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Excerpt from “Transnational Law: An Essay in Definition with a Polemic Conclusion”

In Arts & Letters, Austrian Economics, Conservatism, Humane Economy, Jurisprudence, Law, Law-and-Literature, Liberalism, Libertarianism, Literary Theory & Criticism, Politics, Pragmatism, Transnational Law on August 3, 2011 at 11:18 am

Allen Mendenhall

A few months ago, the Libertarian Alliance, a London-based think tank, published my paper on transnational law.  Below is an excerpt from that paper.  The piece is available for download through SSRN by clicking here, or on the website of the Libertarian Alliance by clicking here.

In 1957, reviewing Philip Jessup’s Transnational Law, James N. Hyde wrote that “[t]ransnational law is not likely to become a term of art for a new body of law.”25  Mr. Hyde was wrong.  There has been a proliferation of relatively new law journals bearing “transnational law” in their titles: Transnational Law & Contemporary Problems: A Journal of the University of Iowa College of Law, Ashburn Institute Transnational Law Journal, Journal of Transnational Law & Policy, Vanderbilt Journal of Transnational Law, Transnational Law Review, and Columbia Journal of Transnational Law.  There are LLM programs in transnational law (such as the one I am in), and there are even institutes and think-tanks devoted to the study and development of transnational law.  Transnational law has in fact become the term of art for a new body of law, and here we will consider the nature and meaning of this term as well as the corpus of law it has created.  It is perhaps not coincidental that the emergence of transnational law coincided with transnational poetics26 and other transnational trends in literary criticism because the legal and literary fields always seem responsive to one another.

One of the earliest references, if not the earliest reference, to the concept of transnationalism comes from the pragmatist philosopher and student of John Dewey: Randolph Bourne.  Bourne’s use of the term “transnational” recalls William James’s notion of religious pluralism as non-absolute and non-monist.27  Bourne appears to have revised and extended James’s pragmatism to fit the political instead of the religious or philosophical context, although James himself came close to addressing the former context in “A Pluralistic Universe.”  Bourne’s essay “Trans-National America” regarded transnationalism as a cousin of cultural pluralism, the notion that differences in belief across cultures and communities may not be equally valid but can be at least equally practical.  Against essentialism, monism, and absolutism, Bourne posits a consequentialist system of polycentrism that regards multiplicity as positive and collectivism as dangerous.  Society can and should be multiple and heterogeneous, not single and homogeneous, for a one-size-fits-all polis can only materialize through the stamping out of minority views and through the erasing of distinct, regional cultures.  Put another way, Bourne transforms James’s varieties of religious experience28 into varieties of political experience.

Kenneth Burke, a literary critic, sometime student of pragmatism, and Marxist converted into a non-“ism” altogether, argued later in his life that ideology and fanaticism – by which he meant “the effort to impose one doctrine of motives abruptly upon a world composed of many different motivational situations”29 – were destructive missions incompatible with pluralism or democracy.  Burke, who remained naively critical of the free market, nevertheless refused ideologies as simplifying what cannot be simplified: human behavior.  What Burke did not realize is that free market theories, especially those of the Austrian variety, are not deterministic: they refuse to pigeonhole people or to reduce them to economic calculations; they treat humans as unpredictable and spontaneous and celebrate the sheer variety of human behavior.  My point in referencing Burke is not to systematically demolish his economic preferences but to suggest that his wide-ranging theories have positive implications for our understanding of transnationalism.  One could argue that Bourne and Burke were the earliest expositors of transnationalist theories tied to the practical world and that Jessup and others merely repackaged Bourne and Burke’s dicta.  Regardless of whether Jessup either read or credited Bourne and Burke, the theories emanating from these two literary critics would have been in circulation at Jessup’s moment in history.  Jessup, widely read as he was, probably would have encountered Bourne and Burke’s transnationalism directly or indirectly.

The proximate basis for Jessup’s turn to transnational law is the belief that “international law” is too vacuous a signifier.  Jessup opens Transnational Law by declaring that the term “international law” is misleading because “it suggests that one is concerned only with the relations of one nation (or state) to other nations (or states).”30  Acknowledging that much anxiety about planetary rules and regulations stems from the “lack of an appropriate word or term” for those rules and regulations,31 Jessup employs the term “transnational law” to “include all law which regulates actions or events that transcend national frontiers.”32  That word “frontiers” should strike literary critics as particularly resonate in light of the many constellations of frontier studies springing up since the publication of Gloria Anzaldúa’s Borderlands.

