1 For a very small sampling of relevant articles, see for example: Harold Hongju Koh, Transnational legal process, 75 Nebraska law Review 181–207 (1996); Zumbansen, Peer, Transnational Law in Encyclopedia of Comparative Law 738–754 (Jan Smits ed., Edward Elgar 2006); Robert, Wai, Transnational private law and private ordering in a contested global society, 46 Harv International Law Journal 471–486 (2005); Goode, Roy, Usage and its reception in transnational commercial law, 46 International and Comparative Law Quarterly 1–36 (1997); Charles Brower and Jeremy Sharpe, The Creeping Codification of Transnational Law, 45 Virginia Journal of International Law 200 (2004-05); Friedman, L.M., Borders: on the emerging sociology of transnational law, 32 Stanford Journal of International Law 65–90 (1996); Gaillard, E., Transnational law: a legal system or a method of decision making?, 17 Arbitration International 59–71 (2001); Stein, Eric, Lawyers, judges, and the making of a transnational Constitution, 75 American Journal of International Law 1–27 (1981). Note also the forthcoming (2009 or 2010) book by Michael Giudice and Keith Culver, Legality's Borders (Oxford University Press).Google Scholar

2 For pieces in which “transnational law” is more or less self-consciously referenced, see The Alien Tort Claims Act Under Attack – Remarks (“Beyond the Sosa v Alvarez-Machain Terms of Debate: Conceptualizing International Human Rights Torts in Terms of Transnational Law'”), 98 Proceedings of the American Society of International Law 49, 58–61 (2004); Introduction to Torture as Tort: From Sudan to Canada to Somalia, in Torture as Tort: Comparative Perspectives on the Development of Transnational Human RIghts Litigation 3–44 (C. Scott, ed.); Translating Torture into Transnational Tort: Conceptual Divides in the Debate on Corporate Accountability for Human Rights Harms, in Torture as Tort 45–63 (C. Scott, ed.). For pieces in which law, not necessarily itself styled as transnational, adjusts itself to transnational contexts and situates itself in terms of transnational governance, see Transnational Governance of Corporate Conduct through the Migration of Human Rights Norms: The Potential Contribution of Transnational ‘Private’ Litigation, in Transnational Governance and Constitutionalism 287–319 (C. Joerges, P Sand and G Teubner, eds., 2004) (co-authored with Robert Wai); Multinational Enterprises and Emergent Jurisprudence on Violations of Economic, Social and Cultural Rights, in Economic, Social and Cultural Rights: A Textbook, 2^nd edition 563–596 (A. Eide, C. Krause, and A. Rosas, eds., 2001); Towards the Institutional Integration of the Core Human Rights Treaties, in Reaching Beyond Words: Glving Meaning to Economic, Social and Cultural Rights 7–38, fn: 213–225 (Valerie Oosterveld and Isfahan Merali, eds., 2001); Adjudicating Constitutional Priorities in a Transnational Context: A Comment on Soobramoney's Legacy and Grootboom's Promise, 16 South African Journal of Human Rights 2 206–268 (co-authored with Philip Alston) (2000).Google Scholar

3 Dworkin, Ronald, Law's Empire (1986).Google Scholar

4 Joseph, Raz, The Morality of Freedom (1986).Google Scholar

5 Id., 63–64.Google Scholar

6 I owe what follows in this paragraph to observations offered by Michael Giudice.Google Scholar

7 This pluralism of “transnational law” discourses will be further addressed briefly in the section called “Transnational Socio-legal Pluralism” and also in the “Final Comments”, infra. Google Scholar

8 A direct debt is owed to the explorations in Roberto Unger, What Should Legal Analysis Become? (1996).Google Scholar

9 On this way of framing conceptual inquiry, see Joseph Raz, On the Nature of Rights, 93 Mind 19 (1984). See also supra note 4 at 165ff. The The Nature of Rights chapter in The Morality of Freedom is largely identical to the preceding article except for an added treatment of Ronald Dworkin's notion of rights as trumps at 186–192.Google Scholar

