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UC Irvine Journal of International, Transnational and Comparative Law

Abstract

[T]he recent proposal made by Terence Halliday and Gregory Shaffer for a concept of “transnational legal ordering” emerges in the here described, contested realm of transnational law debates, which are, as we saw, part of a much larger investigation into law’s relationship to globalization. In the following pages, I will attempt to draw out the implications of these debates for a project such as Halliday’s and Shaffer’s by showing how proposals of transnational legalpolitical order design require us to critically interrogate the underlying assumptions that inform our model building. I will argue that one of the most pertinent assumptions in the transnational legal order (TLO) model is the idea of the state not only as a still relatively stable institutional environment but also as a reliable guarantor of public good delivery. In light of the state’s historical and symbolic prominence in the Western legal and political imagination in both these respects, there is a need to engage with the significance of the state, first, by revisiting a well-known story about the erosion of the welfare state under the conditions of globalization from the perspectives of both public and private law (II), before calling into question the alleged universality of the underlying assumptions regarding the state in that account (III). The next section will address concerns about the dominance of Rule of Law stories as they have been voiced by post-colonial scholars, before exploring the ways in which we trace the fragility of global law’s “intimations” in the emerging spaces of global legal imagination, and intervention (IV). In the concluding section, we will engage with the methodological consequences of the foregoing analysis of transnational regulatory arrangements. Understanding transnational law less as a neatly demarcated field of law, but rather as a methodological framework through which it might be possible to keep the historical (however parochial) stories in play without universalizing them and with a view to drawing on diverse sources and backgrounds in the categorization and classification of emerging transnational governance structures, the article will suggest the triad of actors, norms and processes as a robust and promising conceptual framework to capture the institutional and normative challenges arising from the transnationalization of law (V).

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