Transnational Legal Process and State Change
Abstract
Although the terms transnational law and state transformations are increasingly used, we need clearer conceptual work and more empirical study. This Article sets forth and applies a socio-legal approach to the study of transnational legal processes and their effects within countries. First, the Article clarifies the concepts of transnational law, transnational legal process, transnational legal order, state change and transformation, and recursivity. Second, it provides a typology of five dimensions of state change that we can assess empirically - changes in substantive law and practice; broader shifts in the boundary between the state, the market and other forms of social ordering; changes in the architecture and allocations of authority among state institutions; the shaping of markets for professional expertise and expertise’s role in governance; and shifts in normative frameworks and the accountability mechanisms and associational patterns that convey them. Third, it explains the factors that determine the variable effects of transnational legal processes and organizes these factors into three clusters, which are: the character of the transnational legal norm and order; the relation of the transnational legal order to the receiving state in terms of power and the place of intermediaries; and the affinity of the transnational legal norm with demands of domestic elites and other constituencies in light of domestic political struggles and the extent of change at stake. Fourth, it introduces five empirical studies of transnational legal processes’ differential effects in six 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.
Figures
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University of Minnesota
Law School
Legal Studies Research Paper Series
Research Paper No. 10-28
Transnational Legal Process and State
Change: Opportunities and Constraints
Gregory Shaffer
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Transnational Legal Process and State Change: Opportunities and Constraints
by Gregory Shaffer
1
Abstract: Although the terms transnational law and state transformations are
increasingly used, we need clearer conceptual work and more empirical study. This
Article sets forth and applies a socio-legal approach to the study of transnational legal
processes and their effects within countries. First, the Article clarifies the concepts of
transnational law, transnational legal process, transnational legal order, state change
and transformation, and recursivity. Second, it provides a typology of five dimensions of
state change that we can assess empirically — changes in substantive law and practice;
broader shifts in the boundary between the state, the market and other forms of social
ordering; changes in the architecture and allocations of authority among state
institutions; the shaping of markets for professional expertise and expertise’s role in
governance; and shifts in normative frameworks and the accountability mechanisms and
associational patterns that convey them. Third, it explains the factors that determine the
variable effects of transnational legal processes and organizes these factors into three
clusters, which are: the character of the transnational legal norm and order; the relation
of the transnational legal order to the receiving state in terms of power and the place of
intermediaries; and the affinity of the transnational legal norm with demands of domestic
elites and other constituencies in light of domestic political struggles and the extent of
change at stake. Fourth, it introduces five empirical studies of transnational legal
processes’ differential effects in six 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.
1
Gregory Shaffer is Melvin C. Steen Professor of Law at the University of Minnesota Law School. I thank
for their comments Bobby Ahdieh, William Alford, Karen Alter, Elizabeth Boyle, Jeffrey Dunoff, Bryant
Garth, Tom Ginsburg, Terence Halliday, Minzee Kim, Heinz Klug, Bronwen Morgan, Leigh Payne, Judith
Resnik, Brian Tamanaha, Lucie White, the participants at workshops at Arizona State, Harvard, the
University of Minnesota and the University of Wisconsin, panels for the Transnational Legal Orders CRN
in 2009 and 2010 at the Law and Society Association annual meetings, panels at the Society for the
Advancement of Socio-Economics and the Society of International Economic Law meetings in 2010, three
anonymous reviewers, and the students of my seminar on Transnational Legal Orders. All errors remain my
own.
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2
Table of Contents
Introduction
I. The Concepts of Transnational Law, Change and Recursivity
A. Transnational law, legal norms, legal process and legal orders
B. State change and transformation
C. Transnational legal process and non-legal factors in state change
D. Recursivity
II. The Five Case Studies
III. The Dimensions of State Change
A. Changing national law: enactment and practice
B. Changing the boundary of the state, the market and other forms of social ordering
C. Changing the institutional architecture of the state
D. Shaping markets for expertise and expertise’s role in governance
E. Shifting normative frames
IV. The Factors Explaining the Location, Extent and Limits of State Change
A. The character of the transnational legal order and legal norm: legitimacy, clarity and
coherence
1. The relation of a transnational legal order’s power to its legitimacy
2. Variation in transnational law’s hard and soft law nature and the coherence of
transnational legal orders
3. Harnessing historic events
B. The relation of the transnational legal order to the receiving state
1. Power asymmetries and the receiving state
2. The role of intermediaries
C. The Domestic Context: Domestic demands, domestic struggles, and the extent of
change at stake
V. Transnational Legal Process and Recursive Change
Conclusion
3
Introduction
We live in an age of transnationalism. We always have but its intensity has
increased. The origins of United States (U.S.) law, for example, come in large part from
empire. Most remotely, they come from Rome. More close in time, they come from
England and its common law heritage. Most recently, they come from the intensification
of transnational economic and cultural interaction, catalyzing a proliferation of
international, regional and bilateral agreements, regulatory networks and institutions
which foment and promote legal and institutional change. We unconsciously experience
such transnationalism in our daily lives, and we sometimes embrace it. Yet we can also
be anxious about its effects on our social order and our identities. Our laws and legal
systems reflect how we see ourselves and our communities. As the migration of law
across borders intensifies, we can become anxious about it, as reflected in the U.S.
clamor over citations to foreign and international law and legal decisions in federal
courts.
Legal norms in almost all domains of law circulate around the globe. The norms
don’t travel by themselves. They are conveyed by actors, whether instrumentally or
reflexively. They are sometimes codified in international treaties, whether of a binding or
non-binding nature. At other times they are diffused through informal processes
involving bureaucratic networks of public officials, transnational networks of private
actors such as business representatives, non-governmental activists and professionals, and
hybrid combinations. Over time, distinct transnational legal orders may emerge that
impose or impart legal norms governing particular areas of law. Where the transnational
legal norms are relatively clear, coherent and accepted, the transnational legal order can
be viewed in systematic terms. Where they are less so, the transnational legal order is
more contingent and fragile. The effects of transnational legal norm conveyance,
however, are not homogeneous across states. They vary in light of identifiable factors.
Transnational legal processes, the processes through which these norms are constructed
carried, and conveyed, always confront national and local processes which may block,
adapt, translate, or appropriate a transnational legal norm, and spur its reassessment — in
other words, feeding back into the modification of transnational legal norms.
Although the terms transnational law, transnational legal process and state
transformations are increasingly used, we need clarifying conceptual work and empirical
study.
2
This introductory Article provides a socio-legal analytic framework for
empirically assessing transnational legal processes and their deeper implications and
variable impacts within states. First, the Article clarifies the concepts of transnational
law, transnational legal process, transnational legal order, state change and
transformation, and recursivity. Second, it provides a typology of five dimensions of state
change at stake that we can assess empirically to address the deeper implications of
transnational legal processes. Third, it explains the factors that determine the extent,
location, timing, and limits of transnational legal processes, and organizes these factors
into three clusters. Fourth, it introduces five empirical studies of transnational legal
2
There have, for example, been intensive debates over the concept and operation of “legal transplants”
among comparative law and socio-legal scholars, calling for empirical work. See e.g. Nelken and Feest
2001. Yet there is a distinct lack of, and thus need and call for, empirical work. See e.g. Twining 2005: 237
(“Perhaps the most striking aspect of the literature is that it very rarely tells us in any detail about actual
impact on the ground).
4
processes’ differential effects in six regulatory areas that illustrate its points. The overall
aim is to provide an overarching framework for empirical investigation regarding
transnational legal processes from which middle range theory can be built.
The Article builds from the five comparative empirical studies that follow it, each
of which are grounded in close attention to regulatory struggles and changes in countries.
Each illustrates socio-legal approaches to how transnational legal processes work and
interact with national law and institutions. Through the comparative framework, the
studies examine variation in the reception and appropriation of transnational legal norms.
They cover the following countries and regulatory domains:
Corporate bankruptcy law in China, Korea, and Indonesia, by Terence
Halliday;
Patent law and competition law in South Africa, by Heinz Klug;
Anti-money laundering law in Brazil and Argentina, by Maira Rocha
Machado;
Municipal water services regulation in Chile, Bolivia and Argentina, by
Bronwen Morgan; and
* Primary education law and policy in over seventy low- and middle-
income countries, by Minzee Kim and Elizabeth Boyle.
The studies were chosen based both on their coverage of a range of legal domains
in a range of countries in Asia, Africa and South America, and the fact that they build
from sustained empirical research projects in particular fields conducted over years.
Moreover, many studies of law and globalization have focused exclusively on OECD
nations, and these studies thus help fill a gap.
3
The countries studied in this volume vary
in terms of their institutional legacies, their political and cultural contexts, and their
relations to sites of transnational lawmaking. The regulatory areas likewise vary from
financial and business regulation to social and economic rights. Most importantly, each of
the studies builds from long-term empirical research projects that engage with the
interaction of transnational law and particular countries.
Each of the studies is conducted within a systematic research design that
examines the interaction of transnational and national legal processes in particular
regulatory domains in different countries over time. Each study compares different
countries’ responses in a single regulatory field (or in one case, that of Klug, a single
country and transnational/national interaction in two regulatory areas), so that the authors
can assess variation in transnational influence.
4
Four of the studies entail field work
3
See e.g. Twining 2005: 204 (“Most of the leading studies have not deviated far from the ‘Country and
Western tradition’ of comparative law and a naïve model of diffusion”). There is a particularly large
amount of work on European states in the context of the European Union, as well as of Western social
welfare states.
4
The studies can be viewed as combining international political economy and comparative political
economy, and international and comparative legal analysis, within a single socio-legal frame. For two
leading socio-legal books in a similar vein, see Halliday and Carruthers 2009 (focusing on the globalization
of insolvency law and its reception in China, Korea and Indonesia); and Merry 2006, 29 (“My approach is
to focus on a single issue, the movement against gender violence, in five local places in the Asia-Pacific
region and in the deterritorialized world of UN conferences, transnational NGO activism, and academic,
legal and social service exchanges of ideas and practices”).
5
involving participant observation and extensive interviewing of relevant actors. The fifth
study (by Kim and Boyle) uses quantitative methods together with an historical analysis,
to assess the relative impacts across over seventy low-income and middle-income
countries of conflicting human rights and neoliberal development norms over a twenty-
one-year period. Overall, the methods used include systematic interviewing,
participant/observation, ethnography, documentary evidence, archival research and
surveys, as well as (in one case) quantitative regression analysis.
This Article conceptualizes and provides a map for what transnational legal orders
and legal processes are and do. It gives specific examples from the accompanying studies
to illuminate its points regarding both the commonalities and particularities of state
change in light of identified explanatory factors.
5
Although the case studies in this
volume focus primarily on a range of developing countries, the analytic framework used
and the dimensions of change and factors assessed should apply across countries and
regions, including the United States and European Union (E.U.).
6
The primary difference
between the U.S. and E.U. and the countries studied in this volume lies in the general
direction of transnational flows, with the U.S. and E.U. more likely being producers of
transnational legal norms, as opposed to being appropriators of them. In a globalized
world, much of law is subject to transnational influences and pressures, but more
powerful states are the primary exporters of legal norms.
This introductory framework Article is in five Parts. Part I defines and explains
the key concepts used, transnational law and legal norms, transnational legal process,
transnational legal orders, state change and transformations, and the recursivity of these
processes. Part II introduces the five studies. Part III sets forth and examines five
dimensions of change within states that transnational legal processes can spur — changes
in substantive law and practice; broader shifts in the boundary between the state, the
market and other forms of social ordering; changes in the institutional architecture of the
state; the shaping of markets for professional expertise and expertise’s role in
governance; and shifts in normative frames which are embedded in and expressed
through new transnational accountability mechanisms and associational patterns.
Parts IV maintains that variation in the impacts of transnational legal processes
should be assessed as function of three clusters of factors — the character of the
transnational legal norm and legal order in terms of their legitimacy, clarity, and
coherence; the relation of the transnational legal order to the receiving state in terms of
power and the place of intermediaries conveying the legal norm; and the affinity of the
transnational legal norm with domestic demand in light of domestic political contests,
5
The project builds from these studies and other work carried out over the last four years as part of a
collaborative research network within the Law and Society Association. These and other papers exploring
these questions were presented and discussed at the Law and Society Association (LSA) annual meetings in
Baltimore, Berlin, Montreal, Denver and Chicago from 2006-2010. The LSA Collaborative Research
Network on Transnational Legal Orders is described at http://www.lawandsociety.org/CRN/crn4.htm#36
.
6
On the migration of foreign and international law into the United States and European Union respectively,
see, e.g., Resnik 2006 (examining the history of migration of law into the United States and the multiple
ports of entry, from the federal to the local); Resnik 2008, at 46 (“…as an empirical matter, one finds the
frequent borrowing of words and text from elsewhere,” noting constitutional borrowing of texts, rewriting
of texts and reinterpreting of texts); Scott 2009, at 908-928 (describing the effect of the European Union’s
REACH program on chemical regulatory reform in the US); Scott 2003, 228-232 (noting constraints on
E.U. regulation imposed by WTO agreements including SPS, TBT, and GATT); and Shaffer 2000
(examining the impact of European privacy law on U.S. domestic privacy policies and practices).
6
institutional path dependencies, legal culture, and the extent of change at stake. These
factors determine the extent and limits of transnational law’s impact, and thus what is
normatively at stake. Part V explains how national responses to transnational legal
processes, including in less powerful states, can spur reassessments of the transnational
legal norm in question, resulting in dynamic, recursive processes. We then conclude,
summarizing the main points and calling for further research on these questions across
countries and regulatory domains.
I. The Concepts of Transnational Law, Change, Transformation and
Recursivity
We first need to define and clarify the key concepts used in this Article’s
approach to assessing transnational legal processes and state change in order to map out
an agenda for empirical study: those of transnational law, transnational legal norm,
transnational legal process, transnational legal orders, change, transformation, and
recursivity. In other words, this Article’s aim, in the tradition of the analytic work of
William Twining, is “to provide concepts for asking questions, framing hypotheses and
pursuing empirical inquiries.”
7
A. Transnational law, legal norms, legal process and legal orders. Since the rise
of sovereign states in the seventeenth century associated conventionally with the Treaty
of Westphalia, law has been associated with state law and national legal systems. Law, as
John Glenn writes, was “an essential element… of national construction.”
8
Public
international law was based on and came into existence with the creation of states,
governing their relations and providing for their mutual recognition.
9
Private international
law provides complementary rules and standards to govern situations where more than
one state asserts jurisdiction over a transaction or event. The concepts of public and
private international law are thus both state-centric, addressing relations between nation
states and between national legal systems, as reflected in the term “inter-national.”
10
With the fall of the Berlin Wall and the spread of economic globalization,
scholarly work has increasingly applied new concepts of “global” and “transnational
law,” but often without clear conceptualizations of either. Under each of these two
overlapping concepts, law is, to a certain extent, being denationalized, since the legal
norms may not be formally part of international or national law as conventionally
construed. Global law posits, by its name, that universal legal norms are being created
and diffused globally in different legal domains that may or may not involve agreements
between states.
11
The concept of transnational law has been developed, in parallel, to
7
Twining 2009, 107.
8
Glenn 2003, 839.
9
Id. See also Malanczuk 1997: 3 (“International law… is primarily concerned with the the legl regulation
of the international intercourse of states”).
10
For an earlier distinctions between international law and transnational law, see Jessup 1956 (discussed
below), and between international and transnational society, see Friedmann 1964: 37 (“international society
is represented by the traditional system of interstate diplomatic relations, the relations of ‘coexistence’”).