10 Especially given my methodology emphasizing “transnational law” as a proto-concept, no claim is made here that there are only three conceptions. But, it is claimed (at least at present) that the three conceptions in this paper appear to the author to be sustainable, even if there are others.Google Scholar

11 See supra, note 1.Google Scholar

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

13 Just by way of two examples not unrelated to “nations” or “peoples” as law's reference points, consider the choice of title and analytical focus in John Rawls, The law of Peoples (1999). Consider also the notion of “intersocietal rules” in Brian Slattery, The Organic Constitution: Aboriginal Peoples and the Evolution of Canada, 34 Osgoode Hall Law Journal 101, 109 (1996).Google Scholar

14 See for example, Raustiala, Kal, The Architecture of International Cooperation: Transgovernmental Networks and the Future of International Law, 43 Virginia Journal of International Law 1 (2002-2003). In the interests of the pluralism (and corollary semantic humility) gestured to earlier, it is also worth noting how others use the term “supra-” in preference to “trans-”, as in Errol Meidinger, Competitive Supragovernmental Regulation: How Could It Be Democratic? 8 Chicago Journal of International Law 513 (2008).Google Scholar

15 It is important to be clear that there are several distinct versions of what legal positivism entails, and state-centredness is not necessarily part of some conceptions. Also, legal positivism that emphasizes states as the ultimate source of all law invariably must have a prescriptive component (this is how law should be understood) and, in light of the extent and complexity of phenomena that seem to bracket the state in one way or another, cannot expect to persuade skeptics by claiming that state-centredness is purely and simply a description of observed social practice. That said, the thoughtful legal traditionalist will have answers as to why “fit” and “justification” do converge with retention of state-centred understandings of sources of law.Google Scholar

16 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.Google Scholar

Private international law is the field of law that comes into play where persons have relationships, transactions or encounters in contexts of geographically-complex facts (involving more than one state's jurisdiction), and questions of how to adjudicate so-called ‘private law’ rights and obligations arise. Classically, in the conceptualization and, more especially, the teaching of private international law (whether under this label or that of ‘conflict of laws'), the three core questions of the field relate to adjudicative jurisdiction, choice of (applicable) law, and recognition and enforcement of judgments. Note that the mainstream modern conception of private international law is that each jurisdiction has its own national rules on geographically-complex private law situations (jurisdiction, choice of law and recognition/enforcement), such that this area of law is actually a matter for each national legal system. That said, this area of law is “interstate” in the subject-matter sense that each system's domestic rules exist to regulate the interaction of the domestic legal system and foreign states’ legal systems. Especially for the second and third conceptions of “transnational law” to be canvassed, it is deeply relevant that there was a time when what we now call private international law would have been more commonly categorized as a branch of an ‘international law’ that was tasked with regulating a multiplicity of actors and doing so by recourse to “law” that would not necessarily be (or be exclusively) the municipal law of states. The interstitial injection of public international law via treaties generated by the Hague Conference on Private International Law tends to be the clearest way contemporary public international law interacts with private international law, and then only as refracted through the rules of reception of public international treaty law by states’ domestic legal systems.Google Scholar

17 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.Google Scholar

18 By way of contrast, statist legal traditionalism within legal theory tends to view (although I would not go so far as to say invariably views) law as always and everywhere systemic (with the corollary that all law either belongs to a state legal system or an international legal system.) This is a dominant presumption of state-centred theory, and one well worth questioning as part of generally reflecting on the adequacy of transnational legal traditionalism. I am grateful to Michael Giudice for the foregoing points.Google Scholar