Jessup’s terminology incorporates both private and public law33 and addresses disputes between “individuals, corporations, states, organizations of states, or other groups.”34  For him, transnational law is a multi-hemispheric interaction of economies, politics, people, and communication that regards the state as merely one player among corporate bodies and individuals (even stateless individuals).35  Understanding transnational law requires us to “avoid thinking solely in terms of any particular forum, since it is quite possible […] to have a tribunal which does not have as its own law either a body of national law or the corpus of international law.”36  In the present era of globalization, Atlantic studies, indigenous studies, pan-Africanism, postcolonialism, terrorism, and the Internet, Jessup’s take on transnational law seems far less revolutionary than it did in 1956.  “Both the demise of the Cold War and the revolution of communications technology,” Samuel P. Baumgartner suggests, “have heightened our awareness of the limits of national borders and of the concomitant importance for our own law-making enterprises of social, economic, and legal developments elsewhere.”37  We have grown accustomed to thinking about disputes involving multinational corporations, citizens, and groups.  Insofar as lawyers “today cannot restrict themselves to studying black letter law, because globalization has created an abundance of other norm systems that also regulate human behavior,”38 we have also grown accustomed to thinking of legal pluralisms as commonplace.  We are only lately growing accustomed to thinking of transnationalism in terms of hybridity, ethnicity, multirootedness, and other literary fashions that, like Bourne and Burke’s pluralism, are gaining purchase and will continue to gain purchase.

In 2007, Harvard Law School held a conference called “Teaching from the Left” that revealed just how out-of-touch the so-called academic left has become with conservative thought and theory.  Indeed, many of the presenters, including David Kennedy, parroted lines that conservative and libertarian activists have been trumpeting for years. Justin Raimondo’s Antiwar.com has been a consistent voice in this conservative/libertarian activism.  The website operates under the aegis of the Randolph Bourne Institute, a fact that should have some resonance in light of my comments about Bourne and pluralism.   

The Harvard conference testified to the belief held by many traditionalists and paleoconservatives that neoconservative intellectuals (ranging from Leo Strauss to Irving Kristol and his son William Kristol, editor of The Weekly Standard) hijacked the conservative movement and rewrote the conservative narrative to fit the aims of disaffected socialists and leftists, and therefore that contemporary leftist objections to the diplomatic policies of George W. Bush and other conservatives should be directed at the legacy of liberalism instead.  On the other hand, the conference revealed that the left and traditional right could form an alliance to disrupt state power if thinkers from both camps were not so insulated and woefully ignorant of the commonalities they share.  One such commonality is the attention to “the fragmentation, disaggregation, and multiplicity of the international regime.”39  This attention invariably leads to legal pluralism, “the experience that things don’t add up, that coherence fails, that incommensurability must be acknowledged.”40  Legal pluralism, in short, undoes the idea that “there is national law and international law, public law and private law, and that the legal order is a tidy sum of the four.”41  Legal pluralism occupies that liminal space between law and “not law.”  It is a product of a postmodernist era that acknowledges the fragmentation and confusion of human experience.  The Western left takes to pluralism because of its seeming commitment to diversity; the Western right takes to pluralism because of its protection and conservation of unique regional traditions and customs (to put it bluntly: the idea that Western cultures have every right to preserve their heritages and histories as does “the other”).

Transnational law participates with postmodernism, “a periodizing concept whose function is to correlate the emergence of new formal features in culture with the emergence of a new type of social life and a new economic order – what is often euphemistically called modernization, post-industrial or consumer society.”42  A Marxist literary critic might say that transnational law is a product of the “belated theorization of the new forms of mass culture as so many manifestations of ‘postmodernism’ now seems to complete these new positions at the same time that it profoundly problematizes them.”43  A free market economist might say that transnational law is “the role of freely competitive judiciaries” brought about by “privately competitive judges, who were sought out by litigants for their expertise in understanding the legal areas involved,” which areas include, inter alia, the “law merchant, admiralty law, and much of the common law.”44  Both the Marxist literary critic and the free market economist are right to some extent.