11
See e.g. Boyle & Meyer 1998, 213-232 (applying a world polity model); and Braithwaite and Drahos
2000
(examining the relative role of different mechanisms in thirteen areas of business law) . In the legal
academy, the global administrative law project chose the title of “global” administrative law under the
intuition that regulatory structures are being pressed to respond to common demands “that have a common
7
address legal norms that do not clearly fall within traditional conceptions of national and
international law, but are not necessarily global in nature. The concept of transnational
law can be narrower or broader, depending on the concept’s user, but it generally
comprises legal norms that apply across borders to parties located in more than one
jurisdiction. Two examples of the transnationalization of law that fall outside traditional
conceptions of international law are the formation by private actors of substantive law
that applies across borders (such as the “new lex mercatoria”),
12
and the rise of common
approaches of national judges and regulators to cross-border legal and regulatory issues
as a result of transjudicial and transgovernmental regulatory dialogues.
13
From a broader
conception, transnational legal orders can comprise both hard and soft rules, can be
bilateral, regional or multilateral in nature, can be constructed by states or non-state
actors, and can be directed at states, corporations or individuals.
14
Although the term transnational law is increasingly used, authors are not always
careful in specifying what they mean by it. The increasing use of the term can be distilled
into two conceptualizations, which can be differentiated by whether they focus on
subjects (law addressing transnational activities and situations) or on sources (law,
whether international or foreign, that is imported and exported across borders).
15
Most
legal studies that use the term transnational law refer to law that targets transnational
events and activities — that is, transnational situations which involve more than one
normative character, specifically an administrative law character. The growing commonality of these
administrative law-type principles and practices is building a unity between otherwise disparate areas of
governance.” Kingsbury 2009, 3. Such global law may be formulated in multilateral institutions that have a
global reach, by transnational networks that aim to have a global impact, or in influential states, such as the
United States, and diffused globally.
12
See Clive Schmitthoff, International Business Law: A New Law Merchant, 2 Current L. & Soc. Probs.
129 (1961); and from a socio-legal perspective, Teubner 1997. For an important account of the
development of transnational private law-making in consumer and corporate governance law that involve
the interaction of publicly and privately-made law, see e.g. Calliess & Zumbansen 2010. See also the work
on global legal pluralism, such as Berman 2007; Benda-Beckmann 2006 (excellent introduction to a special
issue regarding the dynamic interactive relationship of state and non-state legal orders in a range of
countries and issue areas); Teubner 2007.
13
Slaughter 2004 (on transjudicial and transgovernmental regulatory networks); see also Buxbaum (2006)
(contending “that transnational regulatory litigation can, under proper circumstances, enable national courts
to participate in implementing effective regulatory strategies for global markets”); and Craig Scott &
Robert Wai, 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 (Christian Joerges et al. eds., 2004).(arguing for a
more activist conception of the role of private law courts in a process of transnational comity with respect
to transnational corporate liability and human rights concerns); Djelic et al. (2006); Hepple 2005: 4 (on
transnational labor regulation); Wai (2005); and Wai (2008) (seeing “transnational private law as a
decentralized and intermediate form of transnational governance that recognizes and manages the
multiplicity of norms generated by plural normative systems in our contemporary world society”).
14
In his seminal 1956 Storrs Lecture, Philip Jessup turned to the concept of transnational law because he
found “the term ‘international’ misleading since it suggests that one is concerned only with the relations of
one nation (or state) to other nations (or states).” Jessup 1956, 1.
15
The formal divide between international and national law is likewise sometimes defined by subjects (law
addressing states versus persons) and sometimes by sources (treaties versus statutes). According to
traditional conceptions, the subjects of international law are states, while the subjects of national law are
persons and institutions, although the development of international criminal and human rights law, among
other areas, radically challenged this conception.
8
national jurisdiction.
16
Specific transnational legal rules and legal doctrine can develop to
address these situations. (We dub this concept, Transnational Law Applying to
Transnational Situations). Many socio-legal studies, however, including those in this
volume, conceive of transnational law and legal norms in terms of the source of legal
change within a national legal system. In this latter conception, transnational law consists
of legal norms that are exported and imported across borders, and which involve
transnational networks and international and regional institutions that help to construct
and convey the legal norm within a field of law. (We dub this concept, Transnational
Law as Transnational Construction and Flow of Legal Norms).
In his famous 1956 Storrs Lecture, Judge Philip Jessup defined “transnational
law” in the first “situational” sense as “all law which regulates actions or events that
transcend national frontiers.”
17
He stressed that “[b]oth public and private international
law are included, as are other rules which do not wholly fit into such standard
categories.”
18
This concept is a functional and practical one, reflecting a professional
concern that, since both international and national law are inadequate to address the flow
of actions and the impact of events across borders, we need a more accurate and useful
concept to govern these situations.
19
The growing use of the concept of “transnational
law” in this sense reflects a functional legal response to increasing economic
interconnectedness, sometimes involving new international treaties and regimes, and
sometimes involving the application of national law to events that occur outside a state’s
borders but have effects within it. The concept permits legal academics to assess and
advocate (or contest) particular transnational legal rules and legal doctrine applied by
courts and other bodies to transnational situations.
In an excellent conceptual analysis, Craig Scott examines three perspectives of
transnational law which lie within this first conception, which he labels traditionalist,
decisional and socio-legal.
20
First, he notes that the concept of transnational law, at a
minimum, simply aggregates traditional concepts of public and private international law.
Public international law addresses relations between states, while private international
law (in its traditional meaning) addresses conflicts between national jurisdictions
16
These studies build from and cite the famous lecture of Jessup 1956. See e.g. Koh 2004, 53 (citing
Jessup’s definition of law addressing “events that transcend national frontiers”); Burley 1993 (“I define
transnational law to include all municipal law and a subset of intergovernmental agreements that directly
regulate transnational activity between individuals and between individuals and state governments,” citing
Jessup); Slaughter 2000, 245 (“Transnational law has many definitions. I mean to include here simply
national law that is designed to reach actors beyond national borders: the assertion of extraterritorial
jurisdiction. Extraterritorial jurisdictional provisions are often the first effort a national government is
inclined to make to regulate activity outside its borders with substantial effects within its borders,” citing
Jessup); Hathaway 2005, 473 n.11 ("transnational law includes all law that has cross-border effect,
whereas international law refers only to treaties or other law that governs interactions between states,"
citing Jessup); Dibadj 2008 (classifying the range of sources “applicable to cross-border events” together
with the range of actors involved, citing Jessup).
17
Jessup 1956, 2.
18
Id.
19
Jessup 1956, 7 (“The more wedded we become to a particular classification or definition, the more our
thinking tends to become frozen and thus to have a rigidity which hampers progress toward the ever needed
new solutions of problems whether old or new”). See also Steiner, Vagts, and Koh 1994, 2 (“transnational
law” addresses “transnational problems”).
20
Scott 2009.
9
asserting authority over the transnational activities of private actors.
21
These private law
situations give rise to the development of doctrinal principles and rules regarding choice
of law, jurisdiction, and enforcement and recognition of judgments.
22
Second, as national
courts and international arbitrators issue an increasing number of decisions to address
these situations, they create disaggregated clusters of principles and rules that can be
extracted, used by advocates, and guide subsequent decisions.
23
Third, as a pool of legal
norms in this area becomes relatively coherent and systematized over time, we may
discern the emergence of a distinct body of law that is not “statist,” but “transnational,”
one that is developed by the ongoing interaction of public and private actors across states,
including national judges, international arbitral bodies, and international private law rule-
making institutions.
The concept of Transnational Law as Transnational Construction and Flow of
Legal Norms, in contrast, focuses on the transnational production of legal norms and
institutional forms in particular fields and their migration across borders, regardless of
whether they address transnational activities or purely national ones. The concept
includes legal norms that are substantive and specific to discrete areas of law, and not just
general principles of conflicts of law, nor only substantive law applied to cross border
business transactions. In other words, this conceptualization of transnational law
comprehensively includes public and private international law (with their traditional
state-based focus), global law (with its universalist pretensions), and non-globalized law
that applies to more than one state. Users of this concept focus on the transnational
construction and migration of legal norms, by which we refer, for heuristic purposes, to
norms that lay out behavioral prescriptions issued by an authoritative source that take
written form, whether or not formally binding or backed by a dispute settlement or other
enforcement system.
24
Transnational legal norms include those purported to be global
and those that are more limited in their reach. The source of the transnational legal norm
may be an international treaty, international soft law, privately created codes or
standards, a foreign legal model promoted by transnational actors, or a combination of
them.
This concept of Transnational Law as Transnational Construction and Flow of
Legal Norms is used to assess how law that is produced transnationally migrates across
borders, whether it is formally enacted by national legislatures, is directly applied by
21
In Europe, private international law continues to mean conflict of laws, and is a standard course in the
law school curriculum. In the United States, academics often colloquially refer to private international law
as the law addressing international business transactions. While such law is typically national, it can
include non-state law, or lex mercatoria. A course under the name “International Business Transactions” is
standard in the U.S. law school curriculum.
22
In focusing on law applying to foreign transactions, Jessup addressed issues of jurisdiction and choice of
law in particular. The three chapters resulting from the lectures respectively were entitled the “The
Universality of Human Problems,” “The Power to Deal with the Problems” [i.e. jurisdiction], and “The
Choice of Law Governing the Problems [i.e. conflicts of law].” Jessup 1956
23
Scott 2009, 871 (“this approach to ‘law’ understands law in disaggregation, not as whole legal orders or
systems but rather as discrete norms or normative clusters that are capable of reasoned extraction from the
whole and then of being brought to bear on constantly changing particulars.”) .
24
This conception of legal norms is captured in the dichotomous conception of hard and soft law along the
dimensions of precision, obligation and delegation in Abbot and Snidal 2000. Cf. Halliday 2009, 6 (“norms
in this article refer to formalized codifications of behavioral prescriptions that are accepted by subjects as
legitimate and authoritative”).
10
national courts, shapes interpretation of existing domestic law, or otherwise affects
private behavior. The concept is not a doctrinal or functional one, but a socio-legal and
methodological one that is used to assess how transnational-induced legal change occurs
and what type of effects it has. The concept, in other words, does not aim to delineate a
particular body or field of law or legal doctrine, but cuts across fields of law and provides
an analytic means for assessing transnationally-induced change in a globalized world. It
provides a framework for empirical research.
25
In sum, these different conceptions of
transnational law and legal norms are adopted because they are useful for different
purposes.
The two concepts have a clear overlap since the cross-border construction and
flow of legal norms is often catalyzed by cross-border activities and policy concerns.
26
Yet under this second conception of transnational law, the legal norms in question
address not only transnational activities, but also purely national ones. For example,
primary education law and municipal water services regulation, studied by Kim and
Boyle and Morgan, are exclusively national activities, but they can be significantly
shaped by the transnational construction and flow of legal norms, whether human rights
norms or neoliberal law and economics norms. The transnational legal norms in question
may be adopted voluntarily in a planned fashion pursuant to harmonization efforts, or
adopted without a plan as part of a process of diffusion conveyed through transnational
actors and interactions.
27
Regardless of the transnational source and nature of the legal
norm, it is given particular force and effect when it becomes embedded in a national legal
system.
Harold Koh captures this latter conception of transnational law, in part, when he
combines the vertical and horizontal dimensions of the transnational flow of legal norms:
Perhaps the best operational definition of transnational law, using computer-age
imagery, is: (1) law that is “downloaded” from international to domestic law: for
example, an international law concept that is domesticated or internalized into
municipal law, such as the international human rights norm against disappearance,
now recognized as domestic law in most municipal systems; (2) law that is
“uploaded, then downloaded”: for example, a rule that originates in a domestic
legal system, such as the guarantee of a free trial under the concept of due process
of law in Western legal systems, which then becomes part of international law, as
in the Universal Declaration of Human Rights and the International Covenant on
Civil and Political Rights, and from there becomes internalized into nearly every
legal system in the world; and (3) law that is borrowed or “horizontally
transplanted” from one national system to another: for example, the “unclean
25
For use of the term in a similar “methodological” way, see Zumbansen 2010. See also Calliess and
Zumbansen 2010: x, 11, an important contribution regarding transnational private law (understanding
transnational law “primarily as a methodological perspective rather than as a demarcated subsgtantive field
of law”).
26
Friedman 1996 (“The global economy is the engine driving convergence, and is what stimulates jurists to
draft model laws and to worry about harmonization. In fact, harmonization and model laws are, in an
important sense, merely responses to processes that have already taken place.”).
27
Cf Friedman 1996, 69-72; and Simmons, Dobbin, and Garrett 2008.
11
hands” doctrine, which migrated from the British law of equity to many other
legal systems.
28
Koh’s metaphors, while helpful in conveying the idea of transnational legal processes,
risk reducing their complexity since the processes, in practice, are multifold,
simultaneous, and iterative, involving disparate actors, applications, and flows in multiple
directions. For some, the third example used by Koh broadens the analysis too far to
include all migrations of legal norms. In practice, however, there likely will be both
horizontal and vertical flows which constitute a transnational legal order so that this
concern should be limited. Transnational legal orders will build from national models and
national actors will deploy transnational networks and institutions as means to export and
diffuse national legal norms. We thus define the concept of Transnational Law as
Transnational Construction and Flow of Legal Norms, for heuristic purposes, as law in
which transnational actors, be they transnational institutions or transnational networks
of public or private actors, play a role in constructing and diffusing legal norms, even if
the legal norm is taken in large part from a national legal model, such as a powerful state
like the United States.
29
This Article builds from Koh’s important conception of transnational legal
processes, while aiming to improve the tools for empirically assessing their implications
for state change and the factors that explain its timing and extent. Critically for our
purposes, Koh did not provide a framework for assessing the conditions and factors
determining the extent, location, and limits of transnationally-induced legal change. He
likewise did not engage in extensive empirical study of them. Moreover, he did not assess
the source of transnational legal norms, and whether transnational legal norms reflect a
structural tilt in favor of some interests over others. In contrast, this Article and the
studies in this volume “beam the searchlight of social science” on the transnational
sources of legal norms, their reception in countries, and the broader dimensions of state
change that are implicated and thus at stake.
30
Although this particular Article and
volume focus primarily on the factors leading to the variable reception of transnational
legal norms within countries and the dimensions of change at stake, the studies also
highlight the importance of addressing the source, production, and recursive
reconsideration and change of these legal norms over time.
A key concept for this project is that of transnational legal process, the process
through which the transnational construction and conveyance of legal norms takes place.
Transnational and international legal norms do not travel by themselves. They are
constructed and conveyed by actors, including by government officials, members of
international secretariats, professionals, business representatives, and civil society
activists. Actors with agendas often drive these processes. At other times, the legal norms
may be carried less consciously as a reflection of intensified cross-border interaction
characterizing economic and cultural globalization. For those focused solely on
international law — whether they define international law narrowly (to cover only
binding law between states) or broadly (to encompass soft law norms and non-state
28
Koh 2006, 745-46.
29
Pursuant to transnational processes, in fact, legal models developed in the United States and Europe are
often circulated globally. See e.g. Braithwaite and Drahos 2000.
30
The quotation is from Friedman 1996, 65.
12
actors) — this project’s assessment of the dimensions of state change implicated by
transnational legal processes and the factors that facilitate and constrain such legal
change, are central for understanding international law.
Transnational legal processes occur differentially in particular legal areas,
potentially constituting distinct transnational legal orders that are semi-autonomous.
31
The term transnational legal order is conceptualized as a collection of more or less
codified transnational legal norms and associated institutions within a given functional
domain. Where the transnational legal norms are relatively clear, coherent and accepted
in practice, the transnational legal order is more salient and may be viewed in systematic
terms. Where they are less so, the transnational legal order is more contingent and fragile
and thus less likely to be effective in producing domestic legal and institutional change.
In other words, transnational legal processes can, over time, constitute transnational legal
orders through processes of ongoing articulation and re-articulation of legal norms and
their application. Transnational legal orders arise in many areas of law, including human
rights, criminal, regulatory, and business law, involving different degrees of consensus
and coherence. They may include global, multilateral, regional and bilateral norms and
institutions. They may encompass traditional international and supranational
organizations, transgovernmental regulatory networks, and the activities of transnational
corporate and civil society actors, whether or not working through formal institutions.
