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UC Irvine Journal of International, Transnational, and Comparative Law

Abstract

A transnational legal order (TLO) authoritatively shapes “the

understanding and practice of law” in a specific area of social activity,

involving both state and civil society actors, and linking national, regional,

and international levels. We argue that a TLO has emerged and settled

since 1945 around capital punishment. Our analysis of the death penalty

TLO treats “bottom-up” and “top-down” effects as interconnected,

addresses the creation of legal order at both national and international levels,

and emphasizes the recursivity linking developments at both levels. We trace

the development of death penalty abolition from its origins in the immediate

aftermath of World War II. Because the practical effects of abolition—in

shaping legal and penal practice—necessarily occur at the national level, the

analysis focuses on the international, transnational, and domestic factors

that lead states to end capital punishment. After describing the emergence of

a TLO abolishing the death penalty, we offer a new way of measuring the

global and country-specific activities of transnational advocacy groups

(Human Rights Watch and Amnesty International). We incorporate that

measure in an analysis of data from about 150 countries. The central

hypothesis is that making the TLO on capital punishment effective through

abolition in national law requires modes of political action that overcome

majoritarian public support for retention. We suggest two domestic

institutional features that make abolition more likely despite retentionist

popular opinion: proportional representation in the legislature and

independent courts. We also suggest that transnational non-governmental

organizations (NGO) and some regional organizations can support the

move to abolish. The data analysis is largely consistent with these

propositions and brief case studies illustrate the principal mechanisms.

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