Transnational Law's Legality
23 Pages Posted: 25 Jun 2020
Date Written: May 30, 2020
In this essay, I argue that transnational law does indeed have formal legal character. To do so, I depart from the trend of socio-legal scholarship, instead applying a jurisprudential perspective. Specifically, I argue that public fiduciary theory is well-placed to explain both the nature of authority evoked by transnational legal orders, and the broader character of the law these orders purport to represent. This theory claims that the fiduciary character of an organization, namely its other-regarding purpose and adherence to certain procedural standards, is necessary for its claim to legitimate authority. By addressing these jurisprudential questions, public fiduciary theory enables the formulation of a persuasive rebuttal vis-à-vis scholars who deny transnational law its formal legal character. Ultimately, I argue that despite the private constitution of 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 state regulation, either national or international, as well as denying coercion to be an essential element of law.
Keywords: Transnational Law, Public Fiduciary Theory, Transnational Organizations, Authority, Jurisprudence
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