With, Within, and Beyond the State: The Promise and Limits of Transnational Legal Ordering
Gregory C. Shaffer and Terence C. Halliday, With, Within, and Beyond the State: The Promise and Limits of Transnational Legal Ordering University of California, Irvine School of Law & Legal Studies Research Paper Series (2016).
While some theorize the autonomy of transnational legal orders from nation-state law, we develop theory regarding the transnational interaction of lawmaking and practice among different levels of social organization that is intricately tied to state law. Our theoretical framework provides a way to assess empirically how legal norms interact at the transnational, national, and local levels in terms of their construction, conveyance, and practice. For us, the term “transnational” thus does not suggest the disappearance of the state, the withdrawal of the state as a major actor, or processes autonomous of state law, as contended by others. Rather, the term “transnational” has three core attributes. First, it highlights that states (through state officials) are just one among many actors engaged in transnational legal ordering. Second, it points to the ways transnational legal ordering transcends and often transforms states through their participation in transnational legal processes. Third, it underscores that one needs to assess the interaction of state and non-state actors at different levels of social organization, including international organizations and transnational networks, national institutions, and local practice, to understand transnational legal ordering. This interaction determines the extent to which legal norms settle across levels of social organization and give rise to transnational legal orders.