The Transnationalization of Law: Rethinking Law through Transnational Environmental Regulation

Abstract

This article argues that the rise of transnational regulation has a transformative impact on law. It examines the field of transnational environmental regulation to show that its proliferation challenges the continued appropriateness of representations of law as (i) territorial, (ii) emanating from the state, (iii) composed of a public and private sphere, (iv) constitutive and regulatory in function, and (v) cohesive and regimented. Instead, law is increasingly perceived as (i) delocalized, (ii) flowing from a plurality of sources, (iii) organizationally inchoate, (iv) reflexive and coordinating in function, and (v) polycentric. Together, these shifts in perception amount to a transformation that the article identifies as the transnationalization of law. The article then explores three responses to the transnationalization of law. It distinguishes responses motivated by a desire to reclaim the traditional conception of law from those that seek to reconstruct law at the transnational level and responses that advocate a contextresponsive reconceptualization of law. Each response, it will be shown, creates a different set of opportunities for, and challenges to, the relevance of law for transnational regulation.

Introduction to Handbook on Transnationalism

“…2 Although our account of transnationalism in this handbook, and that of a majority of chapter authors, emerges from migration-related research, it should be noted that there are other lineages to this term that shape its contemporary usage. There has been, for example, important scholarship on transnational corporations (Sauvant 2008;Yeung 1997), accounts of international relations and transnational state practices (Babic et al 2020;Ougaard 2018) and transnational law (Graubart 2004;Heyvaert 2017), amongst others. While important, the background and current debates in these areas are beyond the scope of this introduction.…”

Introduction

“…Companies rely on a social licence to operate, meaning they must be concerned with, and engage with, societal demands and pressures for a number of reasons. While some of these reasons may be purely philanthropic, or are efforts to protect their reputation, companies can often feel a 'compliance pull' 93 to conform to even voluntary or soft law mandates both nationally and internationally. Companies use these social mandates to both avoid critics and regulation, but also to attract benefits to themselves.…”

Transnational environmental law in the Anthropocene

“…27 Within environmental law, transnational lenses have been adopted 'through which to study and access a deeper understanding of the relationship between law and environmental protection', 28 particularly in the context of global environmental problems such as climate change and ocean degradation. 29 Concurrently, these global environmental problems-characterised by, among other things, their geographical scale-may be described as '"wicked" problems that [defy] resolution because of the enormous interdependencies, uncertainties, circularities, and conflicting stakeholders implicated by any effort to develop a solution' 30 and as such are 'legally disruptive' in nature, 31 thus posing significant challenges for the law.…”