Legal scholars as a class seem to be less theoretical about their references to the transnational.  Indeed, some legal scholars appear to use the term “transnational law” in its most literal sense: with the “trans” prefix meaning something like “across” or “beyond” and the “national” referring to countries and their respective laws and constitutions.  Although this usage reflects the idea that transnational law “represents a hybrid of domestic and international law that has assumed increasing significance in our lives,”45 it does not go so far as to address transnational law as “the law of global democracy, the law of global governance, the law of transnational crime, the law of transnational injury and redress, the law of regulation of transnational markets, and the law of transnational dispute resolution.”46  Transnational law is much more than comparative law or an investigation of, say, how the United States Constitution differs from the Constitution of Japan.  It is a jurisprudence that accommodates the latest phenomena of globalization and the shrinking world and that “is itself the result of individual and group preferences – within and outside of the government – exerted either directly through participation in the legislative, administrative, and litigation processes, or indirectly by engaging in transactional or litigation strategies designed to take advantage of, or frustrate, substantive or procedural policy.”47  Moreover, transnational law “concerns much more than inter-state relationships or matters of personal status”; “includes reciprocal influences of legal regimes and general tendencies in the evolution of law”; “encompasses law that is created outside the realm of state control”; and is “all about an open, legal pluralist, conception of law in which formal legal processes give way to the examination and theorization of concrete normative reality.”48  Transnational law dismantles the homogeny and coerciveness of nationalist rules and regulations; it is “a metaphor for the means through which law is transformed by more general movements of internationalization or globalization.”49  Those who use the term “transnational law” to refer to a so-called universal system do so quite sloppily because the “transnational” signifier is all about shattering universalisms, which are always fictions in the legal world because no legal system has proven universal in application or foundation.  Indeed, transnationalism suggests that there are no supercommunities or superstructures with which individuals have to identify.

Transnational law constrains the power of the state over matters of litigation and even strikes at the already hemorrhaging notion of sovereignty.50  It results in disputation brought before non-state-sponsored legal bodies whose decisions have the force of law despite a lack of military or like police mechanisms to enforce law.51  For example, transnational alternative dispute resolution, or transnational ADR, is becoming increasingly important in our globalized economy because it gives clients more say about who will decide cases, empowers clients to choose procedural rules that guide the application of laws (also chosen by clients), and allows clients to have cases decided more quickly and efficiently than the cases would be if lodged in bureaucratic layers of government courts.  Organizations such as the American Arbitration Association offer “clients the opportunity to file cases under specific sets of rules, which allow clients to choose where a dispute will be arbitrated as well as provide a mechanism to select a skilled arbitrator or mediator with the appropriate language skills.”52  These organizations are ultimately backed with the power of government because clients can choose which government (which nation or state within a nation) they want to administer sanctions if a party violates the arbitrated decision.  But it is not far-fetched to imagine other, nongovernmental enforcement mechanisms such as those used for centuries under maritime law.  These laws obtained to people despite their approval by governments.  The laws of war, moreover, were around long before The Hague Convention (1907) or the Geneva Convention (1949); therefore, formal codification of these rules by states was not necessary for general law to exist.

The landscape of law in today’s atmosphere of declining nation states could mean a return to legal habits and commonplaces before the rise and solidification of nation states, or it could mean, on the contrary, the rise of new supragovernmental legal systems: mega-states wherein centralized authorities promulgate rules to communities with less negotiating leverage.  Such a system may not seem bad if it applied only peremptory norms: prohibitions against genocide, for instance, or slavery.  But if this system implicated trade or finance, as the WTO does, and if it favored the interests of multinational corporations and more powerful nations, leaving poorer nations with little influence, then it would become an oppressive system.  Transnational law, as manifest in ADR and similar mechanisms, goes a long way towards establishing agency for developing or disenfranchised communities.

Domestic law still plays a role in transnationalist systems,53 but its role is highly mediated and always contingent.  Transnational law is a “web of transnational interdependence”54 that makes up a network “from which the law originates and where it sometimes operates […] on a supra-jurisdictional level.”55  Transnational law has allowed for the circulation of ideas in a way that no nation state model has before.  It is gradually establishing a system that accommodates multiple beliefs and practices and that accepts as valid the regulatory mechanisms of marginalized and disenfranchised groups.  It is the closest we have come in several centuries to a system of voluntary institutions that “emerge to effectively and peacefully resolve the disputes arising in everyday life”—a system of market law that is both “more efficient” and “more equitable than the government alternative.”56  Previously, suits were mostly settled in accordance with treaties or laws of particular nations; today, suits are frequently settled by international organizations such as the American Arbitration Association that incorporate into their procedures any number of foreign laws.

