The Concept of Law from a Transnational Perspective
Detlef von Daniels
Sign up for access to the world's latest research
checkGet notified about relevant papers
checkSave papers to use in your research
checkJoin the discussion with peers
checkTrack your impact
Abstract
Short summary of my book
Related papers
Global/Transnational Laww Challenges to Theorizing about Law
SSRN Electronic Journal, 2017
introduced the term "transnational situation", which "may involve individuals, corporations, states, organization of states, or other groups." Ibid., 3. 5 Jessup argued that while " [a] problem may also be resolved not by the application of law", the results arrived at "may have legal effect and be in legal form." Ibid., 7. nuanced investigation about the nature of different phenomena that do not pass the threshold of "legality". This, finally, implies that calls to substitute analyticity and criterialism with some sort of legal pluralist approach, which self-consciously blurs the lines between law and non-law, should be abandoned in favor of a refined analytical approach, which relies on a different sort of socio-legal investigation, the one that treats law as a normative order that is a product of specific historical development and that is as such in interaction with other social normative orders. Any case for global/transnational law proceeds from suspicion in the sustainability of the dominant conceptual framework which knows only of municipal and international law. However, Jessup's worry that we are in "the lack of an appropriate word or term" for the rules governing "transnational situations" 7 may not be the biggest problem for legal scholarship. Some authors are ready to argue that the problem is not merely of the terminological nature, but that we are essentially dealing with a very new concept of law. Hence, Zumbansen says that "TL presents a radical challenge to all theorizing about law as it reminds us of the very fragility and unattainedness of law … TL works itself like a drill through the few remaining blankets covers hastily thrown over an impoverished and internally decaying conceptual body." 8 A common starting point for this stronger case is to emphasize that one of the dominant features of the modern concept of law is its connectedness to state. As put by Avbelj, "[t]he state has long been considered a main, if not the exclusive source and operating theatre of law." 9 Since a host of regulatory activities at the global level "does not originate, directly or indirectly, from the organs of the state", we are warranted not only in employing the term "transnational law" to denote those activities, but also in speaking about a novel concept of law that is a product of post-modernity. 10 Simply put, this new 7
What Is Transnational Law?
Law & Social Inquiry, 2012
Is it important to conceptualize transnational law and “map” it as a new legal field? This article suggests that to do so might help both juristic practice and sociolegal scholarship in organizing, linking, and comparing disparate but increasingly significant types of regulation. To explore the idea of transnational law is to raise basic questions about the nature of both “law” and “society” (taken as the realm law regulates). This involves radically rethinking relationships between the public and the private, between law and state, and between different sources of law and legal authority. Taking as its focus Von Daniels's The Concept of Law from a Transnational Perspective and Calliess and Zumbansen's Rough Consensus and Running Code (both 2010), the article considers what approaches may be most productive, and what key issues need to be addressed, to make sense of broad trends in law's extension beyond the boundaries of nation-states.
Why Global Law is Transnational
Transnational Legal Theory, 2013
Professor William Twining loves puzzles. And he is fine that his energy is spent on puzzles of which he will probably never have all the pieces. The point seems to be the act of puzzling itself, the identification of pieces and the appreciation of their shape in an attempt to understand their place in the bigger picture. In that vein, he observes the subjects of his scholarship not only through books but through his own perception, involvement and experience. His scholarly work and academic teaching have taken him practically everywhere, engaging with the world, and with concepts and conundra, with a particular sense of modesty, § This short text serves as the introduction to Transnational Legal Theory's Symposium on William Twining's
Transnational Law: An Essay in Definition with a Polemic Addendum
What is transnational law? Various procedures and theories have emanated from this slippery signifier, but in general academics and legal practitioners who use the term have settled on certain common meanings for it. My purpose in this article is not to disrupt but to clarify these meanings by turning to literary theory and criticism that regularly address transnationality. Cultural and postcolonial studies are the particular strains of literary theory and criticism to which I will attend. To review “transnational law,” examining its literary inertia and significations, is the objective of this article, which does not purport to settle the matter of denotation. Rather, this article is an essay in definition, a quest for etymological precision. Its take on transnationalism will rely not so much on works of literature (novels, plays, poems, drama, and so forth) but on works of literary theory and criticism. It will reference literary critics as wide-ranging as George Orwell, Kenneth Burke, and Edward Said. It will explore the “trans” prefix as a supplantation of the “post” prefix. The first section of this article, “Nationalism,” will examine the concept of nationalism that transnationalism replaced. A proper understanding of transnational law is not possible without a look at its most prominent antecedent. The first section, then, will not explore what transnationalism is; it will explore what transnationalism is not. The second section, “Transnationalism,” will piece together the assemblages of thought comprising transnationalist studies. This section will then narrow the subject of transnationalism to transnational law. Here I will attempt to squeeze several broad themes and ideals into comprehensible explanations, hopefully without oversimplifying; here also I will tighten our understanding of transitional law into something of a definition. Having tentatively defined transnational law, I will, in section three, “Against the New Imperialism,” address some critiques of capitalism by those cultural critics who celebrate the transnational turn in global law and politics. Although I share these critics’ enthusiasm for transnational law, I see capitalism - another hazy construct that will require further clarification - as a good thing, not as a repressive ideology that serves the wants and needs of the hegemonic or elite.
