Theorizing Transnational Legal Ordering

Abstract

Law encounters, responds to, and shapes an immense amount of transnational economic and social exchange. As information processing and communication technologies revolutionize, transnational social interaction and interdependence deepen. Transnational knowledge practices and social risks spread. Time and space compress. The response to these changes has been a dramatic increase in what can be viewed as transnational legal ordering. Much theorizing of transnational legal ordering revolves around three mismatches: those between global markets and national law; between public law capabilities and private demands; and between private lawmaking and public goals (Mattli 2015). The first spurs legal ordering that is transnational in its geographic scope. The second drives private lawmaking through private contract and private regulation. The third catalyzes hybrid forms of lawmaking, involving international hard and soft law, private legal ordering, and their interaction. These developments challenge the traditional concept of the national public sphere for the making of law (Fraser 2014). Jessup's 1956 Storrs Lecture is widely cited as first giving prominent attention to the concept of "transnational law," which he defined as "all law which regulates actions or events that transcend national frontiers." Jessup's concept reflected a functional concern that the combination of national and international law is inadequate to regulate transnational activities. He thus included in his concept, in addition to public and private international law, "other rules which do not wholly fit into such standard categories." Yet he did not significantly develop that residual category of "other rules." Since then, scholarly interest in the phenomenon of transnational and global legal ordering has grown dramatically. In 2015, fifteen journals used the term "transnational law" or "transnational legal" in their title, and that number expands to forty journals when including the terms "global law" or "global legal." 1 I. Transnational Legal Ordering as Private Legal Ordering A first group of scholars focuses solely or predominantly on private legal ordering in theorizing the transnational. Most of them maintain that the state lacks the will, capacity, or efficiency to create, apply, and enforce law for the coordination and regulation of behavior. This theorizing is grounded in the nature of the actors (private actors) and the form of legal ordering (private contract, standard setting, assessment, and enforcement), giving rise to "a-national" law or "law beyond the state" (Carbonneau 1998; Michaels 2007). The theorists can be broken down into three subgroups: (i) law and economics scholars who focus on privately-made commercial law, or lex mercatoria, as a more efficient and optimal form of lawmaking and dispute settlement; (ii) socio-legal scholars who evaluate private regulation by business and civil society groups; and (iii) private international law scholars who address private international law as a backdrop to private legal ordering whi...

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