“Transnational Law” as Proto-Concept: Three Conceptions

Author:

Scott Craig

Abstract

I shall use, instead of ‘international law', the term ‘transnational law' to include all law which regulates actions or events that transcend national frontiers. Both public and private international law are included, as are other rules which do not wholly fit into such standard categories.Philip Jessup, Transnational Law 136 (1956)

Publisher

Cambridge University Press (CUP)

Subject

Law

Reference28 articles.

1. Albeit an internal coherence that will always be relational in the sense of necessitating coherent interconnections with the other fields of law from which it grows.

2. See, for example, the first three pieces cited in supra, note 2.

3. Lest I be thought to be seeking to create a ‘straw man’ with my account of this approach, let me be clear that I see it as perfectly open for adherents to this approach also to be fierce advocates for a contextualized and interdisciplinary education of lawyers in addition to a more comprehensive traditional legal education. My only caveat here is that in my view it is particularly important to be conscious that the challenge of contextualization and interdisciplinarity is one of relating a more comprehensive legal education to transnational phenomena rather than assuming that the only phenomenon to be grappled with is “Globalization.” In my view, the notion of transnational phenomena is more conducive to being understood as being more differentiated and as involving often less spatially extensive phenomena than the notion of globalization. It may be true that one can take the monolithic edge off the assumption that there is something going on called “globalization” by self-consciously thinking about “globalizations” – as I have done when teaching Osgoode's first-year course called Globalization and the Law – but, in my view, this still only takes us so far because globalizing forces are not co-extensive with transnational ones, at least as long as one is even a wee bit semantic in one's understanding of the meaning of “global.” To take a by-now-trite example, it is not particularly easy to approach the legal dimensions of the European Union if hamstrung by “globalization” as the organizing reference point.

4. Public international law is traditionally understood as the system that deals with the legal regulation of interstate relations or the common consensual regulation by more than one state of a particular issue or problem (from human rights to the ozone layer). As traditionally studied and taught, it has been common to include interstate organizations (the UN being the most prominent) as both subjects of regulation and to some extent relatively autonomous law-generating agents within the public international law order. By way of nodding to points of overlap with “transnational” ways of viewing the world, it is important to note that any creation or recognition of rights and duties of non-state actors beyond international organizations (individuals, terrorist organizations, the Red Cross, pirates, multinational business entities, and near-endlessly so on) by two or more states acting collectively is viewed, from within mainstream contemporary public international law, as both conceptually part of public international law and empirically an ever-growing chunk of the corpus of public international law.

5. Available at http://www.ilo.org/declaration/thedeclaration/textdeclaration/lang–en/index.htm, last accessed June 15, 2009.

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