’Global/Transnational Law’ Challenges to Theorizing About Law
Global/transnational “law” discourse seems to be premised on two important assumptions: first, that the empirical reality of the present day globalized world requires moving beyond the traditional concept of international law, because it no longer successfully depicts the nature of “raw data” of various regulatory and adjudicative phenomena taking place at the transnational level; and second, that the analytical rigor of the long dominant positivist strand of jurisprudence, which insists on the criterial approach to law and its autonomous status, nowadays contributes more to the obfuscation than to the clarification of its subject matter. Both of these assumptions lead to the claims that significantly challenge our traditional theorizing about law. According to the first – substantive – challenge, global/transnational phenomena give rise to the birth of a novel, non-statist and post-modern concept of law. According to the second – epistemological – challenge, the nature of the inquired phenomena requires adopting new research strategies which goes beyond the traditional method of the dominant analytical jurisprudence. I will scrutinize both of these challenges. As regards the first of them, I will show that while the strong claim that we are in the possession of some entirely novel concept of (global/transnational) law is not warranted, more modest claims regarding functional sphere of validity and genuinely new (global/transnational) sources of law merit significant weight. When it comes to the second claim, I will argue that the obsession with “law” as the “default descriptor” (Somek) for various global instruments of regulation and standardization stems largely from the erroneous assumption about the special, i.e. “exclusionary” nature of legal rules. Once the direct link between legal “normativity”, “validity”, and “bindingness” is exposed as unsubstantiated, the path is cleared for a more nuanced investigation about the nature of different phenomena that do not pass the threshold of “legality”. This, finally, implies that calls to substitute analyticity and criterialism with some sort of legal pluralist approach, which self-consciously blurs the lines between law and non-law, should be abandoned in favor of a refined analytical approach, which relies on a different sort of socio-legal investigation, the one that treats law as a normative order that is a product of specific historical development and that is as such in interaction with other social normative orders.
Law Across Borders, Routledge, 2012 - Chapter One
Chapter One of my book.
Law as a Eurocentric Enterprise
Law and Inequality, 1997
I would like to thank the participants at that conference, in particular Peter Fitzpatrick, for their helpful comments. I would also like to thank Pedro Malavet for lending me materials on comparative international law, Drs. M. Patricia E. Hilliard Nunn and Asa G. Hilliard, III for inspiration and support, and the editors of Law and Inequality: A Journal of Theory and Practice for their diligence, openmindedness and courage. 1. JAHNHEINZ JAHN, MUNTU: AFRICAN CULTURE AND THE WESTERN WORLD 23 (Majorie Grene trans., Grove Weidenfeld 1990) (1958) (exploring the primary assumptions and principles upon which African world-view and culture are based) (quoting FRANTZ FANON, PEAU NOIRE MASQUES BLANCS 125 (1952)). 2. Chief among these are legal realism and its various contemporary descendants.
Transnational Communities and the Concept of Law
Ratio Juris, 2008
The proliferation of forms of transnational regulation, often unclear in their relation to the law of nation states but also, in some cases, claiming authority as "law," suggests that the concept of law should be reconsidered in the light of processes associated with globalisation. This article identifies matters to be taken into account in any such reconsideration: in particular, ideas of legal pluralism, of degrees of legalisation, and of relative legal authority. Regulatory authority should be seen as ultimately based in the diverse moral conditions of the networks of community which regulation serves. * This article is based on the text of a paper given at a colloquium on "Globalisation and the International Community" at the University of London Institute in Paris on April 14, 2007. I am grateful especially to André-Jean Arnaud for valuable comments.