19 Although this article's contribution is schematic in the extreme, I cannot avoid the temptation to comment a bit further on the relationship between process and decisional outcomes. I note (rather than defend) my view that one strand within what some would call the transnational legal process school is what I am calling here transnationalized legal decisionism. Much emphasis in the process approach is placed on the imbrication of comparative law analysis in a given domestic law context, for example, looking for edifying insights in relevant constitutional decisions in other jurisdictions before deciding one's own case: see for example, Anne-Marie Slaughter, Judicial globalization, Virginia Journal of International Law 1103 (2000). In such writings (and in speech-making by a growing number of judges), comparative constitutional analysis is often linked to a sociology of transnational interjudicial discussion that is sometimes literal (actual meetings amongst judges to exchange insights on parallel constitutional challenges) and more often metaphorical, as when we speak of an evolving ethos of transnational dialogue amongst courts in the world with respect to a common human rights enterprise that, in its more through-going (and, I would suggest, sophisticated) versions, links constitutions and international human rights treaties in a shared value system: see for example, Craig Scott and Philip Alston, Adjudicating Constitutional Priorities in a Transnational Context: A Comment on ‘Soobramoney's’ Legacy and ‘Grootboom's Promise', 16: 2 South African Journal of Human Rights 206 (2000); Bahdi, Reem, Globalization of judgment: transjudicialism and the five faces of international law in domestic courts, 34 George Washington International Law Review 555 (2002); Shany, Yuval, How supreme is the supreme law of the land? Comparative analysis of the influence of international human rights treaties upon the interpretation of constitutional texts by domestic courts, 31 Brooklyn Journal of International Law 342 (2006).Google Scholar

Transnational judicial conversation has of course always been part of common-law decision-making to the extent extra-jurisdictional common-law precedents have always played a persuasive role in ‘domestic’ common-law reasoning, and I am fairly certain that a parallel phenomenon exists in many civil-law jurisdictions (for example, cognizance of decisions in other civil-law countries or consulting both la doctrine and the reasoning of doctrinal theorists further afield than one's own jurisdiction). It also must not be forgotten that transnational judicial interaction includes a core mechanism of private international law, namely the not-infrequent necessity for judgments in one state to be given effect only once formally recognized by judges in another state as having been properly rendered – with propriety ranging from jurisdictional to procedural to, less commonly, substantive propriety. Analogues to all these examples can be given with respect to how judicial, arbitral, codifying, law-developing, legislating and similar decision-makers in the public international law system similarly engage in a comparativistic borrowing process with domestic legal systems, and how the domestic level can ‘receive’ norms from the international level that then become part of the transnational dialogue amongst national courts and other decision-makers – i.e. comparing the different and potentially similar interpretations that can be given to the ‘same’ international law norm. The upshot of these examples, however, is that we still need not necessarily go further than assuming some authorized decision within a given state or interstate jurisdiction, albeit in a way that usefully helps us see how a decision is invariably part of a broader decision-making process.Google Scholar

20 Note, however, that the second conception's focus on decisional outcomes can also be grafted onto the present (third) conception, once one has surmounted the hurdle of determining that non-state or other-than-only-state decision-making institutions have sufficiently recognized authority to generate decisions that are entitled to the label of “law.”Google Scholar

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

22 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.Google Scholar

23 For a (very) small cross-section of a (very) wide range of approaches that I would categorize as “legal pluralist” with transnational dimensions, see: Andreas Fischer-Lescano and Gunther Teubner, Regime-collisions: the vain search for legal unity in the fragmentation of global law, 25 Michigan Journal of International Law 999–1046 (2003-2004); Weiler, J.H.H., The geology of international law – governance, democracy and legitimacy 64 ZaöRV 547 (2004); Berman, Paul, Global Legal Pluralism, 80 Southern California Law Review 1155 (2007); Krisch, Nico, The Open Architecture of European Human Rights Law, 71 Modern Law Review 183 (2008); Merry, Sally, New Legal Realism and the Ethnography of Transnational Law, 31 Law & Social Inquiry 975 (2006); Buchanan, Ruth, Legitimating Global Trade Governance: Constitutional and Legal Pluralist Approaches, 57 Northern Ireland Legal Quarterly 654 (2006).Google Scholar

24 See supra, note * about the author.Google Scholar