Where the Wild Things are: Journeys to Transnational Legal Orders, and Back

Abstract

The continuing and comprehensive transnationalization of governance regimes, that is the decentering of state governments and public international organizations (IOs) through hybrid, public-private and domestic-international Actors, Norms and Processes in a vast array of regulatory fields has put both private and public lawyers on alert. While the former continue to remain skeptical with regard to governmental attempts at reclaiming control over economically sensitive areas, the latter insist on the need to strengthen and revitalize the state’s role in protecting precarious, weak interests even beyond the traditional jurisdictional confines of the nation-state. Seen from that perspective, transnational governance (TG) is an object of study as well as of hope for some, of grave concern for others, and that already from a domestic lawyer’s perspective. Meanwhile, while TG has provoked varied reactions from particularly those public international lawyers who either defend or dismiss the potential of constitutional ordering on the global level, it has also prompted responses from political scientists, who speculate about the fate of concepts and institutions that were central to International Relations, Regime Theory and debates about sovereignty. The here presented paper aims at connecting these different debates by making reference, in particular to Terrence Halliday’s and Gregory Shaffer’s proposal of “Transnational Legal Ordering”, on the one hand, and by carving out the different connotations of legitimacy which are becoming apparent in each of these debates, on the other. Against this background, the paper posits ‘transnational law’ as a methodological approach through which connections between “domestic” and “transnational” governance can be made visible and subjected to conceptual and normative scrutiny.

Keywords: Transnational Legal Ordering, Transnational Law, Rule of Law, Constitutionalism, Transnational Private Regulatory Governance, Public-Private-Distinction, Global Law.