Socio-legal Studies in a Transnational World
Recht der Werkelijkheid 32 (2011) 3, p. 3-7., 2011
The concept of transnationalism refers to border-crossing activities and social relations, such as family relations, migration, international trade and international organisations. This special issue looks at the relevance of such developments to socio-legal studies. Of course, transnationalism is hardly a new phenomenon. Colonialism could be seen as a transnational legal process on a vast scale and what could be called transnational advocacy networks emerged as early as the 18th century (e.g., the anti-slavery movement with ties between Haiti, Great Britain, and France).2 However, the extent to which transnational developments are now occurring is new and characteristic of modern times. The transnational effects of events, situations and actions are nowadays supposed to arise more rapidly, directly and powerfully than in the past. In the introduction to this special issue we explain the relevance of transnationalism to socio-legal studies and the usefulness of the sociology of law for studying transnational law and transnational processes; we also discuss three challenges that transnationalism poses for the sociology of law.
Globalization & the Law. Syllabus. Winter 2015. Osgoode Hall Law School, York University
This seminar interrogates law's relationship with capitalism and colonialism by studying the political, social, and economic structures produced by international legal institutions, and how social movements have deployed law to resist the changing forms of contemporary global capitalism. The first theme of the course addresses 'structures' of international law. It examines the way in which law produces structural relationships impacting issues pertaining to race, gender, and class. These relationships are most clearly manifested through the various interventions of international institutions in the global south. Therefore, students will reflect on the historical relationship between international legal institutions and colonial, and neo-colonial practices. The second theme of the course addresses resistance against these structures. In particular, it focuses on the 'agency' of diverse social movements, from the Arab revolutions, to the Occupy Movement, to anti-austerity movements in Greece, to the Quebec Student Strike, and Idle No More. More specifically, we will look at how social movements use the law, and the legal system in defence of their struggles. The third theme in the course draws all this together, by presenting different theoretical approaches from the various strands of the critical legal tradition(s) (such as: feminist, and queer legal theory, critical race theory, Third World Approaches to International Law, etc. …). These are intended to provide the analytical toolkit necessary to reflect on, and respond to the materials of the course.
Globalization of Law
Annual Review of Sociology, 2006
Globalization of law may be defined as the worldwide progression of transnational legal structures and discourses along the dimensions of extensity, intensity, velocity, and impact. We propose that a theory of the global penetration of law will require at least four elements ...
Globalization and Law: Law Beyond the State
The chapter provides an introduction into law and globalization for sociolegal studies. Instead of treating globalization as an external factor that impacts the law, globalization and law are here viewed as intertwined. I suggest that three types of globalization should be distinguished — globalization as empirical phenomenon, globalization as theory, and globalization as ideology. I go on to discuss one central theme of globalization, namely in what way society, and therefore law, move beyond the state. This is done along the three classical elements of the state — territory, population/citizenship, and government. The role of all of these elements is shifting, suggesting we need to move away from the traditional paradigm of both social and legal studies: methodological nationalism. I do not answer here how this paradigm should be replaced, but I discuss one prominent candidate of a meta-theory: transnational law. Transnational law, I suggest, helps transcend dichotomies of methodo...
Epilogue Difficulties for Every Solution Defining Transnational Law at the Edge of Transdisciplinarity
The Many Lives of Transnational Law: Critical Engagements with Jessup’s Bold Proposal. Edited by Peer Zumbansen, Cambridge University Press, 2020
his is an epilogue to a volume commemorating 60 years since Philip Jessup’s “definition” of Transnational Law. Unsurpassed for its citablity and quotability, Jessup's concept was nonetheless formed within a particular context of intellectual history. It has inspired three intellectual projects, called here Transnational Legal Process, Transnational Legal Theory and Transnational Legal Orders. This book is most clearly a mapping and an itinerary of the middle category, Transnational Legal Theory. The distance traveled between Jessup’s conception and the one presented here is most evident in a new definition offered in the Introduction by its editor which rather than acting as a prompt or a distillation, is an unpacking of the essential features of Transnational Law as an critical and intellectual project. Along with its rival itineraries, its moves toward interdisicplinarity, criticality, and legal pluralism move us not towards a consensus concept, but a transdisciplinary horizon.