32
The existence of transnational legal orders may be reflected in treaties, non-binding
standards, model codes, and different forms of monitoring and dispute settlement. These
instruments include amalgams of hard law and soft law varying in their obligatory nature,
precision, and institutionalization of monitoring, peer-review and dispute settlement
mechanisms.
33
The concept of transnational legal orders is similar to that of global administrative
orders used in the global administrative law project out of New York University School
of Law, although this project is broader in ambition and scope. Both projects depict legal
orders arising beyond the nation-state that comprise not only international organizations,
but also bureaucratic networks of public officials, hybrid public-private networks, and
networks of purely private parties creating hard and soft law rules and norms.
34
The
concept of transnational legal orders, however, comprises more than administrative law
principles and procedural rules, and it includes substantive areas of law not traditionally
touched by them, such as human rights trials
35
and letters of credit used in the private sale
31
These orders can be viewed as semi-autonomous functionally differentiated fields. Cf. Teubner 1997.
32
Transnational institutions (concomitantly) refers to institutions whose members come from more than
one jurisdiction, but are not necessarily states. For a related conception, see Fischer-Lescano & Teubner
2004: 1009 (viewing transnational legal regimes in terms of the “external reach of their jurisdiction along
issue-specific rather than territorial lines, and which claim a validity for themselves”).
33
Abbott and Snidal 2000; Shaffer & Pollack 2012 (forthcoming).
34
Kingsbury, Krisch, and Stewart 2005: 25. The Global Administrative Law project defines global
administrative orders to include: “(1) administration by formal international organizations; (2)
administration based on collective action by transnational networks of cooperative arrangements between
national regulatory officials; (3) distributed administration conducted by national regulators under treaty,
network, or other cooperative regimes; (4) administration by hybrid intergovernmental–private
arrangements; and (5) administration by private institutions with regulatory functions.”
35
See e.g. Sikkink forthcoming 2011 (studying the emergence of norms of criminal liability for violations
of human rights that has certain systematic elements and that have emerged in a decentralized way) .
13
of goods.
36
The concept of transnational legal order also does not (by its name) imply
that it has a “global” reach.”
37
Rather, the concept of discrete transnational legal orders
facilitates the analysis of both their heterogeneous nature (including whether they are
complementary or conflictual)
38
and their variable effects, which may sometimes be
global in nature, but which are more likely to exhibit considerable variation.
B. State Change and Transformation. We need to specify what we mean by state
change and transformation. First, in terms of the state, for heuristic purposes, we refer to
the Weberian conception of a state which wields formal authority, exercises compulsory
jurisdiction, and monopolizes the legitimate use of force within a territory.
39
Yet at the
same time, we recognize that such a conception is an ideal type since state institutions
exercise varying amounts of actual authority, and one must disaggregate the concept of
the state in order to assess empirically how the state changes over time. Moreover, the
very concept of transnational legal processes problematizes the idea of a state/global or
state/transnational dichotomy. As Saskia Sassen writes, while the state remains central as
a political unit, and thus central for purposes of socio-legal study, the state contributes to
its own change through its active collaboration with and enabling of transnational
forces.
40
As regards, change and transformation, we need to clarify what they consist of
and what to look for in terms of the location and timing of change. Transnationally-
induced change can affect the state generally or only discrete parts of the state (the
location of change), and is thus a “differentiated process.”
41
Change occurs along
different dimensions, such as legal, institutional, professional, and normative, which we
typologize and examine in Part III. Change can occur evolutionarily or revolutionarily,
episodically, incrementally, or dramatically as in Eastern Europe in the 1990s (the timing
of change). The concept of transformation refers to significant or fundamental change,
change which can vary in terms of time and space.
42
The threat of transformation of the
state can lead to a protracted politics both locally and transnationally to forestall change.
Diachronic empirical studies are thus important since we may not know the extent of
change until after some struggle, possibly a protracted one.
36
Levit 2008.
37
In this respect, the distinct aim of the global administrative law project is to assess the relevance of
traditional national administrative law tools to evaluate and improve the accountability of global
governance mechanisms. Kingsbury, Krisch, and Stewart 2005, 29 (focus on “principles, procedural rules,
review mechanisms, and other mechanisms relating to transparency, participation, reasoned
decisionmaking, and assurance of legality in global governance”).
38
Shaffer & Pollack 2008.
39
By “state” we mean “national state” as used by Charles Tilly in his classic work Coercion, Capital and
European States: AD 990-1992. Tilly (1992, 2-4) defines “national states” as “states governing multiple
contiguous regions and their cities by means of centralized, differentiated, and autonomous structures,” and
“states” as “coercion-wielding organizations that are distinct from households and kinship groups and
exercise clear priority in some respects over all other organizations within substantial territories.”
40
Sassen 2006: 3 (“The national is still the realm where formalization and institutionalization have all
eached their highest level of development,” but “the national is also often one of the key enablers and
enactors of the emergent global scale”); Sassen 2007: 46, 56.
41
Sassen 2007: 34.
42
For important studies on this question, see Campbell 2004 (chapter 2 on the problem of change);
Grossman and Grossman 1971: 4-6 (on law and magnitude and scope of social change); Held et al. 1999;
Leibfried and Zürn 2005; Sorensen 2004.
14
The extent of change is always contingent, so that at times studies will speak of
transnational influence, at times of transnational failure, at times of appropriation of
transnational law, and at times of significant transnationally-induced change. The
resulting legal change may occur symbolically (on the books in terms of constitutional,
statutory and administrative law revisions, or the creation or modification of agencies and
courts) or practically (in terms of established patterns of institutional and individual
behavior). While much of traditional law scholarship focuses on the symbolic,
43
the
studies in this volume address changes in not only formal law and institutional structures,
but also institutional and social practice.
The effective importation of transnational legal norms and institutional forms
often confronts a dilemma. While importation is facilitated if the legal norm can be
translated and appropriated to fit the local context, the more that the norm is adapted, the
less transformative it may be. As Sally Merry writes regarding human rights law and
gender violence, legal norms “are more easily adapted if they are packaged in familiar
terms and do not disturb established hierarchies, but they are more transformative if they
challenge existing assumptions about power relationships.”
44
Because transnational law
interacts with domestic institutional, political and cultural contexts, changes are often
evolutionary and incremental over time.
C. Transnational Legal Process and Non-Legal Factors in State Change. There
are of course many transnational impacts besides law on nation states, reflecting
processes of economic and cultural globalization and global structures of political and
economic power. Many earlier studies have examined these transnational impacts, and in
particular, the phenomena of economic and cultural globalization.
45
Transnational law of
course is affected by these larger political, economic and social forces.
46
It reflects and
conveys them, embodying and institutionalizing values, norms and prescriptions for
social organization and behavior. It is thus difficult if not impossible to separate the
impacts of law from other forces, and the accompanying studies do not attempt to do so.
47
Yet at the same time, counterfactually remove the technology of transnational law from
the story of state change and the story would surely be different.
However one views the relation of transnational law to larger processes of
globalization and the exercise of power, the focus on transnational legal norms and legal
43
See e.g. Watson 1974, 20 (“It cannot be doubted either that a rule transplanted from one country to
another, from Germany to Japan, may equally operate to different effect in the two societies, even though it
is expressed in apparently similar terms in the two countries. But our first concern will be with the
existence of the rule, not with how it operates within the society as a result of academic or judicial
interpretation”).
44
Merry 2006, 222. See also Campbell 2004, 87.
45
Held 1999; Leibfried and Zürn 2005; Sorensen 2004; Campbell 2004; Sassen 2006, 2007.
46
As Lawrence Friedman writes, “Commerce, after all, is the most promiscuous crosser of national
borders,” and thus gave rise to the law merchant (lex mercatoria), an ongoing form of transnational law.
Friedman 1996, 65. Transnational law is driven in part by the mismatch between global markets and
national law.
47
The purpose here is not to evaluate broader theories of the relation of law and social change in terms of
whether law is primarily (or solely) a product of social forces and thus has little (or no) autonomy, or
whether law is an independent producer of change. On the vigorous debates about legal autonomy and its
limits, see Cotterrell 1992, 44-65. By assessing transnational legal processes, in other words, one need not
privilege law and legal explanations for political and social change.
15
process provides us with a vehicle for assessing transnational influences on state change.
Transnational legal norms embody prescriptions for the regulation of activities in
particular functional domains. They can shape the perception and definition of problems
and appropriate responses to them. They provide a framework for actors to weigh
particular regulatory alternatives to address particular situations. They make available
tools and models for reshaping institutional arrangements for the development,
application, and enforcement of law to address these situations.
To understand change in regulatory fields requires an assessment of “the various
processes by which institutions are continually reproduced and modified through …
actors’ practices.”
48
Transnational legal processes engage relevant actors in an iterative
process of interaction which can affect their practices, leading to incremental or more
dramatic change. The study of transnational legal processes thus provides a window for
assessing changes in legal norms, institutional organization, and practices within states.
D. Recursivity. The socio-legal approach represented in this volume combines the
examination of transnational and national processes within a single frame by focusing
inquiry on particular regulatory fields, as opposed to general global and transnational law
principles. In this way, the studies can assess how the transnational and national are
interpenetrated within a field. This dual focus is captured in the concept of recursivity,
developed by Terence Halliday and Bruce Carruthers.
49
Recursivity connotes a
multidirectional, diachronic process of legal change. From this perspective, transnational
legal process is viewed not as unidirectional, but a process in which the transnational and
local are held in tension, in which actors engaged in transnational legal processes seek to
influence local lawmaking and practice, and in which national legal norms, adaptations,
and resistances provide models for and feed back into transnational lawmaking.
50
This conception of transnational legal process as recursive does not reify it as
singular and absolute in content, but rather accounts for its historical specificity and
provisional and changing nature. Some sort of legal settlement may occur which persists
over time until that settlement is destabilized. Transnational legal process is thus not
reduced to a process of filling in “gaps” in law’s implementation, but rather seen in
dynamic terms in which national, international, and transnational political, social, and
legal processes interact. The recursivity approach posits that changes and transformations
of states will be a function of three processes operating concurrently and cyclically — a
politics within international and transnational processes; a politics within domestic
48
Koslowski and Kratochwil 1994, 227. In a related vein, see Moore 1973: 722 (looking at distinct semi-
autonomous social fields in terms of their processual characteristics).
49
Halliday and Carruthers 2007; Halliday 2009. The concept of “recursivity” of legal ordering is quite
distinct from the concepts of “reflexivity” and “autopoiesis” used in the work of Niklas Luhmann and
Gunther Teubner. See e.g. Luhmann and Teubner 1982, 122 (viewing the legal system as consisting of all
social communication that contains some reference to law); and Teubner 1993, 37 (viewing legal
communication as circular and reflexive so that it is relatively autonomous from the social order).
50
For similar conceptions focusing on the development of international law, see Rajagopal 2003, 3
(“concerned with the role of international law in shaping the ideas and practices in the field of development
and with the role of ideas and practices in the field of development in shaping international law”) ; and
Waters 2005, 490 (“I argue that the relationship between domestic and international law is co-constitutive
in nature--that is, a mutually constraining and mutually reinforcing relationship in which international
norms not only shape domestic law and culture, but are in turn shaped by domestic law and culture.”) . See
also Ahdieh 2006. .
16
processes; and a politics between them involving intermediaries, as we examine in Part
IV.
51
II. The Five Case Studies
Before we lay out a typology for the study of the dimensions of state change and
the conditions and factors determining the location, extent and limits of state change, we
introduce the five case studies in greater detail so that we may refer to them as
illustrations for conceptual points throughout this Article.
Terence Halliday’s study, Architects of the State: International Organizations and
the Reconstruction of States in East Asia, examines the role of international organizations
in restructuring corporate bankruptcy law in East Asia, focusing on China, Korea and
Indonesia. He starts by noting how “doggedly nationalistic” were the United States and
England in initially developing and reforming their national models for bankruptcy in the
1970s and 1980s. These models provided templates for the creation of global bankruptcy
law norms promoted by international institutions. He examines how international and
regional financial institutions and, eventually, the United Nations Commission on
International Trade Law (UNCITRAL) drew from these national models in light of three
sets of pivotal events: the fall of the Berlin Wall, a series of debt crises affecting pivotal
developing and transitional economies, and the Asian financial crisis at the end of the
1990s. Clubs of nations, in particular the G-7 and G-22, with the U.S. playing a
particularly influential role, first instructed the international financial institutions to
develop norms and create regulatory frameworks to address national credit crises more
systematically and protect the global financial system. In the post-Washington consensus,
the international financial institutions stressed the role of law and institutions, such as
courts and regulatory agencies, as critical for effective policy, together with trained
professionals who service them. International institutions worked with international
professional associations of insolvency practitioners, including the International Bar
Association, to draw from their expertise in consolidating a model set of insolvency
norms and practices adopted through UNCITRAL.
Halliday assesses the broader implications that these globalized legal norms raise
within states, and, in particular, the institutional architecture of states, including the
relative roles of executive departments, independent agencies, legislatures, and courts. In
Indonesia, in the midst of the financial crisis, the international financial institutions used
their leverage to spur not only substantive and procedural legal reforms, but also the
creation of entirely new state institutions, including a new Commercial Court that would
be responsible for corporate bankruptcies, and an out-of-court agency for negotiations
between debtors and creditors. In Korea, the state shifted power over corporate
insolvency from executive departments to courts, which included functional equivalents
of a U.S. model of a specialized bankruptcy court. In China, the government adopted a
law which outsources significant functions for the restructuring of companies to courts
and private professionals, adopting global insolvency norms enunciated by the World
Bank and UNCITRAL, albeit along China’s timeline. Halliday nonetheless shows how
the transnational promotion of legal and institutional reform, although seemingly
technical, raise fundamental issues of state restructuring that implicate power
51
Halliday and Carruthers 2009 (examining the iteration of these processes until some kind of settlement is
reached).
17
configurations within states and spur resistance to change. This resistance gives rise to
recursive cycles of transnational and domestic lawmaking until some sort of settlement is
reached.
Heinz Klug’s study, Access to Medicines and the Transformation of the South
Africa State, addresses the constraints and opportunities provided by international and
transnational intellectual property and competition law in post-Apartheid South Africa.
He notes how the transformation of South Africa was made in the context of
opportunities and constraints created by international and transnational law and
institutions, affecting competing political and economic factions within the post-
Apartheid state, with some policy options gaining salience while others were foregone.
He examines the interaction of the relative power of global and transnational institutions
and models, on the one hand, and the confluence of local conditions and tensions among
domestic policy sectors in light of domestic social problems, on the other. This
interaction results in nonlinear and uneven processes of state change.
Klug assesses how the new post-Apartheid government came into power at the
time of the creation of the World Trade Organization (WTO) and inherited the
commitments made by the previous regime. The bureaucracy within the government
emphasized that South African law had long protected patents and contended that the
new WTO Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS
Agreement) raised no significant issues for the country. The new health department,
composed of activists of the African National Congress, felt otherwise and found a
transnational ally in the World Health Organization. While competition law initially did
not receive significant attention in South Africa, South Africa joined the International
Competition Network in 2001 and strengthened its competition law institutions. It used
these institutions and legal tools to address high levels of business concentration in South
Africa, including in the pharmaceutical sector. Klug shows how the government and
activists were able to use competition law norms to advance the government’s “black
economic empowerment” goals and challenge the drug pricing practices of
pharmaceutical companies. In other words, transnational legal norms were appropriated
to advance domestic aims.
