Transnational Legal Process and State Change

Abstract

This article applies a sociolegal approach to the study of transnational legal processes and their effects within countries. First, we clarify the concepts of transnational law, transnational legal process, and transnational legal order. Second, we provide a typology of five dimensions of state change that we can assess empirically. Third, we explain the factors that determine the variable effects of transnational legal processes and organize these factors into three clusters. Fourth, we introduce four empirical studies of transnational legal processes' differential effects in five regulatory areas in Asia, Africa, and South America that illustrate these points. Together, they provide a guide of how to study the interaction of transnational and national legal processes, and the extent and limits of transnational legal processes' effects.

Neoliberalism, Transnational Education Norms, and Education Spending in the Developing World, 1983–2004

“…Finally, we analyze norm development and implementation separately. Our findings suggest that, in the long run, neoliberal discourses on education promoted by economic actors were no match for discourses carried broadly in global civil society by child‐rights INGOs (Shaffer 2011).…”

“…1997; Clemens 2004). An important next step is to study whether and how these conditions become a basis for transforming transnational education norms (Shaffer 2011).…”

The Incurable Constitutional Itch: Transnational Private Regulatory Governance and the Woes of Legitimacy

“…Faced with a multitude of overlapping, fast-evolving private regulatory governance regimes in areas ranging from financial 126 to environmental 127 regulation, investment law 128 or commercial transfers 129 , lawyers must continue to both expand their expertise with regard to specialized, technical transactional areas and appreciate the relevance of non-legal ordering and regulatory concepts which underlie and inform many of the emerging governance regimes. 130 Transnational private regulatory governance as a field of research sits squarely in the discursive context of state transformation, both from a national 131 and a transnational 132 perspective, as it addresses a fundamental de-centering of both rule creation, dissemination and adjudication processes and of the conceptual frameworks with which we have learned to measure the legality and legitimacy of these processes. 133 This unsettling of the state-law nexus has come under broad scrutiny, a development that finds expression in numerous iterations under titles such as Law and in which law appears to be caught up.…”

Future Design of Cyberspace Law-“Laws are Sand” (Mark Twain, The Gorky Incident)

“…Both approaches, however, underestimate procedural elements, i.e. the complex processes of institutional interactions in a transnational legal setting as well as the processes of internalization of global norms (Koh, 1997;Shaffer, 2010) (Note 8). Furthermore, it cannot be overlooked that the concept of Thomas Hobbes, outlined in his famous Leviathan (Hobbes, 1651), that law is to be defined in political terms, which means in terms of power, does not anymore fit the structures of the cyberworld since the regulatory environment is linked to multi-stakeholder participation (Frydman, 2004).…”