Lochner Disembedded: The Anxieties of Law in a Global Context

Abstract:     
This paper explores, in an inevitably cursory manner, some of the main challenges facing a legal theory of transnational governance today. In part building on and responding to William Twining’s identification of key problems of law in a global context (2009; 2012), the following essay adopts a two-fold approach. One element is to suggest a conceptual architecture, which captures law in its transformational state through a focus on 'actors, norms, and processes.' Secondly, the essay proposes 'case studies' as a central methodological device to explore the nature, scope, function of governance – both legal but also non-legal governance – in a global context. Through the identification of 'cases' in global governance such as, but not limited to, examples of human rights violations around multinational engagements in developing countries or conflicts between indigenous peoples and the rights governing the extraction industry, as well as the role of non-state actors in financial regulation, the essay engages with the structural and institutional changes that characterize legal regulation in a transnational context today. The essay posits the significance of identifying links between newly emerging, transnational cases and seminal cases from the nation-state experience in order to trace the continuance of dilemmas arising out of 'tough questions,' 'old wounds' and 'hard cases.' The U.S. Supreme Court’s 1905 decision in Lochner v. New York serves as backdrop and reference for pertinent, but increasingly challenged approaches to the identification of interests and rights in a social conflict.

Number of Pages in PDF File: 29

Keywords: Global Governance, Transnational Law, Legal Pluralism, Lochner, Jurisdiction, Anthropology, Legal Theory, Human Rights, Interdisciplinarity

Accepted Paper Series