Global Administrative Law: A Transnational Perspective

The most important phenomena attributable to the project of “global administrative law” (GAL) consists of rules, principles, practices, or procedures that have a more informal character and are generated from networks of public and private actors. The main characteristics of those rules is that they tend to be generated below the level of formal international treaties and that norm production occurs—at least in part—outside traditional formal modes of decision-making. However, some GAL norms including standards on products and services in particular, can have far reaching consequences as their factual weight is much more influential than domestic norms. GAL also develops new forms of procedure (e.g., voting) that are different from traditional international forms.

Transnational Law and Legal Positivism

This chapter assesses the theoretical adequacy of legal positivism in explanation of several forms and features of transnational law. We suggest that while legal positivism emerged as a philosophical account of state law in the seventeenth, eighteenth, and nineteenth centuries, its connection to state law is best viewed as historical and contingent rather than conceptual and necessary. Among the two core commitments of legal positivism, while the separation thesis requires no modification from its original form, the social fact thesis must be revised and developed to explain the character of transnational law. We also show how the exercise of revising a philosophical theory of law such as legal positivism provides an opportunity to illustrate the continuity between conceptual, empirical, and evaluative studies of transnational law.

Transnational Criminal Law: A Field in the Making

Twenty years into the current phase of globalization, a new field of transnational criminal law is in the making, expanding to cover issues as diverse as money laundering, counterterrorism, global banking, human trafficking, infringements of intellectual property rights, and cybercrime. The chapter introduces the concept of transnational criminal law (TCL) and deliberates on the dilemmas of TCL as applied to empirical legal phenomena before suggesting a sociolegal approach to further develop the field of TCL. In particular, the chapter brings to bear on TCL the rich debates within global governance and transnational legal theory. The chapter does this by decentering formal state law and examining the full range of technologies of governance, that nonstate actors increasingly propose in order to address transnational social problems.

Transnational Corporate Governance: The State of the Art and Twenty-First-Century Challenges

This chapter explores corporate governance as a transnational regulatory field. Mirroring the rise in importance of the idea of shareholder wealth maximization as a firm’s definitive performance measure, corporate governance became a hotly contested field of competing visions of firms’ institutional and normative infrastructure in search of creating the most advantageous conditions to attract capital in volatile markets. This shift occurred at the same time that regulatory transformations in Western postindustrial societies since the early 1980s had begun to significantly shift public service provision and state-organized frameworks for old-age security guarantees and access to health services. Today’s corporate governance laboratory is a transnational force field, fought over by a host of different state and nonstate actors and also by private actors such as institutional investors. Meanwhile, following the financial crises in 2001, 2008 and 2020 and the simultaneously growing pressure on corporations from human rights, gender equality, and environmental groups, the corporate governance debate again is shifting. This time, a diversity of issues are being discussed under the corporate governance rubric, indicating a more comprehensive engagement with the firm’s purpose and functions and its societal obligations and responsibilities. Given the crucial role of firms as the residual claimants of a wide-ranging retreat of the state from its role in guaranteeing and providing a wide range of social functions, corporate governance is a mirror for the transformation of public and private power, and it has to address the twenty-first-century challenges, including global value chains and the proliferation of institutional investors, unfolding on a planetary scale.

Representing Transnational Law: Drone Warfare and Transnational Legal Text

What can entertainment media tell us about a contemporary concept of law that is being transnationalized, and why should scholars pay attention to ostensibly fictional representations of law in transnational contexts? In this chapter, I consider representations of transnational law through an analysis of Gavin Hood’s 2016 film on drone warfare, Eye in the Sky (Eye). Eye is driven by a compelling narrative tension: a child is likely to be harmed if a missile is launched at a room occupied by terrorists loading suicide vests with explosives. But if this child is not risked (sacrificed?) and the terrorists conduct their suicide mission, a minimum of eighty civilian deaths is the probable result. With lives at stake, we watch a transnational alliance of American and British state actors debate law, the rules governing drone strikes, and accountability to publics, as the decision is made to conduct the targeted killing. Dramatizing questions of law in relation to the secretive workings of drone warfare, Eye offers a valuable representation of how a very specific account of law as security is being transnationalized.

