Theorizing Transnational Legal Ordering
Gregory C. Shaffer, Theorizing Transnational Legal Ordering Annual Rev. L. & Soc. Sci. (2016).
This article categorizes three approaches to theorizing transnational legal ordering that respectively address private legal ordering, reconfigure the concept of law, and provide a framework for the study of the interaction of norm-making and practice at the transnational, national, and local levels. The first approach develops theory based on the nature of the actors (private actors) and the form of legal ordering (private legal ordering), examining lawmaking, adjudication, and enforcement though non-state institutions. The second approach is conceptual and critical, developing transnational legal theory to critique and reformulate the concept of law to include non-state processes. The third approach provides a framework for orienting socio-legal study of the transnational processes through which legal norms are constructed, flow, and settle across national borders. The processes can be top-down, bottom-up, horizontal, and transversal, involving interaction among different public and private organizations and networks at different levels of social organization, from the transnational to the local, potentially giving rise to distinct transnational legal orders.