Panglossian Transnationalism

Abstract:     
Transnationalism represents a major leap forward in our understanding of events that cross national borders. At the same time, though, the transnational approach is woefully incomplete. Students looking for intellectual coherence are frequently disappointed. And even a cursory glance at news headlines makes it abundantly clear that despite this major conceptual advance, the world has not become any happier. I worry that transnational law has become too optimistic, perhaps even na¿ve, about what it can accomplish.

The argument is structured in three parts. Part I simply seeks to understand what transnational law actually means, by developing a typology that systematizes not only sources of law, but actors engaged in cross-border events. Part II attempts to draw three principal lessons from this reality: (i) transnational law for all of its glamour, is often little more than national law applied to cross-border events; (ii) forays beyond the national have too often been either been ineffectual or perceived as disenfranchising; and (iii) the transnational approach is being hampered by its reliance on liberalism and process theory.

Part III argues for a counterintuitive and ironic proposition: comparatists may provide a path forward for transnationalism. The comparative method presents precisely the tools that lead to a deeper understanding of the similarities and differences among national laws, and between national laws and other constructs such as supranational and international law. Only through understanding this reality can we begin to renew our justifications for the legitimacy of meaningful international law and institutions.

Keywords: transnational law, international law, comparative law, legal theory

JEL Classifications: K33, N40, P50, O19

Accepted Paper Series