Maira Rocha Machado’s study, Similar in its Differences: Transnational Legal
Processes Addressing Money Laundering in Brazil and Argentina, assesses the
development of transnational legal norms regarding money laundering and the reasons
for their variable impacts within Brazil and Argentina. The transnational process started
with U.S. promotion of anti-money laundering norms within the Basel Committee on
Banking Supervision, an institution created by the central bank governors of ten nations,
moved to the Financial Action Task Force (FATF) created by the G-7, and then
encompassed the United Nations (UN). The Basel Committee first adopted a relatively
general statement of ethical principles for banks in 1998. In 1990, the Financial Action
Task Force prepared more precise guidelines in the form of 40 Recommendations on
Money Laundering which are not formally binding, although many states consider them
to be de facto binding if they are to remain in good standing before the FATF. The FATF
Recommendations and its reporting, monitoring, and peer-review processes create new
forms of accountability not only for government bureaucrats but also for private financial
institutions that must oversee and report on their customers’ transactions. In 2002 and
2003, the FATF Recommendations became incorporated in two UN conventions that are
18
formally binding, one against transnational organized crime and one against the financing
of terrorism.
Rocha Machado’s study assesses the variable impacts of the FATF’s
Recommendations on anti-money laundering in Brazil and Argentina. While Brazil was
certainly subject to transnational pressure, it also implemented the FATF
Recommendations for domestic policy reasons. In contrast, the changes in Argentina
have been largely reactions to transnational pressure and have had, as a result, less impact
in practice. Rocha Machado shows how the Brazilian government found the FATF’s
policies useful for addressing the national problems of organized crime and corruption
and their threat to the state, while there was little domestic demand in Argentina to
implement them. The Brazilian state criminalized money laundering, and it created a new
financial intelligence unit within the administration and a new inter-agency coordination
and monitoring mechanism (named ENCCLA) pursuant to which authorities interact over
money laundering initiatives for the first time. It also obligated financial institutions to
identify customers, maintain records, and report on suspicious transactions, enlisting
them as policing agents, and it created a new Internet-based process (named BacenJud)
which facilitates the exchange of financial information between financial institutions and
judicial authorities. The result has been the creation of new hybrid public-private
financial policing mechanisms and an overall shift in allocation of institutional authority
from the judicial branch to the administration.
Bronwen Morgan’s study, The Limits of Transnational Transformations of the
State: Comparative Regulatory Regimes in Water Service Delivery, addresses both the
influence and (in particular) the limits of transnational norms in shaping state change in
the field of municipal water services in South America. Powerful players developed a
transnational epistemic community to address the issue of access to drinking water,
which consisted of international and regional financial institutions (the World Bank and
the Inter-American Development Bank), multinational private water companies
(particularly from the UK and France),
52
and a transnational business-supported think
tank, the World Water Council.
53
This epistemic community promoted a shift in
regulation to a “neoliberal” transactional model in which water services are provided by
private companies, but overseen by independent regulatory authorities. The outsourcing
of water service delivery from the public to the private sector, in other words, was
accompanied by the development of new regulatory institutions. Conflicts that arose
between the multinational investor and government authorities gave rise to international
arbitration pursuant to a web of bilateral investment treaties, as well as bargaining in the
shadow of potential international arbitration.
Morgan compares the national responses and implementation of this transactional
model in Argentina, Bolivia and Chile, and finds that, while each of the countries
contracted out water service provision in a number of municipalities and formed new
independent regulatory institutions, they did so in radically different ways. In Bolivia, the
regulatory authority was politically marginalized; in Argentina its politicized role shifted
erratically in light of economic crises and political tensions within a fragmented federal
52
The United States is not central to transnational developments in this field because of the local and
fragmented nature of U.S. water delivery.
53
The World Water Council is a “curious amalgam of business-based NGOs and large corporations.”
Morgan, this volume.
19
state; and in Chile it gained technocratic authority in stages that fit with priorities
determined within the Chilean political context. Importantly in Chile, the “Chicago boys”
– high level government officials under the Pinochet government who had obtained their
PhDs in economics at the University of Chicago – facilitated the transactional model’s
reception by acting as conduits and entry points for neoliberal policy norms. Morgan
shows how the transnationally-promoted transactional regulatory model reciprocally
helped to catalyze new politics in Bolivia and Argentina that promoted an alternative
regulatory model of participatory governance. This development, in parallel with others,
affected transnational politics, such that international and regional financial institutions
and foreign aid agencies reoriented their programs.
The study by Minzee Kim and Elizabeth Boyle, Neoliberalism, Transnational
Education Norms and Education Spending in the Developing World, 1983-2004,
examines the relative impact on primary education policy of competing transnational
regimes. One regime is composed of international human rights treaties that recognize a
human right to free primary education, and relatively weak international institutions that
promote its compulsory, universal provision. The authors trace the development of this
legal regime, starting with the 1948 Universal Declaration of Human Rights, followed by
the 1966 International Covenant on Economic, Social and Cultural Rights, and the 1989
Convention on the Rights of the Child. These treaties are monitored and promoted by
international organizations, such as UNESCO, and transnational non-governmental
organizations. The other regime is composed of international financial institutions which,
in the 1980s and early 1990s, called for the adoption of market-oriented “user fees” for
the funding of education. The international financial institutions emphasized free market
principles, reductions in state spending, and balanced budgets as part of a neoliberal
approach to development. When developing countries faced debt crises, the international
financial institutions exercised considerable leverage, and in particular the International
Monetary Fund (IMF) and World Bank through structural adjustment agreements and
adjacent instruments which imposed de jure and de facto loan conditionalities. These
agreements were signed by the IMF and World Bank and numerous states, building from
a common template of prescriptions. The agreements fall within traditional conceptions
of neither national nor international law, but are clearly transnational in character and
implicate large numbers of countries. By 2000, according to a World Bank report, 77 of
79 countries studied had adopted some type of user fee for primary education.
The authors show that despite the relatively weak position of the human rights
regime compared to the coercive power of international financial institutions, the
international human rights regime’s approach to universal primary education has won
out. The World Bank backed down and then denied that it had actually advocated user
fees to fund children’s education. The authors contend that it was the power of the greater
legitimacy of the human rights regime, coupled with the activity of transnational non-
governmental organizations, which led to its success. Using data at yearly intervals for
over seventy poor- and middle-income countries between 1983 and 2004, they show that
the key factor in determining countries’ per capita expenditure on education for children
under fourteen and their percentage of state expenditure devoted to education was neither
the ratification of human rights treaties nor the implementation of structural adjustment
agreements. Rather, countries embedded in the transnational human rights regime
through stronger linkages with transnational non-governmental organizations were
20
significantly more likely to increase their per capita educational spending on children,
and increase their relative spending on education. These transnational non-governmental
organizations operate as crucial intermediaries for the conveyance of international human
rights norms regarding state expenditure on children’s education. In sum, the authors find
that transnational nongovernmental organizations were central to the resolution of the
contest among competing transnational norms for primary education, as well as for
national acceptance of the ideas promoted by the international human rights regime.
III. The Dimensions of State Change
To assess empirically the impact of transnational legal processes on state change,
we need to distinguish between different dimensions of change. Besides shaping the
substance of national law, transnational legal processes can have broader effects on the
institutions and actors that apply law, and the normative frames in which they do so.
Reflecting conceptually on the dimensions of state change which are at stake helps us to
understand both the potential significance of transnational legal processes and their
constraints, both the opportunities they provide and their limits.
This section provides a typology of five dimensions of state change affected by
transnational legal processes that can be assessed empirically. These dimensions are
summarized in Table 1, together with the academic disciplines often associated with their
study.
54
The listing of the associated disciplines highlights both the stakes implicated by
transnational legal processes, and the need for cross-disciplinary socio-legal study of
these implications.
Table 1: The Dimensions of State Change
Dimensions of State Change Associated Discipline
(1) Changes in national law and practice Focus of Legal Studies
(2) Changes in the boundary of the state, the market
and other forms of social ordering
Focus of Institutional Economics
(3) Changes in the allocation of authority among
state institutions
Focus of Comparative Institutional
Analysis in Comparative Politics
(4) Changes in markets for expertise and the role of
expertise in governance
Focus of Sociology of the
Professions
(5) Shifts in normative frames embedded in new
mechanisms of accountability and associational
patterns
Focus of Organizational
Sociology
The first dimension — changes in national law and practice — the focus of most
legal studies — implicates the other four, which raise deeper structural and normative
54
This Article breaks down the dimensions of state change into patterns of legal, institutional, professional
and normative change that can be identified across regulatory fields. Other analysts have assessed the
dimensions of the state and state change arising from globalization generally in terms of the normative
goods that states provide, such as security, rule of law, democratic self-determination, and social welfare.
See e.g. Leibfried and Zürn 2005.
21
issues and thus bring to the foreground the stakes of transnationally-induced legal
change. The second and third dimensions involve shifts in the authority and architecture
of state institutions, while the fourth and fifth involve shifts in professional expertise and
normative frames. These dimensions are interlinked, since changes in one dimension can
catalyze changes in others. For example, transnational legal processes can create new
demands on the state by enhancing the authority of certain forms of expertise, which, in
turn, actuates pressures for shifts in the boundary of the state and private ordering, or in
the allocation of authority among state institutions. It is nonetheless useful to
disaggregate these dimensions for purposes of empirical study of the impacts and
implications of transnational legal processes.
A. Changing national law: enactment and practice. To start with the traditional
focus of legal scholarship, transnational legal processes can trigger changes across the
spectrum of national law. They trigger changes in constitutional law, with new and
amended constitutions incorporating new human rights.
55
They induce changes in
criminal law, broadening its scope to address, for example, money laundering, cartels,
and copyright and trademark violations.
56
They spur changes in regulation across
regulatory fields.
57
National laws, from South Africa to China, incorporate by reference
standards as they are developed by international standard-setting bodies.
58
These
processes can potentially lead to a “race to the top,” a “race to the bottom,” or ongoing
divergence in regulatory stringency.
59
Actors, of course, are behind these processes, and
determine their relative success, as we assess in Part IV.
Implementation of transnational law in a national legal system can be viewed as a
two-stage process. Formal domestic enactment of law (the focus of positivist legal
scholars) is followed by actual practical implementation, the law-in-action (the bread and
butter of socio-legal theorists). Formal legal change can provide tools for actors to effect
change in regulatory outcomes over time, but they do not necessarily do so. Binding
national law could be formally enacted, but could have little to no practical impact, while
changes in soft law norms potentially could have significant practical effects. The studies
in this volume address both the formal enactment and practical implementation of law,
but focus their attention on how transnationally-spurred legal changes are applied (or
thwarted) in practice.
55
See e.g., Elkins and Ginsburg forthcoming 2010; Klug 2000.
56
See Rocha Machado, this volume (on money laundering); Harding 2006 and Shaffer 2011 (on cartels);
Braithwaite and Drahos 2000, 85 (“One of the striking features of the evolution of intellectual property law
is the increased involvement of criminal law. There has been no serious discussion of why the state should
mete out criminal penalties in an area that has traditionally been a civil matter. In the evolving global
regime states are increasingly using criminal enforcement resources on behalf of intellectual property
owners.”). U.S. pressure for intellectual property enforcement possibly led to capital punishment in China
in a number of cases when China was negotiating to accede to the WTO. See suggestion in Alford 1995, 91
(“[S]uch undertakings [to enhance IP protection] have led to the imposition of the death penalty on at least
four individuals ....”).
57
Braithwaite and Drahos 2000.
58
Büthe and Mattli on file 2010 (giving examples to China’s Product Quality Law and South Africa’s
Occupational Health and Safety Act)
59
See Vogel and Kagan 2004, 31-32 (“the evidence… weighs heavily against the notion that globalization
induces a general regulatory race to the bottom”).
22
B. Changing the boundary of the state, the market and other forms of social
ordering. Transnationally-induced legal change can have broader systemic effects within
states. Transnational legal processes provide legal rules and models that reconfigure the
respective roles of the state, the market and other forms of social ordering.
60
They can
affect the allocation of authority between public law and other forms of private and social
ordering, such as the public law of the administrative state, the private law of contract,
and social practice, as well as the interaction between them.
61
They can signal and call for
the state to do more, or to do less. In some cases the state devolves or outsources previous
state functions; in others it takes on new responsibilities; in yet others it creates new
public-private hybrid models of governance. These shifts involve both the state’s direct
engagement in economic production (reflected in privatization initiatives) and the state’s
regulation of production (reflected in regulatory and deregulatory policies).
Transnational legal processes induce states to assume responsibilities traditionally
left to other forms of social ordering in some policy areas. The study of Kim and Boyle
examines how transnational hard and soft law policies have pressed developing countries
to assume responsibility for providing free, universal primary education, increasing state
expenditures in this domain. Klug highlights the transnational human rights pressures on
the state to fund greater access to essential medicines. Rocha Machado’s study
documents the growth of state financial regulation, and, in particular, the spurring of
greater intervention of the criminal justice system over financial transactions so that
financial privacy is reduced.
In other areas, however, transnational legal models have promoted shifts away
from state administration toward privatization, deregulation, and greater regulatory
flexibility, reflecting “neoliberal” policies following the collapse of the socialist model
after the Cold War. Binding rules of the World Trade Organization have significantly
constrained state regulatory choices over trade, intellectual property, and industrial
policy.
62
Transnational legal processes also operate in diffuse ways, leading to the
outsourcing of functions traditionally performed by state institutions. Morgan’s study, for
example, assesses the impact of new “transactional” models for the provision of
municipal water services in South America, and Halliday’s study explains the shift
toward courts and private professionals for corporate reorganizations in Korea and China.
These changes were respectively promoted by transnational epistemic communities of
consultants and practitioners comprised of public and private actors working out of or in
coordination with international and regional financial institutions. They are backed by an
array of international treaties governing investment disputes, which have served both to
deregulate foreign direct investment controls and denationalize dispute settlement
through mandatory reference of disputes to international arbitration.
60
In practice, there is a blurred line between market and state and non-state mechanisms of social control.
The state/market dichotomy simply informs the assessment of governance choices along a continuum of
government involvement.
61
See e.g. Shaffer 2009 (regarding institutional interactions between public law and private ordering).
62
Klug, for example, notes the constraints on the African National Congress’s initial plans for industrial
policy in South Africa when it took power in light of WTO rules and the “prescriptions proffered by the
IMF and World Bank.” He also notes that the ANC in South Africa was constrained in the development
model it could pursue because of the reaction of international markets to its initial policy announcements,
especially as it hoped to attract foreign investment. Klug 2000.
23
Where the state outsources traditional government responsibilities, state
institutions do not leave the scene. Rather, the state often shifts toward steering
mechanisms, working through public-private hybrid and other governance mechanisms.
63
Outsourcing the provision of services to private entities simultaneously gives rise to new
public agencies, new regulation, and new forms of dispute settlement in areas
traditionally monopolized by the state.
64
David Levi-Faur has traced the proliferation of
functional regulatory agencies around the world in areas where none existed before,
documenting the growth of material competencies of the state involving increased
specialization and diversification of state administrations.
65
Policymakers often introduce
new governance concepts of benchmarking, soft law, information exchange, and best
practices. Transnational-created indicators report on state practices and their effects,
informing countries’ regulatory strategies.
66
While the concept of transnational law could suggest a conceptual link to the
literature on the “retreat of the state,”
67
the state is arguably not retreating so much as
being reshaped.
68
Transnational legal processes have promoted particular structures for a
market economy, shifting the boundary between the market, the state and other forms of
social ordering, affecting what the state does. These shifts can potentially have deep
social repercussions over time.
C. Changing the institutional architecture of the state. Transnational legal
processes affect not only what the state does. They shift allocations of authority among
the state institutions that make, apply, and enforce law, whether they involve different
branches of government, or different levels of government.
69
These shifts can incite
struggles between state institutions reluctant to cede or eager to gain power.
It is frequently argued that the expansion of international and transnational
governance has empowered executives, leaving legislatures to rubber stamp the results of
international negotiations.
