The Politics of Transnational Law (original) (raw)

iCourts Working Paper Series No. 152

17 Pages Posted: 25 Jan 2019

Date Written: January 22, 2019

Abstract

Since Jessup first introduced the term, ‘transnational law’ has gained a significant following across leading law schools in both Europe and the United States and heavily influenced various sub-branches of the discipline. The shift of governance towards transnational and more loosely-structured networks and structures was initially met by scepticism by many international lawyers. Subsequent scholars have, however, come to embrace transnationalism as both an inescapable and beneficial evolution of international law. Transnationalism, it is argued, help smooth the negotiation of new treaties, fill gaps through soft law where binding international agreements are unattainable, and serve to establish ‘interpretive communities’ that enable ‘norm internalisation’.

Much of this literature, however, presumes a normative underpinning. A liberal trajectory is assumed to either precede or ensue from this encounter between transnationalism and international law, ensuring that transnational networks and processes work to promote rather than undermine the liberal premise of the international legal project. With the benefit of hindsight, the present paper argues that this assumption, if ever valid, is particularly challenged in today’s political environment, in which many states feel unduly constrained by international legal commitments and multilateral internationalism no longer holds the currency in foreign policy discussions it used to. In response, states may be seen to employ a range of strategies to circumvent or creatively navigate international legal structures, themselves drawing on the very same transnational structures and modus operandi as foreseen by transnational law scholars. The paper thus argues for more attention to this dimension of transnationalism, which has so far been overlooked in the scholarly literature on the subject.

Keywords: transnationalism, transnational legal theory, legality, practice theory, international law and politics

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