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Transnational Legal Pluralism


Peer C Zumbansen


Dickson Poon School of Law - King's College London

January 26, 2010

Transnational Legal Theory, Vol. 10, No. 2, pp. 141-189, 2010
CLPE Research Paper No. 01/2010

Abstract:     
This paper draws out the analogies and connections between long-standing legal sociological insights into pluralistic legal orders and present concerns with the fragmentation of law outside of the nation state. Within the nation-state, the discovery of legal pluralism inspired a larger contestation of concepts of legal formalism, of the alleged unity of the legal order and of the hierarchy of norms against the background of a consistently advancing process of constitutionalization. This research heightened regulators’ sensitivity to blind spots and exclusionary dynamics in the design of rights, leading inter alia to wide-ranging efforts to render more effective access to justice, legal aid and legal representation. Another important consequence concerned an increased awareness of different levels and sites of norm-creation in various societal areas. Much of this is mirrored by today’s quest for a just, democratic and equitable global legal order, for example in the debate about ‘fragmentation of international law’ or ‘global administrative law’. But, while the legal pluralism debate largely unfolded in the context (and contestation) of relatively mature legal orders and institutions, such institutional frameworks and safeguards are largely absent on the international plane. As a result, the emergence of numerous norm-setting agencies, specialized courts and tribunals and regulatory networks are perceived as obstacles or impediments to the creation of a sound legal order on a global scale, rather than as inherent traits of an evolving legal order.

In order to grasp the increasingly transterritorial nature of regulatory governance it is necessary to revisit the arguments in support of legal pluralism and, in particular, the legal pluralist critique of the association of law with the state. On that basis, it becomes possible to read the currently dominant narrative of the ‘end of law’ in an era of globalisation in a different light. Rather than describing the advent of globalisation as an end-point of legal development, the transnational perspective seeks to deconstruct the various law-state associations by understanding the evolution of law in relation and response to the development of ‘world society’. The currently lamented lack of democratic accountability, say, in international economic governance, can then be perceived as a further consequence in a highly differentiated and de-territorialized society. The paper thus rejects the attempts by lawyers to re-align transnational governance actors with traditional concepts of the state or of civil society and, instead, contrasts them with various advances in sociology and anthropology with regard to the evolution of ‘social norms’ and ‘spaces’ of governance and regulation. These perspectives effectively challenge present attempts to conceptualize a hierarchically structured global legal order. This article’s proposed concept of ‘transnational legal pluralism’ [TLP] goes beyond Philip Jessup’s 1956 idea of ‘transnational law’, through which he sought to both complement and challenge Public and Private International Law. TLP brings together insights from legal sociology and legal theory with research on global justice, ethics and regulatory governance to illustrate the transnational nature of law and regulation, always pushing against the various claims to legal unity and hierarchy made over time.

Number of Pages in PDF File: 58

Keywords: Legal Pluralism, Fragmentation of law, Regulatory Governance, Transnational Law, Private Governance Regimes, Regulatory Networks, Rough Consensus and Running Code

JEL Classification: K20, K22, K33

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Date posted: January 27, 2010 ; Last revised: October 26, 2014

Suggested Citation

Zumbansen, Peer C, Transnational Legal Pluralism (January 26, 2010). Transnational Legal Theory, Vol. 10, No. 2, pp. 141-189, 2010; CLPE Research Paper No. 01/2010 . Available at SSRN: http://ssrn.com/abstract=1542907

Contact Information

Peer C Zumbansen (Contact Author)
Dickson Poon School of Law - King's College London ( email )
Somerset House East Wing
Strand
London, WC2R 2LS
United Kingdom
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