70
Such shifts of institutional authority within states have
indeed occurred in many domains, spurring analysis regarding how to re-empower
63
Levi-Faur 2005, 15 (“in regulatory capitalism, the state retains responsibility for steering, while business
increasingly takes over the functions of service provision and technological innovation. This new division
of labor goes hand in hand with the restructuring of the state (through delegation and the creation of
regulatory agencies) and the restructuring of business (and other societal organizations) through the
creation of internal controls and mechanisms of self-regulation in the shadow of the state”). See also
Rhodes 1996; and Ayres and Braithwaite 1992. Cf. Loya and Boli 1999 (applying a world polity
perspective regarding the proliferation of global standards through standard-setting bodies such as ISO).
64
See e.g. Morgan this volume.
65
Levi-Faur 2005,18 .
66
See e.g. Davis, Kingsbury, and Merry 2010. Rocha Machado shows how information sharing, monitoring
and peer review lie at the core of the work of the FATF on money laundering.
67
See, e.g., Glenn 2003. See also Ohmae 1995; Strange 1996. Cf. Sassen 1996: xii (“globalization under
these conditions has entailed a partial denationalizing of national territory and a partial shift of some
components of state sovereignty to other institutions, from supranational entities to the global capital
market”).
68
See also Leibfried and Zürn 2005; Sorensen 2004; Campbell 2004.
69
See e.g. Kelemen 2004, 269, 270 (contending that international legal integration encourages
centralization of regulatory power, but finding that the impact has been modest).
70
See e.g. Richardson 2001, 94-95 (arguing that globalization decreases the power of legislatures);
Brewster 2003; Scheppele 2011 (on 9/11 and the ensuing rise of global security anti-terror law has
empowered executives in relation to legislatures and courts).
24
legislatures.
71
Yet legislatures can also be strengthened and executives weakened by
transnational legal processes. In many countries, the executive branch’s discretion has
been reduced, and the parliament’s power enhanced, compared to allocations of power
under state-development models of economic growth in which power was concentrated in
executive branch bureaucracies.
72
Halliday discusses these shifts in his study of
transformations of bankruptcy law in Asia. The executive’s authority is similarly
curtailed when regulatory power is delegated to independent agencies operating at greater
remove from political institutions, processes captured in Morgan’s study.
73
Transnational legal processes can also affect the role of courts within national
systems, sometimes providing courts with new leverage to increase their authority in
relation to executives. Courts have been traditionally weak in many developing countries,
but transnational legal processes provide them with new tools to assert themselves. Klug
shows how judges have been empowered to force the hand of state bureaucrats regarding
state-provided medical treatment. Morgan shows the increased role of courts in disputes
over municipal water services in Argentina. Halliday notes the enhancement of judicial
power over corporate bankruptcy in South Korea, as well as its potential in China and
Indonesia. Yet transnational legal processes can also shift authority away from courts,
and allocate power to executive branches in deference to international agreements, or to
independent agencies because of perceived failures of courts. National administrations,
for example, have asserted new authority over criminal justice policy vis-à-vis judicial
authorities in the area of money laundering, as shown in Rocha Machado’s study.
Transnational legal processes, in other words, promote new architectures of the
state. They provide rules and models for the creation of entirely new state institutions and
the reconfiguration of relations among existing ones. These institutional changes can
exhibit isomorphism across states, although the actual practices of these institutions may
vary considerably.
74
The law of the World Trade Organization, for example, requires the
creation of new specialized state institutions for handling patent applications, resulting in
the formation and expansion of patent offices in developing countries. Yet how these
offices operate in practice varies.
75
The direction of changes in institutional authority
within states, and what drives these changes, calls for ongoing empirical work.
D. Shaping markets for professional expertise and expertise’s role in governance.
In spurring the enactment of new law and the reconfiguration of state institutions,
transnational legal processes give rise to new professional specializations and shifts in
71
See e.g., Slaughter 2003, 1056.
72
See e.g. Pistor & Wellons, 1999, 6-7 (noting the increase in legislative activity and the reduction of
discretion of state bureaucrats in Asia during this period) .
73
Morgan’s study documents a shift toward independent agencies for the regulation of water services in
Latin America spurred by transnational legal processes.
74
On isomorphic changes across states, see Meyer, Boli, Thomas, and Ramirez 1997; and Boyle and Meyer
1998. However, the actual practice of these institutions may diverge. See e.g. Halliday, Rocha Machado,
and Morgan, this volume, regarding the regulation of bankruptcy, money laundering, and municipal water
services.
75
Drahos forthcoming 2010; Drahos 2008; Drahos 2009. Article 8(a) of the TRIPS agreement states that
WTO members must “provide as from the date of entry into force of the WTO Agreement a means by
which applications for patents for such inventions can be filed.” Agreement on Trade-Related Aspects of
Intellectual Property Rights, art. 70.8(a), Apr. 15, 1994, Marrakesh Agreement Establishing the World
Trade Organization, Annex 1C, 1869 U.N.T.S. 299; 33 I.L.M. 1197 (1994).
25
professional authority, creating incentives for individuals and institutions to adjust to
them. These developments can trigger changes toward more technocratic forms of
governance, away from other forms of authority,
76
such as representative government.
77
They enhance the prospect of experts exercising authority, and create incentives for
individuals and institutions to invest in expertise in specialized areas. New professions
develop; professional markets are shaped; existing career paths adapt to new
opportunities. Individuals, and in particular elites in societies,
78
invest in them to gain or
retain material welfare, social capital, and authority.
These domestic shifts in governance occur both within state institutions and in
private ordering and public-private hybrid forms of governance. State restructurings
unleash competition for new expertise when the state regulates new activities, creating
new positions within the state. They also do so when the state outsources traditional
governmental tasks. New private governance regimes have law-like features and demand
the services of professionals.
79
These professionals monitor business behavior and state
institutional practice in light of transnational law and state adaptations to it.
80
In turn,
when these individuals invest in professional expertise, they have stakes in supporting
particular national legal and institutional changes. Different expertises are often in
competition with each other, such as law, economics, and accounting, so that professional
stakeholders may advocate divergent institutional changes that will enhance and protect
their relative positions.
81
In other words, this dimension of state change interacts with
other dimensions, both responding to state institutional changes and spurring them.
The accompanying studies depict the development of new specializations in the
fields of bankruptcy law, anti-money laundering law, intellectual property law,
competition law, and the regulation of the provision of municipal water services. New
professional expertise has developed for bankruptcy services in Asia (embracing lawyers,
accountants, and insolvency specialists), and for urban water services in South America
(involving economists, management consultants, and lawyers), as shown respectively by
Halliday and Morgan. Rocha Machado shows how private actors perform new functions
in policing financial transactions for money laundering under new obligations to report
suspicious behavior to authorities, resulting in new hybrid public-private governance
models for financial regulation. Intellectual property and competition law are growing
fields of specialization in South Africa, India, and Brazil, creating new vested interests,
and shifting industry orientations.
82
76
These shifts can be viewed in terms of Max Weber’s ideal type of rational-legal forms of authority.
Weber 1978, 212-301 (re ideal types of traditional, charismatic and rational/legal forms of authority).
77
Kennedy 2005; Picciotto 1996. See also Aman 2004.
78
Dezalay & Garth 2002b.
79
See e.g. Nonet & Selznick 1978 (writing in the U.S. context). See more recently, Meidinger 2009 (on
private food safety regulation); and Calliess & Zumbansen 2010 (on corporate governance and lex
informatica) .
80
Rocha Machado, this volume.
81
Dezalay & Garth 2002b.
82
Shaffer interviews with professionals in each of these countries pursuant to ongoing field work (2005-
present). See also Klug, this volume; and Shaffer, Ratton-Sanchez, and Rosenberg 2008 (“Changes at the
international level have helped unleash competition for new expertise to take advantage of the opportunities
offered by international trade law, involving law schools, policy institutes, law firms, consultancies, think
tanks, business associations, and different government ministries…. The participants in these networks
26
Individuals who invest in such expertise play important roles in national
governance in specialized domains, whether they are employed in the public or private
sector, or revolve between them.
83
These individuals serve as conduits for the
conveyance, adaptation, and potential embedding of transnational legal norms, as we
explore further in Part IV. They form part of specialized circuits of knowledge diffused
through hybrid networks of public and private actors.
E. Shifting normative frames. Transnational legal processes generate shifts in
patterns of association and mechanisms of accountability which convey particular
normative frames. Individuals and groups inside and outside of government account to
institutions outside of national borders.
84
They form new patterns of association through
ongoing interaction. New relations of authority develop. The normative frames that are
reflected in these accountability mechanisms and associational patterns can affect
loyalties, influence legal understanding and practice, and reshape the legal culture and
legal consciousness of elites and (potentially) broader publics, the way (to quote Merry)
they “conceive of the ‘natural’ and normal way of doing things, their habitual patterns of
talk and action, and their commonsense understanding of the world.”
85
A primary transnational accountability mechanism consists of monitoring,
surveillance and reporting obligations which trigger peer pressure. International
organizations directly monitor national processes, governments must report to them, and
these reports are formally reviewed. WTO members, for example, report to a series of
WTO committees and councils on their compliance with WTO trade and intellectual
property commitments. Those reports are prepared and evaluated within the normative
frame of WTO rules. The FATF monitors compliance with financial disclosure
requirements, creating new forms of accountability not only for government bureaucrats
but also for private financial institutions that oversee and report on their customers’
transactions.
86
The Committee on the Rights of the Child monitors compliance with the
Convention on the Rights of the Child, harnessing input from both government officials
and non-governmental organizations (NGOs).
87
Transnational indicators increasingly
define and measure what constitutes appropriate national goals and effective strategies,
facilitating further monitoring.
88
National institutions are created and developed to respond to these accountability
demands. Governmental agencies and civil society organizations receive resources
through technical assistance and capacity building programs.
89
Sometimes new national
have formed a community of trade policy specialists within Brazil, one that is transnationally linked to a
broader trade policy field”) .
83
For an assessment of the role of public and private individuals in the field of trade law in the United
States and Brazil, see Shaffer 2003 and Shaffer et. al 2008.
84
Keohane & Nye 2003 (on the tensions between internal accountability and external accountability
mechanisms, raising the question of accountability to whom).
85
Merry 1990: 5 (on legal consciousness); Friedman 1997 (on legal culture).
86
See Rocha Machado, this volume
87
See Kim and Boyle, this volume
88
See e.g. Davis, Kingsbury, and Merry 2010.
89
See e.g. Drahos forthcoming 2010 (noting how domestic patent offices have become part of a globally
integrated network in which the offices of Europe, the US and Japan and the interests of multinational
companies are central).
27
agencies are designed and even staffed by consultants from transnational institutions.
90
Over time, new associational communities form as “clubs” in functionally disaggregated
legal areas.
These processes have implications for how state representatives and civil society
organizations view themselves and their roles, as they mediate relations between
transnational and national sites of governance. Transnational networks engage national
policymakers within particular normative frames. They can shape elite perspectives on
the appropriate role of institutions such as markets, independent agencies, and courts.
Local claims are viewed in transnational context. Through transnational patterns of
interaction and practice, new conceptions of meaning are conveyed and can be gradually
accepted as normal and authoritative. These conceptions can affect both the definition of
particular goals and the means to further them.
These shifts in patterns of association and mechanisms of accountability with
their accompanying normative frames can shape the identities and subjectivities of elites
and potentially (over time) of broader publics.
91
They can, in the process, affect the legal
consciousness and legal culture of elites and broader publics, influencing the demands
that elites and publics put on the state, leading to pressure on other dimensions of state
change, such as the boundary between the state, market, and other forms of social
ordering, and the allocation of institutional authority within the state. Once more, we see
how these different dimensions of state change interact.
Transnational legal processes operate, however, in the context of ongoing
institutional path dependencies, social histories, and domestic contests over national law
and policy, factors mediating the extent of state change to which we now turn.
IV. The Factors Explaining the Location, Extent and Limits of State Change
To understand the impact of transnational legal processes on state change, we
need to specify the factors that explain its location, timing and extent. The results of
transnational legal processes are not homogeneous across countries; and within countries
they affect different dimensions of the state. This section provides a typology of three
clusters of factors that determine the impact of transnational legal process, which are
enumerated in Table 2. Each of these factors can be isolated for purposes of subsequent
study,
92
but the purpose here is to provide an overall framework regarding the factors that
shape the timing, extent, location, and limits of state change.
Table 2: The Explanatory Factors that Determine State Change
Three Clusters of Factors Components within each Cluster
The Nature of the Transnational
Legal Order and Norm
(i) Legitimacy of the Transnational Legal Order and
Norm;
90
Morgan notes how national water agencies in developing countries frequently are designed and (in the
case of Bolivia’s water regulatory agency) staffed by consultants who work for international organizations
and are seconded to national state institutions. Klug notes how the WHO seconded an official to work with
the South African Health Department.
91
As Mead (1934) explains, individuals’ sense of identity is shaped by social interaction.
92
Terence Halliday and I, for example, are commencing a new project assessing the impact of the
coherence of transnational legal orders and the degree of settlement (and thus clarity) of transnational legal
norms across nine subject matter areas.
28
(ii) The Clarity of the Transnational Legal Norm;
(iii) The Coherence of the Transnational Legal
Order and Norm;
(iv) Ability to Harness Historic Events
The Relation of the Transnational
Legal Order and the Receiving
State
(i) Power asymmetries and the receiving state;
(ii) Role of intermediaries
The Context of the Receiving
State
(i) Domestic demand;
(ii) Domestic configurations of power;
(iii) Domestic institutional capacities and path
dependencies;
(iv) Domestic cultural frames;
(v) Extent of change at stake
The first cluster involves the transnational legal order; the second cluster the relation of
the transnational legal order and the receiving state; and the third cluster the context of
the receiving state. The studies in this volume illustrate how these clusters of factors
operate and interact in different fields, affecting the location, extent, timing, and limits of
state change.
These three clusters of factors can be broken down into different components, as
summarized in the Table and explained below.
93
To start with transnational law and legal
orders, the ways in which they vary can be broken down into three aspects: (1) the
legitimacy of the transnational legal order which contributes to its power; (2) the clarity
of the transnational legal norm; and (3) the coherence of the transnational legal norm in
reflection of whether different transnational legal orders complement or are in tension
with each other. Collectively, the legitimacy, clarity and coherence of the transnational
legal norm affect its impact, often in reflection of the possibilities provided by historic
events.
A. The character of the transnational legal order and legal norm: legitimacy,
clarity and coherence
1. The relation of a transnational legal order’s power to its legitimacy.
Scholars from various disciplines increasingly have engaged with the concept of
legitimacy in evaluating the impacts of international law and institutions.
94
Legitimacy,
as used in a sociological sense, refers to the subjective belief of actors that a rule or
institution should be obeyed.
95
The concept of transnational law’s legitimacy is thus a
relational one, since it depends on whether actors regard the institutions and processes
which promulgate and convey it as “rightful,” and thus authoritative.
96
Where there are
93
Halliday’s study in this volume conceptualizes these factors slightly differently, breaking some of them
down into distinct factors. For heuristic purposes, this Article places them into three clusters.
94
See Halliday 2009, 23 (noting that the issue of the legitimacy of international processes has been an
important subject in international law (Bodansky; Franck), international relations (Barnett; Hurd), and
sociology of law and globalization (Halliday and Carruthers)), as well as Block-Lieb and Halliday 2006.
95
Mark Suchman defines legitimacy in sociological terms as “a generalized perception of assumption that
the actions of an entity are desirable, proper, or appropriate within some socially constructed system of
norms, values, beliefs, and definitions.” Suchman 1991, 574.
96
For Ian Hurd, an institution acquires authority when it is perceived to be legitimate. Hurd 2008.
