The Metamorphosis of the Functional Synthesis: A Continental European Perspective on Governance, Law, and the Political in the Transnational Space

45 Pages Posted: 31 Aug 2010 Last revised: 12 Sep 2010

Date Written: August 30, 2010

Abstract

States remain a central form of ordering but only one among several. In the transnational space, a wide range of autonomous public- and private-norm producing organizations and regimes operates, which is not, or only partly controlled, by states. The consequence is that the contemporary world is characterized by a multiplicity of overlapping normative orders that rely on different organizational principles: for example, some are territorially bound and some are functionally delineated. Governance structures have emerged as the form through which the multiplicity of orders is linked together. They are inter-contextual forms which simultaneously serve as buffer zones and transmission belts between these orders. As such, governance structures can be understood as institutional mechanisms that fulfill the function of ensuring the societal embeddedness of autonomous normative orders in the wider world through increased reflexivity.

The type of law which has emerged in order to structure the governance phenomenon reflects the societal function of governance structures. Transnational law is an “in between worlds” law in the sense that a central aspect of transnational law is the framing of learning processes capable of ensuring mutual adaptability between normative orders. As such transnational law fulfills a different function than nation-state law which in essence remains oriented towards the upholding of already established normative expectations. As governance structures are the no man’s land between normative orders, they possess an intrinsic political quality. They are the battlefields were the delineation of normative orders are established and continuously reaffirmed. Grasping the kind of political processes unfolding within governance structures is however conditioned by the development of a concept of the political which reflects the inter-contextual function of governance structures.

Keywords: governance, transnationality, globalization, transnational law, transnational politics, functional differentiation, normative orders, constitutionalism, global order, constitutionalization, multinational companies, international organizations, conflict, transparency, stakeholders, intercontextuality

Suggested Citation

Kjaer, Poul F., The Metamorphosis of the Functional Synthesis: A Continental European Perspective on Governance, Law, and the Political in the Transnational Space (August 30, 2010). Wisconsin Law Review, Vol. 2010, No. 2, p. 489, 2010. Available at SSRN: https://ssrn.com/abstract=1668423

Poul F. Kjaer (Contact Author)

Copenhagen Business School ( email )

Solbjerg Plads 3
Frederiksberg C, DK - 2000
Denmark

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