With, Within, and Beyond the State: The Promise and Limits of Transnational Legal Ordering

25 Pages Posted: 9 Dec 2016 Last revised: 14 Mar 2017

See all articles by Gregory Shaffer

Gregory Shaffer

University of California, Irvine School of Law

Terence C. Halliday

American Bar Foundation

Date Written: December 8, 2016

Abstract

While some theorize the autonomy of transnational legal orders from nation-state law, we develop theory regarding the transnational interaction of lawmaking and practice among different levels of social organization that is intricately tied to state law. Our theoretical framework provides a way to assess empirically how legal norms interact at the transnational, national, and local levels in terms of their construction, conveyance, and practice. For us, the term “transnational” thus does not suggest the disappearance of the state, the withdrawal of the state as a major actor, or processes autonomous of state law, as contended by others. Rather, the term “transnational” has three core attributes. First, it highlights that states (through state officials) are just one among many actors engaged in transnational legal ordering. Second, it points to the ways transnational legal ordering transcends and often transforms states through their participation in transnational legal processes. Third, it underscores that one needs to assess the interaction of state and non-state actors at different levels of social organization, including international organizations and transnational networks, national institutions, and local practice, to understand transnational legal ordering. This interaction determines the extent to which legal norms settle across levels of social organization and give rise to transnational legal orders.

Suggested Citation

Shaffer, Gregory C. and Halliday, Terence C., With, Within, and Beyond the State: The Promise and Limits of Transnational Legal Ordering (December 8, 2016). UC Irvine School of Law Research Paper No. 2016-59. Available at SSRN: https://ssrn.com/abstract=2882851

Gregory C. Shaffer (Contact Author)

University of California, Irvine School of Law ( email )

401 E. Peltason Dr.
Ste. 1000
Irvine, CA 92612
United States

Terence C. Halliday

American Bar Foundation ( email )

750 N. Lake Shore Drive
Chicago, IL 60611
United States

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