Transnational Law and the Ethnography of Corporate Social Responsibility

This chapter introduces transnational law as a bridge-building modality between different forms of knowledge, internal as well as external to the law. It juxtaposes, in an exemplarily way, legal and anthropological knowledge about corporate social responsibility in global value chains in order to reveal transnational law’s faculty to find creative solutions to border-transcending human problems. It shows how nonlegal knowledge may inform on legal doctrine through an investigation of certain anthropological concepts—such as the gift and reciprocity, performance and the secular ritual, relational personhood and detachment. This chapter presents a way of ‘doing interdisciplinarity’ that avoids the danger of instrumentalizing nonlegal knowledge to find ‘better’ solutions to doctrinal problems. By drawing on transnational law as a methodology of mutual irritation and translation, this chapter pushes the boundaries of legal research into the pressing questions of corporate responsibility in entangled cross-border economic relations.s

The Global Governance Implications of Private International Law

The ways in which the background rules of private law determine the balance of power within the global economy are difficult to identify to the extent that the reach of any given legal system and its combination with other potentially contradictory sets of national regulation are uncertain. The specific contention here is that private international law, which allocates the various sets of applicable rules on all these points when they involve private, usually corporate, actors, has served above all to dispense them from the regulatory constraints to which they might be subject in a domestic setting. It has thereby provided the building blocks that have allowed capital to expand beyond borders and the pursuit of profit to develop to the detriment of competing values, beyond control.

Contextualization as a (Feminist) Method for Transnational Legal Practice

Transitional justice and peacebuilding are expanding fields of global governance that have attracted increasing interest from transnational legal practice and scholarship. Focusing on women’s rights promotion in postconflict states, the chapter examines the UN “Women, Peace and Security” agenda and its challenging implementation in Afghanistan. By identifying the hegemony of Western liberal thought within peace and conflict studies and international human rights law as an obstacle to this implementation, the chapter explains how transnational legal practice could benefit from a greater engagement with feminist methodology and the significance it places on understanding “contexts.” As such, the chapter sets out “contextualization” as a method that could lead to more relevant and inclusive transnational legal practice in such disciplines.

Transnational Art Law—Maps and Itineraries

This chapter asks how best to frame a field of study called “transnational art law” (TAL). If art law encompasses all legal aspects of the production, distribution, and transaction of art, as well as any other rights and obligations governing art world actors and works of art, then transnational art law is the framework of legal knowledge necessary to understand these relationships and transactions across borders. Following the Transnational Law framework proposed by Philip Jessup in 1956, TAL would not be restricted to public or private, national or international, substantive or procedural law, but intervene in problem spaces involving all of these. It would capture the transnational actors, norms, and processes, the formal and informal interactions that constitute the art world. This chapter sketches TAL in its possible doctrinal, policy, regulatory, and advocacy dimensions, and suggests some openings for interdisciplinary study in particular.

Transnational Climate Law

Climate change shatters the idea that jurisdictional borders and doctrinal debates about the scope of the “legal” are the sole tensions with which a concept of transnational law must contend. Climate change exposes a further fault line underlying legal thought and practice—the ultimate frailty of a model of human/nature interactions premised on the background assumption of an inexhaustible planet of infinite resources. Newly minted climate laws and climate lawsuits are emerging not against a blank slate but rather in a context where the concept of nature as a resource to be exploited for human use is deeply embedded in and through law. This chapter reaches beyond the most visible manifestations of climate law—legislation and lawsuits that appear already bearing the climate law label—to explore the ways in which a transnational law lens illuminates the rather larger subject areas of unenvironmental law and unclean energy law.