Transnational Law's Legality

23 Pages Posted: 25 Jun 2020 Last revised: 5 Aug 2020

See all articles by Evan Fox-Decent

Evan Fox-Decent

McGill University - Faculty of Law

Date Written: May 30, 2020

Abstract

I argue that transnational law has a formal legal character. To do so, I build on socio-legal scholarship in this domain, but apply a jurisprudential perspective. Specifically, I argue that public fiduciary theory is well-placed to explain the nature of authority evoked by transnational legal orders, as well as their legal features and constitution. This theory claims that the fiduciary character of an organization--i.e., its other-regarding purpose and adherence to certain procedural standards--is a necessary feature of its claim to legitimate authority. By addressing these jurisprudential questions, public fiduciary theory contests scholars who deny transnational law's formal legal character. Ultimately, I argue that despite the private constitution of some transnational law-making bodies, and their lack of express public authorization, by fulfilling a transnational fiduciary role they exercise authority which either is or closely resembles public authority. This, in turn, contributes to the legal character of the transnational norms these bodies generate. I use the International Organization for Standardization as an illustrative case study. The implications of this approach include acknowledging that law can exist beyond national or international state regulation, and a denial that coercion is an essential element of law.

Keywords: Transnational Law, Public Fiduciary Theory, Transnational Organizations, Authority, Jurisprudence

Suggested Citation

Fox-Decent, Evan, Transnational Law's Legality (May 30, 2020). Available at SSRN: https://ssrn.com/abstract=3616725 or http://dx.doi.org/10.2139/ssrn.3616725

Evan Fox-Decent (Contact Author)

McGill University - Faculty of Law ( email )

3644 Peel Street
Montreal H3A 1W9, Quebec
Canada

HOME PAGE: http://www.mcgill.ca/law/about/profs/fox-decent-evan

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