29
political and social struggles over regulatory norms, actors attempt to use law
strategically to advance their aims through harnessing law’s potential legitimating power.
The more that the transnational legal order and its norms are perceived to be legitimate,
the more likely they will exercise normative pull.
A transnational legal order’s legitimacy can be assessed along three dimensions in
terms of inputs (who participates in a process), throughputs (the quality of procedural
fairness and deliberation characterizing such process), and outputs (how a process
substantively responds to a problem).
97
Overall, national actors are more likely to
perceive transnational law to be legitimate where the law is formulated by actors who
share their interests, where the process is procedurally fair and characterized by non-
coercive reasoned argument, and where the results are functionally efficacious. The
perception of the legitimacy of a transnational legal process should vary along these three
dimensions of representativeness, procedural fairness, and effectiveness.
Legitimation is an aspect of power, and neither legality nor legitimacy should be
viewed in contradistinction to power as in some conceptions in the legal literature.
Transnational legal orders exercise power and authority through mechanisms of coercion,
reciprocity, persuasion, and acculturation.
98
Stated in other terms, states and non-state
actors may adopt or otherwise adapt to transnational law because they are coerced to do
so, they find it to be in their self-interest though a reciprocal exchange or through being
persuaded, or they are normatively induced to comply with it in light of its perceived
legitimacy.
99
Those scholars who focus on the role of sanctions highlight law’s coercive
aspects. Yet law also exercises considerable power (if not its greatest power) through
normative processes in which law is accepted as legitimate because it reflects norms of
proper social behavior.
100
These mechanisms are of course ideal types, and in practice
they interrelate, affect, and build upon each other.
101
These mechanisms all depend in different ways on legitimacy. Sanctions are more
likely to be effective if the relevant transnational legal order is accepted as legitimate and
thus authoritative because the sanctions will be more difficult to resist, avoid, and counter
through third party assistance. Where transnational legal orders are perceived to be
legitimate, they are also more conducive to facilitating dialogue that leads to persuasion,
as well as to reciprocal exchange and modeling. Mechanisms of acculturation most
directly depend on a transnational legal order’s perceived legitimacy.
97
Cf. Bodansky 1999 (legitimacy in terms of sources, procedures and outcomes); Halliday and Carruthers
2009, 11; and Scharpf 1999, 2 (distinguishing input and output legitimacy).
98
See Ginsburg and Shaffer forthcoming (discussing the links between these mechanisms with those
discussed in Braithwaite and Drahos 2000 (7 mechanisms); Halliday and Osinsky, 2006 (8 mechanisms);
and Goodman and Jinks 2004 (3 mechanisms). There are, as noted in I.C above, of course other
mechanisms that induce legal and institutional changes in states that are not linked to transnational legal
processes, such as market competition among states. See e.g. Simmons, Dobbin, and Garrett 2008 (4
mechanisms of diffusion).
99
Hurd 1999.
100
See Tyler, 1990. As Merry writes, “law’s power to shape society depends not on punishment alone but
on becoming embedded in everyday social practices.” Merry 2006, 4. See also Halliday and Carruthers
2009, 11.
101
As Hurd writes, “the relationship between coercion, self-interest, and legitimacy is complex, and each is
rarely found in anything like its pure, isolated form. Further, they are probably sometimes related in a
patterned, systematic fashion, in that many social structures that are eventually legitimized emerged first
from relations of coercion or from individual self-interest.” Hurd 2007, 40.
30
Michael Barnett and Raymond Duvall have provided a useful framework of four
conceptions of power in international governance which they label as agency,
institutional, structural, and productive power.
102
Each of these conceptions applies to the
assessment of transnational legal processes and their effects, and each has implications
for understanding the way legitimation operates in these processes. First, from an agency
perspective of power, actors have variable resources that affect their ability to shape and
mobilize transnational law.
103
They likewise have variable resources to deploy offers of
rewards and threats of sanctions to induce third parties to comply with it. Since actors
have stakes in the perception of transnational law’s legitimacy, they have incentives to
mobilize resources to legitimize or delegitimize transnational law and legal processes.
104
Powerful players, such as the United States, are typically best positioned to use
transnational institutions and legal processes to legitimize policies that they want, as well
as to delegitimize the emergence of transnational legal norms that go against their
interests.
105
Second, from an institutional perspective, transnational institutions shape the type
of issues and arguments that parties may effectively raise.
106
International institutions and
transnational policy networks structure choices, and they do so especially for less
powerful states.
107
They provide frames that organize deliberation over the conceptions of
problems, their diagnoses, and strategies to address them. Institutional power is more
likely to be effective where institutional processes are accepted as legitimate, whether
from the perspective of input (participation), throughput (deliberation), or output
(material results). Actors invest in (and forum shop for) international institutions, in part,
because of the legitimation they can provide.
108
Third, from a structural perspective, transnational legal orders create structures
that can materially advantage some over others, and, in the process, affect actor’s
understandings of their interests.
109
Transnational legal orders can materially affect how
actors calculate the costs and benefits of alternative policies, and ideationally affect such
actors’ perceptions of the worth of pursuing or even conceiving of such alternatives.
102
Barnett and Duvall 2005. Peter Digeser nicely summarizes these four conceptions of power as follows:
“Under the first face of power the central question is, ‘Who, if anyone, is exercising power?’ Under the
second face, ‘What issues have been mobilized off the agenda and by whom?’ Under the radical
conception, ‘Whose objective interests are being harmed?’ Under the fourth face of power the critical issue
is, ‘What kind of subject is being produced?’” Digeser 1992, 980.
103
This behavioral (or agency) conception of power is used by Robert Dahl. See Dahl 1957; Dahl 1968,
405.
104
Within the academy, critical legal studies can be viewed as an attempt to delegitimize accepted law on
account of perceived structural biases.
105
Cf. Büthe and Mattli manuscript on file 2010 (maintaining that domestic institutional arrangements, and
particular whether they are centralized or decentralized, also matter because they affect the mobilization of
domestic interests) .
106
This institutional conception of power is used by Bachrach and Baratz. As they contend, “power is also
exercised when A devotes his energies to creating or reinforcing social and political values and institutional
practices that limit the scope of the political process to public consideration of only those issues which are
comparatively innocuous to A.” Bachrach and Baratz 1962, 948.
107
Gruber 2000.
108
See e.g., Esty 2006, 1496 (“In the realm of supranational governance, where the democratic
underpinnings for rulemaking are particularly weak, the legitimacy-enhancing potential of procedural
safeguards takes on special significance”); Franck 1990, 21.
109
Lukes 1974, 24.
31
Fourth, from a productive (or constitutive) perspective, social discourse and knowledge
systems can shape actors’ subjective understandings of their identities and their
capacities.
110
Transnational legal orders propagate certain conceptions of identity and
choice with the result that state and non-state actors are more likely to accept a given
order as normal and inevitable. Although these latter conceptions of power do not focus
on actors, those able to benefit from these forms of power, through the legitimation that
transnational legal norms can provide, are in privileged positions.
These latter conceptions of power find their reflections in the transnational legal
process theories within the legal academy of Harold Koh and Ryan Goodman and Derek
Jinks, who are generally positive in their assessments of these processes. Koh contends
that “[r]epeated participation in the transnational legal process… helps to reconstruct the
national interests of the participating nations.”
111
He sees “transnational legal process” as
“seeking to shape and transform personal identity” so that political elites and broader
societies “internalize” international law norms.
112
Similarly, Goodman and Jinks analyze
acculturation processes through which states are socialized without reflecting if the
norms they adopt are in their interests.
113
Where transnational legal processes’ are
accepted as legitimate, they are more likely to shape actors’ interests and identities, and
thus have transformative effects.
The studies in this volume commonly highlight how the power of transnational
law’s perceived legitimacy exercises considerable influence in affecting domestic legal
change, and how coercion is less successful when an international regime’s legitimacy is
challenged. International financial institutions, for example, were successful in using
their coercive financial leverage during the Asian financial crisis to press Indonesia to
enact bankruptcy law reforms, as shown in Halliday’s study. However, these formal
changes were not implemented in a way that changed outcomes in the directions or
degree that the IMF anticipated. In contrast, UNCITRAL has exercised much greater
authority in national bankruptcy law reform efforts because the processes of
representative deliberation, which gave rise to its “model rules” and “legislative guides,”
are deemed more legitimate. The national actors who participate in the UNCITRAL
process take home models which they had a voice in drafting and approving, models
which can become part of a more indigenous national agenda to enhance financial
stability and economic development. Similarly, Kim and Boyle’s study shows how the
World Bank’s structural adjustment policies initially pressed developing countries to shift
toward requiring user fees for primary education (with 77 of 79 countries studied for a
World Bank report having adopted some type of user fee for primary education by 2000).
110
See e.g. Foucault 1984, 213 (viewing individuals as effects of power, writing “[t]he system of right, the
domain of the law, are permanent agents of these relations of domination, these polymorphous techniques
of subjugation”); and Guizzini 2000 (discussing Pierre Bourdieu’s concept of “doxa”).
111
See Koh 1998, 642.
112
Koh 1998, 629; and Koh 1997. Cf. Hurd 2007, 388 (“the operative process of legitimation is the
internalization by the actor of an external standard. Internalization takes place within the actor’s sense of its
own interests is partly constituted by a force outside itself, that is, by the standards, laws, rules and norms
present in the community”).
113
Goodman and Jinks forthcoming 2010.
32
However, these efforts were rebuked following challenges to their legitimacy by non-
governmental actors, pressing the Bank to revise its policies.
114
2. Variation in transnational law’s hard and soft law nature and the coherence of
transnational legal orders. The nature of transnational law varies in terms of different
features which affect its authority. Variations in the features of transnational legal norms
have been conceptualized in terms of hard and soft law, which contrast across the
dimensions of obligation, precision, and delegation of monitoring, rule elaboration, and
interpretation to a third party decision-maker.
115
Such variations can affect a legal norm’s
clarity. As Beth Simmons writes, “[n]ormative as well as rational theorists have explored
the quality of law precision as an influence on compliance.”
116
Where a transnational
legal norm is clearer and less ambiguous, there is less room for significant variation at the
domestic level when it is formally adopted.
117
Similarly, where a transnational legal norm
is elaborated over time through delegated dispute settlement or through different forms of
delegated monitoring, peer review, and reporting, these processes can enhance the legal
norm’s clarity.
118
It is striking, for example, how competition law in South Africa, for
which there are transnational soft law principles but no binding international law
obligations, has developed in a more indigenous manner than patent law, which is subject
to the relatively precise and binding rules of the WTO TRIPS Agreement. Although
precise legal norms may in some cases be ignored or evaded, and vague legal norms can
be applied in similar ways, in general, clearer legal norms providing unambiguous signals
regarding the legal change sought, will provide better tools to local actors at the stage of
domestic implementation of the legal norm.
119
Overall, the more that a transnational legal
norm is clear, binding, and its meaning is interpreted, elaborated, and applied by a third
party regarding particular contexts, the more compelling its signal should be to states and
other constituencies. Actors promote these features in order to enhance the impact of
transnational law.
114
“By 2001, the World Bank quietly indicated to countries that it did not support user fees for
education…. By 2006, the World Bank was considered the leading global advocate for greater public
spending on education.” Kim and Boyle, this volume.
115
See Abbott and Snidal 2000. Hard law “refers to legally binding obligations that are precise (or can be
made precise through adjudication or the issuance of detailed regulations) and that delegate authority for
interpreting and implementing the law.” Soft law, in contrast to hard law, refers to legal arrangements that
are weaker along one or more of these three dimensions. Abbott and Snidal 2000, 421-22.
116
Simmons 2009: 121 (citing the work of Thomas Franck from a normative perspective and of James
Morrow from a rationalist one). Franck (1990, chapters 4-5) focuses on the role of international law’s
clarity in his study of the power of legitimacy.
117
For an experimental study of the impact of legal imprecision on compliance, see Feldman & Teichman
2009 (finding that people are less likely to comply in situations where uncertainty stems from imprecision
than from imperfect enforcement). The link between rule precision and legal certainty, however, is a
debated one in a world of complexity, rapid change, and high economic stakes where legal entrepreneurs
can manipulate bright line rules to evade broader policy goals captured in principles. See Braithwaite 2002.
Franck also notes that bright line rules may sometimes be less important than principles that accommodate
diverse situational contexts. Franck 1990.
118
See Sandholtz and Sweet 2004 (on dynamic processes of elaboration of international law over time).
119
For an example of the problems for implementation of vague transnational environmental law rules, see
e.g. Talitman et al. 2003.
33
Transnational legal orders, however, can also complement or conflict with each
other, affecting transnational law’s coherence.
120
Different transnational legal orders can
address a single regulatory question. Where they complement each other, their leverage
can increase. Where they conflict, transnational legal norms may be in tension, or even
contradictory, affecting their overall coherence. In this latter case, states and
constituencies within them should have greater policy discretion, everything else being
equal, enhancing their ability to resist a particular transnational legal norm’s
importation.
121
In other words, even where a transnational legal norm is precise and
obligatory by its terms, if it is in significant tension with another transnational legal norm,
domestic actors can more easily find means to evade it.
The studies illustrate the processes of complementarity, conflict, and consolidation of
transnational legal norms over time, affecting their clarity and coherence. The legal
norms promoted by the Financial Action Task Force became increasingly precise over
time, and eventually became reflected in binding UN conventions, as Rocha Machado
illustrates. UNCITRAL built on the recommendations and guidelines of the international
financial institutions for national bankruptcy law when it created a Legislative Guide and
Model Law that were adopted by its members, as Halliday shows. In contrast, the study
of Kim and Boyle illustrates how two transnational regimes advocated different
approaches toward user fees in primary education, but one of those (the UN human rights
regime) prevailed over the other (the international financial institutions). In Klug’s work,
different transnational legal orders again provided conflicting frames regarding the
interaction of intellectual property and public health protection. This time, however, the
tensions between these transnational legal orders remain. Even though the WTO TRIPS
Agreement’s provisions are binding, relatively precise, and subject to third party dispute
settlement, activists in South Africa were able to harness international human rights and
transnational competition law norms against demands for pharmaceutical patent
protection. They were thus able to counter somewhat the pressure for higher
pharmaceutical prices through monopoly patent rights in the context of struggles over
access to medicines.
3. Harnessing historic events. Particular historic events create opportunities on
which actors can capitalize to convey transnational legal norms to change domestic law
and institutions. Events such as the fall of the Berlin Wall and the major debt and
financial crises striking Latin America and Asia provide such openings.
Crises create
uncertainty that destabilizes background assumptions and perceptions of interest
regarding legal and institutional change. As John Campbell writes, historic events can
120
See e.g. International Law Commission 2006; Raustiala and Victor 2004, 279; Shaffer and Pollack
2010. Franck (1990, chapter 6) also discusses coherence in his study of the power of international law’s
legitimacy, but he largely focuses on coherence in the application of a single rule. The rise of the WTO and
the literature on the challenges posed by the fragmentation of international law have developed since his
study.
121
Conflicts in transnational legal orders typically reflect political struggles both among and within states.
See Shaffer and Pollack 2010. Transnational and domestic struggles can become intermeshed, as different
local actors see competing international organizations and transnational networks as their allies. As
Dezalay and Garth write in their book The Internationalization of Palace Wars, the “success of import is
inevitably tied to domestic palace wars and to the international competition to export state expertises.”
Dezalay and Garth 2002b, 5.
34
lead to processes of change involving “punctuated equilibria,” where “a crisis upset[s] the
institutional equilibrium and precipitate[s] a search for a new … order that, once
institutionalized, usher[s] in a new period of institutional equilibrium.”
