The 'Cri de Jessup' Sixty Years Later: Transnational Law’s Intangible Objects and Abstracted Frameworks Beyond Nation, Enterprise, and Law

Forthcoming, Peer Zumbansen (ed.), Jessup’s Bold Proposal. Critical Engagements with Transnational Law (Cambridge UP, 2019)

Coalition for Peace & Ethics Working Paper 3/1 (March 2019)

27 Pages Posted: 5 Apr 2019 Last revised: 24 Apr 2019

See all articles by Larry Catá Backer

Larry Catá Backer

Pennsylvania State University, Penn State Law

Date Written: March 12, 2019

Abstract

Sixty years ago, Philip Jessup produced a cri de guerre whose ramifications continue to unfold. The original Cri de Jessup gave the transnational within law the means to distinguish itself from other legal orders. Yet even sixty years after the Cri de Jessup the transnational remains tied from its moorings in ancient conceptions of nation, of enterprise, and of law. This contribution considers the possibilities inherent in Jessup’s vision liberated from its grounding in the assumption that the transnational arises only to deal with the ad hoc situation when all other efforts at resolving the issue under the law of a state, any state, fails. It is divided into three sections. Section II’s “Transnational Law as Manifesto” explores the contemporary approach to transnational law and its more radical possibilities. These possibilities are radical not in the sense of requiring a substantial break with the past but in the sense of suggesting the ways in which Jessup’s vision ultimately requires a shifting of perspectives about the relationship of law to the state, the state to the societal sphere, and both to transnational law and the multinational enterprise. Section III, “Jessup’s Big Bang and Beyond,” starts with Jessup’s core premise and then attempts to move beyond it. The power of this template and its multiple current manifestations is particularly acute when speaking to the transnational enterprise. The last section, “From Transnational Law to the Law of Transnational Spaces,” considers the parallel development of the problem of transnational law and of the transnational enterprise. To that end, it applies an actor-network (norm) process framework inward within and to the enterprise. Both transnational law and enterprise serve as a complement to domestic legal orders and its territorial boundaries. Both (transnational business) enterprises and transnational law have been constructed and used as a complementary means by which states might extend legal regimes to cover governance gaps. That construction and use, however, have been based on ad hoc and situational methodologies. They are together the embodiment for the law and space of the “in-between;” and absent the reorientation of perspective suggested in the opening section, will remain at the margins of law and institutional governance.But that is no longer enough. Thus, this contribution ends with a question that still is in search of an answer: have we come far but not moved very much? The answer may lie not in process and method but in the institutionalization of a normative ordering of rule producing entities.’’

Keywords: transnational Law, Jessup, transnational enterprises, human rights, legal pluralism, CSR

JEL Classification: F23, K20, K33, L23, M14

Suggested Citation

Backer, Larry Catá, The 'Cri de Jessup' Sixty Years Later: Transnational Law’s Intangible Objects and Abstracted Frameworks Beyond Nation, Enterprise, and Law (March 12, 2019). Forthcoming, Peer Zumbansen (ed.), Jessup’s Bold Proposal. Critical Engagements with Transnational Law (Cambridge UP, 2019) . Available at SSRN: https://ssrn.com/abstract=3350824

Larry Catá Backer (Contact Author)

Pennsylvania State University, Penn State Law ( email )

Lewis Katz Building
University Park, PA 16802
United States

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