Spectres of Transnationalism: Changing Terrains of Sociology of Law

Abstract

The growth of 'legal transnationalism' - that is, the reach of law across nation-state borders and the impact of external political and legal pressures on nation-state law - undermines the main foundations of sociology of law. Modern sociology of law has assumed an 'instrumentalist' view of law as an agency of the modern directive state, but now it has to adjust to the state's increasingly complex regulatory conditions. The kind of convergence theory that underpins analysis of much legal transnationalism is inadequate for sociolegal theory, and old ideas of 'law' and 'society' as the foci of sociology of law are no longer appropriate. Sociolegal theory should treat law as a continuum of unstable, competing authority claims. Instead of taking 'society' as its reference point, it should conceptualise the contrasting types of regulatory needs of the networks of community (often not confined by nation-state boundaries) that legal transnationalism addresses.

Keywords: Globalization, transnational law, global legal pluralism, legal instrumentalism, convergence theory; sociology of law