122
Each of the studies grapples with transnational legal processes within their
historic contexts. The development and export of a “transactional model” for the
provision of municipal water services reflected a shift in the 1990s toward neoliberal
policies and the reappraisal of economic development models, as noted by Morgan. The
Asian financial crisis created openings for transnational actors to press Asian states to
restructure their bankruptcy laws and institutions, as demonstrated by Halliday. As Rocha
Machado shows, the terrorist attacks of September 11, 2001 on the World Trade Center
catalyzed new developments before the Financial Action Task Force and the United
Nations through pressure from the United States. These studies each illustrate how
transnational legal processes harness and are constrained by historic contexts.
B. The relation of the transnational legal order to the receiving state. The second
cluster of factors affecting transnational law’s impact involves the relation of the
transnational legal order to the receiving state. We can look at this position from a top
down perspective in terms of structure, on the one hand, and a bottom up one in terms of
agents and intermediaries, on the other. Macro-sociological theories, such as world
systems theory and world polity theory, take a top-down approach, focusing respectively
on material and ideological power.
123
Micro-socio-legal studies address the patterns of
interaction between local and global actors, focusing on the role of intermediaries. They
help us to “map the middle,” in Sally Merry’s phrase, to understand the mechanisms and
dynamics of state change.
124
1. Power asymmetries and the receiving state. Structural power asymmetries have
long driven transnational flows of legal norms, from Roman to Napoleonic to colonial
conquests.
125
The United States and Europe are the major producers of transnational legal
norms today and they have the means at their disposal to circulate them and induce their
adoption globally. They diffuse regulatory approaches through the strength of their know-
how and experience, coupled with technical assistance, capacity building programs, and
other inducements. They control the budgets of the IMF and World Bank, affecting their
policy prescriptions. Their national regulations and the private standards adopted by their
122
Campbell 2004, 21 (citing the work of Neil Fligstein). See also Hall 1993.
123
World polity theory “stresses the embeddedness of nation-states in a wider world cultural context of
meaning and models.” Kim and Boyle, this volume. World systems theory, in contrast, has a neo-Marxist
materialist orientation in which structural power, whether exercised by dominant states or transnational
capital, is the primary mediator of international relations, and such power is determined by a division of
production between “core” and “peripheral” states. See Wallerstein 2005; and Robinson 2001, 157-200.
Christopher Chase-Dunn and Thomas Hall “define world-systems as intersocietal networks in which the
interactions… are important for the reproduction of the internal structure of the composite units and
importantly affect changes that occur in these local structures”). Chase-Dunn and Hall 1997, 28. This
literature is usefully summarized and discussed in Halliday and Osinsky 2006, 454.
124
Merry 2006.
125
Cf Whitman 2009 (stressing the missionary influence in Christianity); and Mattei and Nader 2008
(stressing material interests).
35
private sectors set requirements for products around the world simply because of the
economic importance of their markets.
126
Structural power asymmetries create opportunities for transnational actors to use
leverage, such as economic coercion, in reshaping institutions and legal norms in target
states. Particular events, such as financial crises, enhance their ability to do so. Powerful
states are often behind these transnational processes, and they work through and in
conjunction with international and transnational institutions. Only states in structurally
weaker positions are subjected to mechanisms of economic coercion. The international
financial organizations exercised much more leverage over Indonesia during the Asian
financial crisis than they did over Korea, and they exercised no leverage over China, as
shown in Halliday’s study. They have often exercised leverage over developing countries
in shaping social policies, such as educational policy as depicted in the study by Kim and
Boyle. Economic coercion is most tempting to use when regulation has asymmetric
financial implications, benefitting some countries at the expense of others.
127
Such is the
case with intellectual property regulation, as Klug’s study shows regarding the U.S.
government’s attempt to threaten South Africa with trade sanctions, including the
withdrawal of tariff preferences and the cutting off of foreign aid, which it hoped to
legitimize in part by the claim that South Africa was in violation of WTO legal
requirements.
The studies in this volume, nonetheless, address the limits of the use of coercion,
calling into question how much real transformation occurs at the implementation stage
where only coercive mechanisms are used. Coercive measures can de-legitimate a
transnational legal process because they generate resentment. Coercive measures may
initially be successful in inducing symbolic legal change (in terms of legal enactments),
but ultimately be thwarted at the stage of actual implementation — the law-in-action. The
studies highlight both the use of coercive measures and their limits. Indonesia made
significant changes to its bankruptcy law in response to IMF conditions during the Asian
financial crisis, but implementation was often foiled in practice, as Halliday shows. Kim
and Boyle similarly show the limits of structural adjustment conditionalities on education
policy in developing countries, and Klug explains the eventual withdrawal of US legal
challenges against South Africa regarding its patent law.
128
2. The role of intermediaries. Second, for transnational legal processes to be
effective, they require intermediaries who are cognizant of both the processes of
transnational law-making and national settings. Intermediaries are the carriers, conduits,
and points of entry for the circulation of transnational legal norms.
129
They can operate at
the national or sub-national levels, and consist of public or private actors, thus offering
(to borrow from Judith Resnik) multiple “ports of entry” for transnational legal norms.
130
They help to diagnose national situations, monitor national developments and responses,
and translate, adapt and appropriate global norms for local contexts. Through their links
126
See e.g. Snyder 2002 (using the example of the global toy industry).
127
Braithwaite and Drahos 2000, 80 (comparing global processes for property and contract lawmaking) .
128
Klug, this volume; and Klug 2008.
129
Transnational legal norms depend on “the international circulation of experts and knowledge between
the North and the South.” Garth and Dezalay 2009, 113, 123.
130
Resnik 2006 (on ports of entry in federalist systems); Resnik et al. 2008 (discussing the role of
Transnational Organizations of Government Actors, or TOGAs); Sassen 2007, 190-212.
36
with international institutions and transnational networks, they form part of transnational
epistemic communities. They play central roles across areas of law, from human rights
law to business regulation.
131
Intermediaries, in the words of Bryant Garth and Yves
Dezalay, are “essential to produce the credibility and legitimacy of these transnational
norms.”
132
The impacts of transnational legal processes are, in part, a function of the
positions of intermediaries. Carruthers and Halliday have typologized intermediaries in
terms of their competencies, power, and loyalty.
133
Intermediaries may, for example, have
greater competence in legal or economic expertise, have variable power to translate
international legal scripts into national contexts, and have variable loyalties to actors at
the national and international levels. These intermediaries include cosmopolitan
government representatives, professional service providers, academics, think tank policy
analysts, nongovernmental organizations, and social movement leaders.
Local intermediaries can be empowered by transnational legal processes so that
they have a professional stake in them. Through their national and international
connections, they are able to inform themselves of developments both at home and
abroad, which provides them with informational advantages. International organizations
depend on them to convey transnational legal norms to work in local settings, bridging
cultural divides and, where necessary, indigenizing transnational norms. National
governments and organizations rely on them to present national positions in international
fora and within transnational networks. When these intermediaries have a stake in the
national adoption of transnational legal norms, they become important allies in attempts
to embed them, whether the norms are human rights or business ones.
The studies in this volume depict the key roles played by intermediaries. National
intermediaries respectively played key roles in the adoption, adaptation, and application
of transnational bankruptcy, financial transparency, and competition law norms, as shown
in the work of Halliday, Rocha Machado and Klug. Kim and Boyle show statistically the
correlation between the number of transnational non-governmental organizations
operating in countries and their adoption of international human rights obligations to
provide universal primary education, controlling for other factors. Yet although
intermediaries are necessary, they are not sufficient. To understand transnational legal
process and state change, domestic factors remain central.
C. The domestic context: Domestic demands, domestic struggles, and the extent of
change at stake. Arguably the most important determinant of state change is the affinity
131
On human rights, see e.g. Merry 2006, 1-2 (noting the “transnational circulation of people and ideas
transforming the world we live in”, and “highlighting the role of activists who serve as intermediaries
between different sets of cultural understandings of gender, violence, and justice.”) . On business law, see
e.g. Braithwaite and Drahos 2000. To give one example, in the four largest Korean law firms, three-
quarters of the lawyers who passed the bar between 1980 and 1990 had studied abroad, primarily in the
United States. Lee 2007, 245.
132
Garth and Dezalay 2009, 113, 114. Garth and Dezalay 2002a, 1,5. Dezalay and Garth refer to them as
brokers and double agents. They note how elites “use international credentials, expertise and connections to
build capital that they can reinvest in domestic public arenas” Garth and Dezalay 2002b, 34.
133
See Carruthers and Halliday 2006, 529-32. Where a country is culturally distant from the transnational
legal norm in question, local intermediaries tend to be fewer and more difficult to locate. These countries
are often those who are in a weaker power position, although not necessarily, as in the case of China.
Carruthers and Halliday 2006, 529-32.
37
of the transnational reform efforts with the demands and discursive frames of domestic
constituencies and elites in light of domestic configurations of power and the extent of
change at stake. This third cluster of factors involves domestic demand, domestic
political struggles, domestic institutional capacities and legacies, and domestic cultural
frames. Together these factors shape how transnational legal norms are received and
implemented in practice, affecting the extent of state transformation. Sometimes they
lead to the rejection of transnational law, sometimes to significant institutional and legal
change, and sometimes to an appropriation for purposes initially not considered.
134
First, transnational legal norms need local supporters. Sometimes domestic elites
will support their adoption because the elites believe that legal reforms will spur foreign
direct investment and promote economic growth, possibly in relation to inter-state
competition for power.
135
Sometimes professionals or commercial interests promote them
because reforms enhance their career and business prospects.
136
Sometimes domestic
activists support them as leverage against current government or private practices.
137
Second, transnational legal processes ultimately meet configurations of power
within national political contexts. Legal and institutional change advocated by
international organizations and transnational networks that seem rather technical, such as
over bankruptcy law, can upset careers and power configurations in domestic orders,
creating incentives for factions within governing elites and affected domestic
constituencies to thwart the reform efforts. Such transnational legal reform efforts are
difficult to implement because they can represent “the restructuring of the state itself.”
138
Transnational legal processes will be most successful if they are useful to national actors
as tools in these political contests.
Third, institutional path dependencies and capacities place constraints on national
change.
139
In many cases, countries, especially poorer countries, lack the institutional
capacities to carry out transnational legal prescriptions. In other cases, the reception of
transnational legal processes is mediated through domestic institutional structures which
have their own interests and their own long-standing ways. Institutionalized practices do
not change without sustained pressure. As Dezalay and Garth write, “the results of
particular exports of state expertises depend on the extent to which there are structural
homologies in the respective fields of the importers and exporters.”
140
Fourth, if transnational legal norms are to have an impact, they should resonate
with local norms. Discursive frames that are consonant with prevailing cultural and
institutional norms and practices are most likely to be accepted as legitimate within a
domestic setting, whether the norms comprise human rights, business or regulatory
134
As Moore (1974: 723) writes, “the social arrangements are often effectively stronger than the new
laws.”
135
See e.g. Berkowitz Pistor, and Richard 2003; and Halliday and Carruthers 2009, 339.
136
Dezalay and Garth 2010.
137
See e.g. Klug, this volume regarding access to medicines in South Africa.
138
Halliday, this volume.
139
See Campbell 2004, 28-29, 118 (stressing the role of institutional path dependencies); Peerenboom
2006: 833 (“Even when there is no ideological barrier to transplantation, local institutions may lack the
institutional capacity to implement reforms”); Fourcade-Gourinchas & Babb 2002 (providing a historical
institutionalist account of variation in the reception of neoliberalism in four countries).
140
Dezalay and Garth 2002b, 14.
38
norms.
141
Activists thus construct frames that will appeal in national contexts, such as the
use of human rights frames as opposed to feminist frames in challenging discrimination
against women.
142
Where discursive frames and policy prescriptions resonate in the
domestic setting, local actors can more effectively harness the transnational legal norm to
further their goals. Where the distance between the transnational legal order and the local
cultural and institutional context is considerable and the extent of change at stake great,
then transnational legal processes are less likely to have a transformative impact.
Local populations have their own interests and ideas and don’t simply accept and
reject transnational legal norms. They also exercise agency in translating, reshaping, and
appropriating transnational legal norms for their own uses in their own contexts, shaping
their own histories.
143
The norms may often be transformed for purposes that were not
contemplated by their transnational promoters. Klug’s study nicely illustrates this point
regarding the use of competition law in South Africa.
“While the new competition law in South Africa is modeled on European
Union, United Kingdom and Canadian statures, and draws on legal
concepts developed in the United States, it also represents a hybridization
of global norms and rules designed both to accommodate international
restraints as well as take advantage of the opportunities these norms and
rules provide to pursue particular national goals that are peculiar to the
history and social context of South Africa.”
144
In Klug’s case, local authorities use competition law norms developed in the United
States to rein in pharmaceutical prices charged by US-owned pharmaceutical companies,
as well as to empower new black ownership of capital.
145
Transnational legal processes
do not simply convey legal requirements that are internalized without reflection of
domestic interests and domestic stakes. They rather provide tools that national actors use
to advance particular policies. In this way, transnational legal norms cross-pollinate and
hybridize.
141
See Berkowitz, Pistor and Richard 2003, 174 (“legal intermediaries… can be more effective when they
are working with a formal law which is broadly compatible with the preexisting order, or which has been
adapted to match demand”) . Cf. Watson 1974; and (“[l]egal irritants cannot be domesticated; they are not
transformed from something alien into something familiar, not adapted to a new cultural context, rather
they will unleash an evolutionary dynamic in which the external rule’s meaning will be reconstructed and
the internal context will undergo fundamental change”) .
142
See Keck and Sikkink 1998, 196, 183-84; and Merry 2006, 135-38.
143
Campbell uses the concepts of “bricolage” and “translation.” Campbell 2004, 71, 80 (“the concept of
bricolage focuses our attention on a creative process in which actors make decisions about how to combine
the institutional elements at their disposal”). As Merry writes regarding the issue of women’s rights, local
actors “appropriate, translate, and remake transnational discourses into the vernacular,” that is, into terms
that resonate in local settings. Merry 2006, 3 (stressing “a process of appropriation rather than imposition.”
See also Dezalay and Garth 2002b, 6 (“[i]nternationally generated imports success only where the local
situation allows them to be nationalized—made part of indigenous structures and practices. Local histories
determine what can be assimilated into local settings and how what is assimilated will affect long-standing
local practices”).
144
Klug, this volume. See also Klug 2002, 276 (illustrating how “South African actors drew on foreign
sources of legitimacy to try to support their own points of view in the process”).
145
See also Hirsch 2005, 158-59, 193-201 (on competition law and the black economic empowerment
program).
39
The studies in this volume each focus on the role of domestic factors in explaining
the location, extent, timing, and limits of domestic change. On the one hand, they address
the power of local actors to thwart and foil transnationally-promoted legal change at the
stage of implementation. Weak actors at the level of international negotiations and
domestic ratification can become quite strong in foiling actual implementation of
transnational prescriptions. Indonesia may have been more easily subject to economic
coercion to carry out bankruptcy reforms advocated by international financial institutions
than Korea and China, but these changes were often thwarted at the implementation
stage, as illustrated in Halliday’s work. Similarly, Latin American social movements have
successfully resisted municipal water service reforms in weak states such as Bolivia, as
Morgan documents. Klug does the same regarding the work of NGOs in the fight over
patent protection and access to medicines in South Africa.
Yet the studies also address where transnational legal processes help precipitate
significant institutional and legal developments within countries. In Brazil, a government
concerned over organized crime used the transnational recommendations of the Financial
Action Task Force to tighten banking regulations in order to accomplish domestic goals
to combat organized crime and corruption, as Rocha Machado shows. The government
was less interested in U.S. and European concerns over terrorist networks which had
spurred an intensification of FATF activity. In contrast, financial reform efforts were less
successful in Argentina because no domestic demand was mobilized. Similarly, the three
Latin American countries studied by Morgan each “partially ceded [regulatory control] to
semi-independent regulatory institutions that strongly resemble the institutional
recommendations of the transnational consensus” for water services regulation. However,
analysis of “the implementation dynamics of these institutions… reveals significant
national differences.”
