Oxford University Press
THIS chapter is devoted to transnational legal process theories. In 1955, Philip Jessup, in his Storrs Lectures at Yale, famously coined the term “transnational law” as he searched for a concept that would capture the legal regulation of actions or events that transcend national boundaries and that can accommodate both public and private international law. Further, while the traditional concept of “international law” referred to the law regulating relationships between states, the new term encompassed legal relationships of and amongst individuals, corporations, and organizations as well as states.
In other words, as early as the 1950s, and thereafter with increased urgency, scholars have been pointing out that the concept of the inter-national, including international law, no longer suffices to explain the reality they were observing: a reality of increasing interrelatedness of various types of social actors interacting in the international sphere. “International law” no longer contained the multitude of legal relations and of legal disputes, including disputes that were in fact being resolved, such as cross-border business disputes between individuals and/or corporations that were being resolved in international commercial arbitration. Different scholars have, over time, given somewhat different names to the new reality. For example, they have used “transnational” or “cross-border” to connote the traversing of national boundaries; “supranational” to emphasize new regional arrangements such as the European Union; “global” to invoke the processes, predominantly economic and technological, collectively known as “globalization.” Irrespective of the specific terminology selected, scholars and practitioners have been experiencing and explaining the breakdown of old dichotomies and categories—the paradigm shift in international affairs that characterized the twentieth century.
The chapter opens with both negative and affirmative definitions of the idea of “transnational legal process(es)” and with a brief note on the origin and history of this concept. In order to provide a representative sample of the field, the main section presents some of the leading theories, grouped based upon the underlying perspective of the theorists: the lawyers and legal theorists, the political science and international relations theorists, and the sociologists and socio-legal theorists. In addition to describing these dominant approaches, the chapter highlights competing methodologies and key themes, including the internationalization of the rule of law and its discontents and the intended and unintended consequences of the transplantation of institutional models from one realm to another. The chapter concludes with the observation that the nascent field of transnational legal theory suffers from a lack of conceptual clarity that stems, in part, from its attempts to cover disparate phenomena that pull in different directions.
It is helpful to note at the outset that certain, important theories inform and partly overlap with theories of the transnational legal process, but are not themselves directly and properly understood theories of that process. These include theories of international law and international governance; theories that subsume the transnational legal process in the domestic process; purely doctrinal or comparative scholarship of transnational litigation; and theories of non-adjudicative international dispute resolution mechanisms, such as diplomacy. These are hereby acknowledged but excluded from the discussion.
Similarly, certain important discussions on issues such as the finance of international courts, the desirability of proliferation and fragmentation of international judicial bodies versus harmonization and international access to justice, are perhaps better characterized as in the realm of policy rather than theory and thus, are also excluded from the current discussion.
Chapter 16: Transnational Legal Process Theories
The Oxford Handbook of International Adjudication
Available at: https://scholarship.law.bu.edu/faculty_scholarship/3464