What, then, is transnational law?  In short, it is the pluralistic order of various principles and rules from divergent customs, cultures, and communities that draws its lexicon from competing philosophical discourses and not from top-down, coercive commands of states or sovereigns.  It is a rejection of the power and modes of statism and a reversal of state-formation.  It is an unsettling of borders and boundaries and a turn toward compromise and competition as means by which to settle disputes.  The beauty of transnational law is that it serves the putatively “liberal” interest of pluralism while serving the putatively “conservative” interest of minimizing and circumventing government bureaucracy.

(25) James H. Hyde, “Review of Transnational Law,” 66

Yale Law Journal 813 (1957).

(26) C.f., Jahan Ramazani, A Transnational Poetics (Chicago,

London: University of Chicago Press, 2009).

(27) See William James, A Pluralistic Universe (New York,

London, Bombay, and Calcutta: Longmans, Green, and

Co., 1909).

(28) See William James, The Varieties of Religious Experience:

A Study in Human Nature (New York, NY: The Modern Library,

1902).

(29) Kenneth Burke, A Grammar Of Motives 318 (Berkeley

and Los Angeles: University of California Press, 1969).

(30) Philip Jessup, Transnational Law 1 (New Haven, CT:

Yale University Press, 1956).

(31) Id.

(32) Id. at 2.

(33) Id.

(34) Id. at 3.

(35) Id. at 3.

(36) Id. at 6.

(37) Samuel P. Baumgartner, “Is Transnational Litigation

Different?” 25 University of Pennsylvania Journal of International

Economic Law 1297, 1300 (2004).

(38) Wibo M. van Rossum, “Resolving Multicultural Legal

Cases: A Bottom Up Perspective on the Internationalization

of Law,” in 2 The Internationalization of Law and Legal

Education 113 (Jan Klabbers and Mortimer Sellers, eds.)

(Springer, 2008).

(39) David Kennedy, “One, Two, Three, Many Legal Orders:

Legal Pluralism and the Cosmopolitan Dream,” 31

New York University Review of Law and Social Change 641 (2007).

(40) Id. at 641.

(41) Id. at 643.

(42) Frederic Jameson, The Cultural Turn: Selected Writings on

the Postmodern, 1983-1998 3 (London and New York: Verso,

1998).

(43) Frederic Jameson, Late Marxism 142 (London and

New York: Verso, 1990).

(44) Murray Rothbard, Man, Economy and State: A Treatise on

Economic Principles with Power and Market: Government and the

Economy 1051 (2nd ed., The Scholar’s Edition) (Auburn,

Alabama: Ludwig Von Mises Institute, 2009).

(45) Harold Hongju Koh, “Why Transnational Law Matters,”

24 Penn State International Law Review. 745 (2006).

(46) Id. at 751. “Not only does transnational law already

represent a growing part of the Supreme Court’s docket,

but in a new millennium, the study of transnational law

will soon affect and be reflected in all aspects of our legal

education.” Id. at 753.

(47) Baumgartner, “Is Transnational Litigation Different?”

at 1361.

(48) Sébastien Lebel-Grenier, “What is a Transnational

Legal Education?” 56 Journal of Legal Education 190, 191

(2006).

(49) Id. at 192.

(50) “This process runs several ways. Frequently, more

than one country attempts to regulate particular patterns

of behavior with the result that state action needs to account

for the preferences of other governments in the

international system. Moreover, affected transnational

actors have more than one government to address their

grievances. Thus, the policy decisions of one state may

result in responsive governmental action both at home and

abroad.” Baumgartner at 1361.

(51) “Nation states may truly fashion the law of transnational

litigation as they deem fit, although their efforts are

superseded by a growing patchwork of rules and standards

of international law and are increasingly controlled by the

jurisprudence of supranational tribunals.” Id. at 1379.

(52) American Arbitration Association website: http://

http://www.adr.org/icdr.

(53) Christopher A. Whytock, “Domestic Courts and

Global Governance,” 84 Tulane Law Review. 67 (2009).

(54) Baumgartner at 1380.

(55) Lebel-Grenier at 191.

(56) Robert P Murphy, Chaos Theory 11 (New York: RJ

Communications, 2002).

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  1. Wonderful piece of writing..

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