146
Chile, for example, implemented a transactional model promoted
by transnational actors, but it staged its urban water reforms in reflection of Chilean
government perceptions of national priorities. Transnational models likewise provided
templates for China in its bankruptcy reform efforts studied by Halliday, but China
adopted them at its own pace following extensive internal debate.
The interaction of the relative coherence of a transnational legal order (TLO) and
the degree of synchronicity of domestic demand for the legal changes envisaged can be
mapped as shown in Table 3, which notes where the different subject areas and countries
covered in this volume lie.
Table 3: TLOs and the Synchronicity of the Domestic Context
HIGH
(TLO coherence)
LOW
(TLO coherence)
HIGH
(Synchronic
domestic)
Corporate bankruptcy (Korea,
China); Money laundering
(Brazil); Competition law (South
Africa)
Municipal water services
regulation (Chile)
LOW
Corporate bankruptcy Municipal water services
146
She finds that, “[i]n Bolivia, the role played by the regulator in each case is coherent with the
transactional model but is politically marginalised; in Chile, a strongly transactional regulator maintains
political salience, and in Argentina, a more political model of regulation is erratically salient.”
40
(Synchronic
domestic)
(Indonesia); Money laundering
(Argentina); TRIPS and patents
(South Africa)
regulation (Bolivia; Argentina)
V. Transnational Legal Process and Recursive Change
Transnational legal process is a dynamic, recursive one, involving the interaction
between national and transnational law and policymaking. National law often provides
the models that are then exported to other nations through transnational legal processes.
Even when these models become accepted within international and transnational
institutions, their adoption is often resisted within countries at the stage of
implementation, which can trigger reassessments of the transnational legal norm. This
resistance can spur a new counter-politics of transnational coordination, organization, and
law-making, leading to competititve transnational legal processes. Table 4 provides a
summary of a simplified dynamic cycle of recursivity between national and transnational
lawmaking processes.
Table 4: Dynamic Cycles of Recursive Change
Flow a: National regulatory models are conveyed to and appropriated by an international
and transnational institutions and networks giving rise to transnational legal norms
Flow b: The transnational legal norms are conveyed to receiving states, but often
encounter resistance at the stage of enactment or practical implementation
Flow c: National resistance spurs a new transnational politics that triggers a reevaluation
and modification of the transnational legal norm
Flow d: A modified transnational legal norm is conveyed to national institutions and
processes
This depiction is a stylized one, as the processes are multifold and multidirectional, both
top down and bottom up, comprising competition and conflict as frequently as
coordination and cooperation, and involving ongoing interaction between national and
transnational legal norms. The intensity of this interaction varies in light of the degree of
settlement (if any) which is reached. A range of actors are involved, including key
intermediaries serving as conduits and conveyors of transnational and national legal
norms, who use a range of mechanisms, such as coercion, persuasion, reciprocal
bargaining, modeling, and acculturation, which we discussed in Part IV.
147
To break down the processes’ complexity, we can think of it, for heuristic
purposes, in terms of stages. First, a domestic policy export often provides a model for a
transnational legal order so that transnational legal norms are often globalized (or
transnationalized) localisms.
148
The United States and the European Union most
frequently provide the models.
149
When their models are not promoted through
147
For an expanded figure summarizing the exogeneous and endogeneous factors that driver recursive
processes, see Halliday & Carruthers 2009: 364.
148
Santos 2003, 275.
149
See e.g. Braithwaite and Drahos 2000, 27; Sassen, 2006.
41
transnational legal orders, U.S. and European resistance to transnational legal
prescriptions is often quite transparent. Yet their prominent role in providing models
tends to be overlooked in much of traditional international law scholarship which focuses
on the texts of international law as agreed by consensus. For example, U.S. and European
intellectual property law became the basis for the WTO Agreement on Trade-Related
Aspects of Intellectual Property Rights, their competition law norms the basis for the
International Competition Network’s principles and recommended practices, their anti-
money laundering legal prescriptions the basis for the FATF’s recommendations, and
their bankruptcy law the basis for the UNCITRAL Model Law and Legislative Guide.
These national models are disseminated through transnational legal processes, including
through technical assistance, capacity building, benchmarking, monitoring, and
enforcement measures. Transnational legal processes help to legitimize these legal
exports.
Second, however, these transnational legal norms and institutional prescriptions
often encounter resistance when the models are implemented in receiving states.
Powerful actors may prevail in international negotiations as well as in the domestic
enactment of transnational law. Yet actors who are quite weak (or unrepresented) in
international negotiating fora and before executives and legislatures can be powerful at
the stage of actual implementation.
150
Such resistance to transnational legal norms can
trigger reassessments of transnational strategies, as well as of the norms themselves.
Domestic implementation challenges send signals to international organizations over
what legal norms will be accepted and what rejected. Both positive and negative signals
flowing from the national to the transnational can compel the latter to reassess the
appropriateness of the transnational legal norm, triggering further iterations of
transnational lawmaking.
Third, national resistance to the implementation of transnational legal norms can
spur a new politics that catalyzes new transnational organizing and lawmaking.
Transnational pressures for neoliberal regulatory models, for example, can incite the
creation of new political coalitions to advance social welfare and human rights concerns,
as Morgan illustrates regarding municipal water services, Kim and Boyle regarding
primary education, and Klug regarding access to medicines. Although international and
transnational institutions tend to reflect the interests of the dominant powers, developing
countries and activist groups also can influence transnational law through their choice
among international and transnational institutions in a fragmented international system.
151
They often do so to create policy space for themselves.
As a result, many cycles of lawmaking may occur as international and
transnational institutions find that carefully crafted transnational legal norms are
unacceptable or unworkable in national regulatory settings. International and
transnational institutions are thus pressed to reassess the norms and institutional models
that they promote, as well as the mechanisms that they use to diffuse them. Many
iterations of transnational legal norms may be produced until some settlement is reached,
including tacit agreement to live and let live. Nonetheless, as states are transformed
along the dimensions discussed in Part III, and as intermediaries are empowered as
discussed in Part IV, these state changes and intermediaries can facilitate the conveyance
150
Halliday and Carruthers 2009, ch. 10.
151
Helfer 2004; Shaffer & Pollack 2008,
42
and appropriation of the transnational legal norm over time, potentially leading to a
greater embeddedness of the transnational legal order. That settlement, depending on
one’s politics, may be progressive or regressive.
While each of the studies captures these processes, let us turn to Halliday’s and
Bruce Carruthers’ work to provide a brief example. Halliday and Carruthers theorize the
following four mechanisms that drive recursivity: the indeterminacy of law;
contradictions introduced into the law; diagnostic struggles over how the problems are
construed to be resolved through law; and “actor mismatch.”
152
Actor mismatch occurs
when those actors who wield power in the domestic implementation of transnational legal
norms are not represented at the international negotiation stage. If their interests are not
taken into account, the resulting agreement is unlikely to be implemented effectively,
triggering a new recursive cycle. Similarly, if domestic actors integral to implementation
of a transnational legal norm are not represented in domestic law-making, they will be
less invested in the law’s implementation. In their case study of bankruptcy law,
international institutions such as the IMF, World Bank and regional development banks
looked predominantly to U.S. and U.K. national models in devising international
bankruptcy law norms in light of a series of financial crises that raised concerns of a risk
of global financial contagion. These financial institutions pedaled their bankruptcy law
reform models to states in East Asia, using different mechanisms, ranging from coercion
to persuasion to modeling, in light of the situation of the receiving state and the
availability of intermediaries. These bankruptcy law reform prescriptions, however, were
often successfully resisted by actors within the receiving states, even when they were
actually enacted into domestic law, as in Indonesia, because local actors who were not
represented in the international and national enactment processes retained power at the
implementation stage. This resistance led to the reformulation of the prescriptions at the
international level, with legal norm-making power shifting from the international
financial institutions to UNCITRAL, an organization in which developing countries were
better represented, and with the models themselves offering greater flexibility while
retaining precision regarding alternatives.
In sum, transnational legal norms and institutional models are negotiated over
time as part of dynamic, multi-directional, transnational legal processes. The studies in
this volume illustrate when and why transnational legal norms are resisted, adapted, and
appropriated. They do so through the empirical study of legal and institutional change in
countries varying in their relation to centers of global political and economic power.
Many of these countries are quite distal from these centers, but their politics nonetheless
can trigger reassessments of transnational legal norms.
Conclusion
Positivist international law scholars tend to narrow their focus on traditional
concepts of international law, and are thus skeptical of referring to transnational law,
legal orders and legal processes. Yet focusing on the construction and migration of
transnational legal norms through transnational legal processes is critical for the analysis
of how national law and institutions are shaped and understood, and how international
law (viewed more narrowly) itself is constituted and has effects. The studies in this
152
Halliday and Carruthers 2009, ch. 10.
43
volume evaluate how transnational legal norms and processes interact with domestic
contexts. In the socio-legal tradition, they heed close attention to the variable adoption
and adaptation of transnational legal norms in particular fields, and the factors that
explain this variation. They focus their inquiry on distinct regulatory fields (as opposed to
separate levels of governance) in order to assess how the transnational and national
interpenetrate. In this way, they illustrate the factors that lead to variation in the location,
type, extent, and timing of change spurred by transnational legal processes. Their
combination of methods, regulatory areas, and countries help us to create a map for
studying how transnational legal process works and the limits that it confronts.
The studies do not reify transnational law, but show how transnational law
provides a tool for particular actors to advance their aims. Each study examines the role
of public and private actors, mechanisms, and attributes of power involved in a particular
transnational legal process in different countries. Through a comparative approach, the
studies explain variation in countries’ responses. Transnationally-promoted legal change
sometimes catches and sometimes does not, and the studies explain why in light of the
stakes arising from the import of transnational law.
Building from these studies and related socio-legal work, this Article has set forth
a framework for evaluating how transnational legal process works and its implications for
legal and institutional change. This conclusion highlights six points. First, we need to
clarify what we mean by transnational law, transnational legal process, and transnational
legal orders, in contradistinction to international law and global law. This Article has
distinguished two conceptions of transnational law, the first being Transnational Law
Applying to Transnational Situations, and the second Transnational Law as the
Transnational Construction and Flow of Legal Norms. It has explained and illustrated
this second conception based on empirical studies.
Second, we must more carefully specify the dimensions of transnational-induced
change within states, since state change is differentiated. The Article identifies five
dimensions: change in substantive law and practice; change in the boundary of the state,
the market and other forms of social ordering; change in the institutional architecture of
the state; change in the shaping and role of professional expertise in governance; and
change in normative frames and accountability mechanisms and patterns of association
that embed them. By viewing transnationally-induced legal change in terms of these
broader dimensions of state change, we gain a richer understanding of what is at stake
with transnational legal processes.
Third, the Article stresses the heterogeneous nature of transnational legal
processes. The term transnational legal process can be misleading to the extent that it
suggests that transnational legal process involves a one-way conveyance of coherent
transnational legal norms until they become internalized and embedded within countries.
Rather, there are often multiple transnational actors, institutions, and processes in
competition with each other to convey different legal norms and prescriptions. This
competition affects the relative coherence, clarity, and perceived legitimacy of
transnational legal orders, and, in this way, affects the development of normative
consensus regarding a transnational legal order and thus its impact within states.
Fourth, we must identify and evaluate the factors that explain variation in the
impact of transnational legal processes. Do impacts vary as a function of identifiable
factors? This Article organizes these factors into three clusters: the nature of the
44
transnational legal order; its relation to the receiving state; and the particular political,
institutional, and cultural context of the receiving state. Where transnational law is clear,
coherent, and perceived to be legitimate, it is best positioned to bear influence.
Asymmetries of power between the transnational legal order and the receiving state
create opportunities for the use of coercive mechanisms, but the effectiveness of these
mechanisms may be limited at the implementation stage. Intermediaries are critical for
conveying and adapting transnational legal norms to local settings. Finally and crucially,
the impact of transnational law depends on the fit of a transnational legal norm with
domestic demand in light of domestic contests for power, institutional capacities and path
dependencies, and the extent of change at stake. Where the trajectory of change within a
state is synchronous with the transnational legal norm, or where powerful domestic actors
wish to harness it as leverage in domestic struggles, then transnational legal processes are
more likely to be transformative. Where domestic demand is lacking, change will more
likely be thwarted or be purely symbolic. Because the reception of transnational legal
norms is mediated by domestic institutions and configurations of power, the transnational
legal norm is often appropriated, adapted, and used in distinct and unanticipated ways.
Fifth, studies need to address the multi-directional nature of transnational legal
processes. Theorizing transnational law in terms of being adopted, adapted, or resisted
within national contexts constitutes only part of transnational legal processes. Those
focusing only on the issue of transnational law’s reception fail to capture how national
dynamics can generate new politics that affect the transnational legal norm in question.
These responses include those of not only states that are strong and proximate to
international institutions, but also those that are weak, distant, and peripheral.
Assessments of transnational legal process should address the dynamic processes
pursuant to which the national reception of transnational legal initiatives interact with the
production of transnational legal norms.
Sixth and finally, changes of national law and institutions cannot be reduced to
international realpolitik. Law plays a mediating role together with configurations of
power. Changes are often initiated, negotiated, and implemented by the agents,
practitioners and institutions of law – government lawyers, legal departments of
international organizations, judges, private lawyers, corporate legal officers, legal
academics, and lawyers for non-governmental organizations. This complex of legal actors
is not uniform in its legal views nor united in a policy agenda, and it operates in the
shadow of configurations of national and global power structures.
153
These actors
nonetheless form an important part of the politics of transnational lawmaking and
transnational legal norm conveyance. Moreover, national institutions and legal norms are
resilient. When transnational legal processes lead to legal and institutional change, they
do so in context-specific ways involving the intermediation of transnational legal
processes with domestic institutions, political struggles, and cultural norms. The
accompanying studies provide empirical grounding for understanding these processes and
their impacts.
Although this Article and the accompanying studies are not prescriptive, their
implications for the advancement of any normative goal are critical. What’s at stake is the
effectiveness of transnational legal processes and legal orders, on the one hand, and the
degrees of freedom that states and non-state constituencies retain to determine their
153
Cf. Dezalay and Garth forthcoming 2010; and Halliday, Feeley, and Karpik 2007.
45
futures, on the other. Whether one is an advocate of international or transnational law in
promoting state change in a particular domain, or a resister of such international and
transnational pressures and influences, understanding the broader institutional and social
implications of transnationally-induced legal change, and the factors which promote or
impede it, is critical. That’s what is at stake in the larger project, whether the substantive
field of concern entail human rights law, public regulatory law, or private business law.
This Article is not normative in its approach, but its framing implicitly reflects two
normative concerns. First, understanding the processes of international and transnational
law’s production, which often has a structural tilt in favor of certain states and non-state
actors, is important for understanding their relative effectiveness (or ineffectiveness) at
the implementation stage. In this way, the project draws attention to the role of
legitimacy of transnational legal orders. Second, it is important that international and
transnational law scholars give greater attention to the implications of international and
transnational law processes in non-U.S. and non-European states in light of their
particular contexts, and in the process give greater voice to the perceptions and priorities
of constituencies in those locales.
The study of transnational legal processes and state change beckons for further
analysis, and thus calls for systematic research agendas. The costs of engaging in this
research are relatively high, but so are the payoffs. When is transnationally-induced legal
change primarily symbolic and when does it have practical effects? When are particular
national institutions, such as courts and legislatures, empowered or disempowered? What
are the critical factors and conditions? What spurs the reassessment and development of
transnational legal norms over time? How do transnational legal orders maximize their
authority? By focusing on the dynamic interaction of transnational legal norms and
national law and institutions in particular regulatory fields, the studies in this volume
provide the basis for a richer understanding of transnational legal process and state
change, its opportunities, its limits, and its implications.
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