Transnational Law: Theories & Applications

Abstract

This chapter serves as the introduction to the OXFORD HANDBOOK OF TRANSNATIONAL LAW (P. Zumbansen ed., Oxford University Press, 2020, forthcoming). Its subject matter – “transnational law” – remains at the center of lively discussions with results ranging from pronouncing the death to the renewal of law in an era of globalization. With the stakes being that high, the expectations for this field are equally potentially overwhelming. It is unclear and still unsettled what transnational law is. After it was conceptualized and introduced to a wider audience of international lawyers in the 1950s, the jury is still out on whether transnational law is a ‘new’ legal field or whether it is a particular kind of jurisprudence of ‘law and globalization’, or whether it is a socio-legal approach to law’s transformation in and beyond the state in the late 20th and early 21st century, or whether it is merely a synonym for legal pluralism, that is for the acknowledgement of the co-existence of law and (social, cultural, economic, religious and other) norms. Finally, given the rumors of transnational law’s ‘constitutional itch’ in terms of its allegedly questionable democratic legitimacy it is unclear, whether the invocation of transnational law indicates a departure from the nation state or whether, instead, it prompts us to more closely scrutinize the origins of some of transnational law’s ‘unique’ characteristics already in the nation-state, such as the ‘shift from government to governance’, the proliferation of private norm production, the emergence of new actors as norm authors and the increasing resort to ‘soft’ and ‘informal’ law.

The chapter surveys and reviews seminal contributions to these discussions but must ultimately fail to account for the wealth and depth which is transnational law today. Instead, the chapter can itself merely highlight some of trajectories of the debates around the facets of transnational law while its author takes comfort in the fact that the contributors to the book which this chapter is introducing lay out the complexity and diversity as well as the very ‘reality’ of law’s transnationalization across numerous legal fields, policy arenas, sites of political debate as well as trends in newly emerging legal pedagogy.

Keywords: Transnational Law, transnational regulatory governance, sovereignty, jurisprudence, concept of law, legal pluralism, global governance, transnationalization of law, legitimacy, legal education

JEL Classification: K12, K33