Can Transnational Law Be Critical? Reflections on a Contested Idea, Field & Method

Abstract

This paper offers a few reflections on the state of transnational law and transnational legal theory at a time, in which the jury still is out with regard to its verdict on whether transnational law should be considered a field, a concept, or a (likely pro-market, neoliberal) ideology. Casting doubts on TL either in terms of being a neatly demarcated and regularly adjudicated field of doctrinal law or as a conceptual elaboration which we would locate somewhere between private and public international law in the way outlined by Philip Jessup in the 1950s, the paper sets out to take seriously the lingering and persistent claims which situate TL in the greater transformation of state-based, political governance of economic affairs and the continuing trend towards privatization and corporate ownership of formerly public regulatory prerogatives. Seen as part of a whole-scale shift to private governance, forum-shopping and the curtailing of state intervention, TL is today often squarely associated with an intensifying constellation of globalized markets in which the authority of regulatory agency has widely shifted to private actors. Acknowledging the weight of such assumptions, we not only need to reconsider law’s and legal theory’ receptivity to normative critique but also trace, more carefully, the lines of these longstanding concerns about TL. In the first instance, TL seems to have forever been prompting negative reactions to what is believed to be its fundamentally neo-liberal normative orientation. Often understood as a field of law embodying the neoliberal roll-back of state-based, democratically generated legal institutions, rights and safe-guards in favor of a system in which the ‘winner takes all’ and where law, along with other power-sustaining institutional frameworks, merely serves to empower a small fraction of society, TL appears to have been off to a bad start.

But in response, rather than trying to ‘push back’ against TL with the goal of mobilizing an alternative legal framework, this paper calls for a critical engagement with TL and for a critical resistance of TL’s neoliberal potentials. Through an engagement with these concerns and by proposing a reassessment of legal theory in the context of critical social and political theory, the paper will test TL’s ability to provide a robust methodological framework for a critical legal theory in today’s global, neoliberal constellation.

Keywords: Transnational Law, Critical Theory, Global Governance, Legal Pluralism, Postcolonial Theory, Cultural Studies, International Law