Transnational Law as Socio-Legal Theory and Critique: Prospects for “Law and Society” in a Divided World
2019
Bobbi: if you look at love as something other than an interpersonal phenomenon Bobbi: and try to understand it as a social value system Bobbi: it's both antithetical to capitalism, in that it challenges the axiom of selfishness Bobbi: which dictates the whole logic of inequality Bobbi: and yet also it's subservient and facilitatory Bobbi: i.e. mothers selflessly raising children without any profit motive Bobbi: which seems to contradict the demands of the market at one level Bobbi: and yet actually functions to provide workers for free me: yes me: capitalism harnesses "love" for profit me: love is the discursive practice and unpaid labor is the effect me: but I mean, I get that, I'm anti love as such Bobbi: that's vapid Frances
Transnational Constitutional Law
SSRN Electronic Journal, 2018
This chapter provides an overview of the emerging field of transnational constitutional law (TCL). Whilst questions of constitutional law are typically discussed in the context of a specific domestic legal setting, a salient premise of TCL is to view constitutional law and its values by placing them 'in context' with existing and evolving cultural norms and political, social and economic discourses and struggles. Drawing on socio-legal investigations into the relationships between law and non-law and the significance of legal pluralism, TCL considers what role constitutional law and its values might play in shaping and bringing about social and legal transformation within an emerging global economic order in which non-territorially confined spaces of struggle involve transnational actors and social formation dynamics. TCL thus emerges out of constitutional law in a transnational legal context. Based on Zumbansen's concept of Transnational Law (TL) as a methodological framework to study the Actors, Norms and Processes of legal formations in a global context, rather than positing TL as a distinct legal field, we examine transnational constitutional law phenomena in their social, political and economic contexts. This allows us to revisit and reassess well-known constitutional law concepts such as the rule of law, equality and access to justice in a new light, in particular where we confrontin this paperlegacies of these concepts in both the Global North and South. This engagement renders visible lived experiences of constitutional law and constitutionalism in local and transnational contexts, drawing attention to the growing number of those who have, through processes of globalisation, fallen out of, or were never made party to, the Western 'social contract'. We present TCL as emerging on two levels. On a macro level, studies of comparative constitutional law and post-colonial approaches to law shine light on processes of globalisation and financialization as they manifest themselves in conflictual dynamics within trade law, and international human rights law, with regard to civil, socio-economic and cultural rights. TCL also emerges on a micro level through careful ethnographic and anthropological studies that examine different forms of what Saskia Sassen persuasively coined "Expulsions", meaning struggles and resistance against different forms of expropriation, eviction or alienation, within volatile economic and political landscapes. Finally, our transnational critique of the 'rule of law' reflects our hope for a 'thick' and historically reflective RoL concept. In contrast to an idealised rendering of a pret-à-porter, universal rule of law, we argue for the continued need to explore transnational constitutional methodologies which are sufficiently differentiated to capture the manifold manifestations of constitutional conflicts, locally and spatially. The here presented case study applies this TCL approach to the struggle for indigenous identity, land rights and consultation.
Introduction to "Symposium on Cosmopolitan Law and the Courts" - Transnational Legal Theory 2016
The thesis of a "cosmopolitan turn" of a state's constitutionalism has quite extensively influenced the debate over the contemporary transformation of international law. 1 A Copernican revolution of sorts, it has consisted not only of a phenomenological shift, but also of the creation of a new paradigm for the definition of legitimate domestic orders. The cosmopolitan turn has also run parallel to the constitutionalization of international law. Here, constitutionalization is neither simply a process of legalization nor, obviously, a constitution as such. 2 This is due to the fact that constitutionalization implies a number of processes which international law undergoes together with a multiplicity of purposes that are served therewith. It indicates the transformation of bilateral or multilateral agreements into higher order principles of wider scope. In order for this transformation to be possible, a shift in reasoning should precede, one moving away from an instrumental, technocratic form into a value-based approach of legal reasoning. This value inclusion within legal thinking is what the term "constitutionalism" aims to capture. As a mode of reasoning -as a "mindset" -constitutionalism subordinates laws to values such as those of equality, human dignity, or freedom. 3 Constitutionalism though indicates also a process of self-reflexivity. It
Global perspective of law -theoretical approach from three points of view
Security and Globalization in the Context of European Integration. Legal Aspects, 2017
From the legal perspective, the key question is whether globalization processes are likely to lead to the emergence of a global society and a global law. Global law should be understood as a legal system separate from domestic, regional and international law. How will this global law work? To answer these questions, it is necessary to invoke the notions of a global society and a global public domain. Many authors recognize global society as the key reference point when drawing conclusions about the future directions of globalization. From a legal point of view, it is important to portray the characteristic features of the global public domain (sphere). This articles investigates the impact of globalization on key areas: the state as a global actor, the global public space, and the position of individuals in this space.
Related topics
Loading Preview
Sorry, preview is currently unavailable. You can download the paper by clicking the button above.