from orthodoxy in law,[10] inspiring a generation of those who followed Jessup to advance this globalizing extra-sovereign movement against the colonialism and imperialism of statist legal orthodoxy. [11] Yet even sixty years after the Cri de Jessup the transnational remains tied from its moorings in ancient conceptions of nation, of enterprise, and of law. Sixty years after Jessup’s first effort at liberation, is it still possible to be driven by Jessup’s transnational ululations?

This contribution starts with “Transnational Law as Manifesto.” It explores the contemporary approach to transnational law and its more radical possibilities. These possibilities are radical not in the sense of requiring a substantial break with the past but in the sense of suggesting the ways in which Jessup’s vision ultimately requires a shifting of perspectives about the relationship of law to the state, the state the societal sphere, and both to transnational law and the multinational enterprise. The contribution then considers “Jessup’s Big Bang and Beyond.” This section, then, starts with Jessup’s core premise—that the transnational is situational, ad hoc nature, and residual, in the sense that the transnational is what is left when no traditional legal order is available. It first considers the templates that have grown up around that situational and ad hoc approach to the transnational, one firmly anchored in the shadow of the state and its legal regimes. It then briefly considers the power of this template and its multiple current manifestations when speaking to the transnational enterprise.

The last section, “From Transnational Law to the Law of Transnational Spaces,” considers the parallel development of the problem of transnational law and the transnational enterprise. To that end, it applies the Actor-Network-Process framework inward within and to the enterprise. Like transnational law itself, the transnational enterprise under this framework might be simultaneously assumed to be an object external to law, an autonomous system internalizing framework for law; and as a reconstitution of production chains and the object of those chains themselves. That, in turn, suggests a progression from the most orthodox theoretical foundation (and the one most compatible with the current consensus on framing transnational law) to the least conventional perspective. It ends by suggesting that while the development of transnational law and the transnational enterprise have come very far, neither has moved very much from the conceptual orbit of an ideology that conflates law and the state. Both transnational law, as a governance order, and the transnational enterprise, as a management order, remain at the margins of an ideology the core object of which is to protect the integrity of a system that preserves an identity between state and law, and that seeing in both transnational law and the transnational enterprise a means of filling gaps. Both transnational law and enterprise serve as a complement to domestic legal orders and its territorial boundaries. They are the embodiment of the law and space of the “in-between;” and absent the reorientation of perspective suggested in the opening section, will remain at the margins of law and institutional governance.

[1] W. Richard and Mary Eshelman Faculty Scholar Professor of Law and International Affairs, Pennsylvania State University. My thanks to Miaoqiang Dai (SIA MIA expected May 2019), and Bethany Salgado )SIA MIA expected May 2010) for their excellent research assistance on this project.


[2] Oswald Spengler, Man and Technics: A Contribution to a Philosophy of Life (Alfred A. Knopf, 1963 (1932))


[3] Ralf Michaels, The New European Choice of Law Revolution, 82(5) Tulane Law Review 1607-1644, 1644 (2008).


[4] “Transnational Law: What's in a Name?,” Symposium held 27 April 2016 to celebrate the inauguration of the Transnational Law Institute, available https://www.kcl.ac.uk/law/newsevents/newsrecords/tli/transnational-law-whats-in-a-name?TaxonomyKey=0/1/2/17.


[5] Philip C. Jessup, Transnational Law (Yale University Press, 1956).


[6] Georges Gusdorf, Le Cri de Valmy, 45 Communications 117-155 (1987) (“Image d'Epinal. En haut de la colline, devant le moulin qui la couronne, le général Kellermann, chapeau brandi à la pointe du sabre, se dresse sur ses étriers, et de toute la force de sa voix crie : « Vive la nation 1 » Cri aussitôt repris par la masse des troupes rangées en bataille derrière le commandant en chef. En ce 20 septembre 1792, le cri de Valmy possède une valeur emblématique si puissante que Goethe, correspondant de guerre dans l'armée d'en face et témoin de l'incident, croit pouvoir dater de ce moment une nouvelle ère dans l'histoire du monde.” Ibid., 155)


[7] Larry Catá Backer, Economic Globalization Ascendant: Four Perspectives on the Emerging Ideology of the State in the New Global Order, 17(1) Berkeley La Raza Law Journal 141 (2006).


[8] Adam Irish, Charlotte Ku & Paul F. Diehl, Bridging the International Law-International Relations Divide: Taking Stock of Progress, 41 Georgia Journal of International & Comparative Law 357-388 (2013).


[9] Gralf-Peter Calliess and Peer Zumbansen, Rough Consensus and Running Code: A Theory of Transnational Private Law (Hart Publishing: Oxford, 2010); Gregory Shaffer (ed.), Transnational Legal Ordering and State Change (Cambridge University Press, 2013).


[10] Larry Catá Backer, The Emerging Normative Structures of Transnational Law: Non-State Enterprises in Polycentric Asymmetric Global Orders, 31 BYU J. Pub.L. 1 (2016).


[11] Lawrence M. Friedman, Borders: On the Emerging Sociology of Transnational Law, 32 Stan. J. Int'l L. 65 (1996). Yet it is important to understand subtext; law, like other social systems, is subject to the dynamics of dependencies on a metropolitan center. See, Frantz Fanon, Black Skin, White Masks (Charles Lam Markmann, trans.: Grove Press, 1967 (1952)). Cf. Martin T. Berger, Decolonisation, Modernisation and Nation-Building: Political Development Theory and the Appeal of Communism in Southeast Asia, 1945-1975, 34:3 Journal of Southeast Asian Studies 421-448 (2003)