Pub Date : 2021-04-14DOI: 10.1093/OXFORDHB/9780197547410.013.53
Eve Darian-Smith
Transnational legal education is increasingly understood as important to teaching law within the context of a global political economy and global flow of goods, people, services, and legal concepts. Transnational legal education has been driven by the need for primarily elite lawyers, often working in global law firms, to serve expanding capitalist needs. This shift in legal services has accompanied the decentralization of state power and correlative privatization and deregulation of legal norms over the past forty years. However, what is often not explicitly stated by those supporting transnational legal education is that its pedagogy, and the material practices of transnational law, intrinsically involve the concept of legal pluralism. This chapter strives to place the concept of legal pluralism front and center into the conversation on transnational legal education and in so doing highlight that all legal processes (at subnational, national, and transnational levels) are relational, dynamic, and deeply imbricated in culturally contingent contexts and diverse worldviews. The lessons learnt about legal pluralism in the teaching of transnational law are thus relevant and applicable to all kinds of legal education, be it explicitly engaged with legal practices operating beyond national borders or not.
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Pub Date : 2021-04-14DOI: 10.1093/OXFORDHB/9780197547410.013.43
M. Siems, D. Nelken
Skeptical views tend to dominate the debate about the role of global social indicators in transnational law. However, the reason global social indicators have emerged is often that local and national legislation would not be sufficient and that agreement on international legal norms is not feasible. Indeed, it can be observed that global social indicators have proliferated in recent years as they reach across many societal fields. Moreover, this chapter shows that at all levels of legitimacy (“input,” “output,” and “throughput”), it is at least possible to make indicators more legitimate. This also acknowledges that some indicators fall short of these standards of legitimacy. Problems of the legitimacy of global social indicators will therefore remain relevant in the foreseeable future.
{"title":"Global Social Indicators and their Legitimacy in Transnational Law","authors":"M. Siems, D. Nelken","doi":"10.1093/OXFORDHB/9780197547410.013.43","DOIUrl":"https://doi.org/10.1093/OXFORDHB/9780197547410.013.43","url":null,"abstract":"Skeptical views tend to dominate the debate about the role of global social indicators in transnational law. However, the reason global social indicators have emerged is often that local and national legislation would not be sufficient and that agreement on international legal norms is not feasible. Indeed, it can be observed that global social indicators have proliferated in recent years as they reach across many societal fields. Moreover, this chapter shows that at all levels of legitimacy (“input,” “output,” and “throughput”), it is at least possible to make indicators more legitimate. This also acknowledges that some indicators fall short of these standards of legitimacy. Problems of the legitimacy of global social indicators will therefore remain relevant in the foreseeable future.","PeriodicalId":236573,"journal":{"name":"The Oxford Handbook of Transnational Law","volume":"50 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-04-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124763656","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Since the inadequacy of the traditional theoretical frameworks for the study of the “global transformation of modernity” (Beck) was becoming more and more evident in the last decades of the twentieth century, “culture” has figured prominently in many literatures that engage with the post-national condition. Yet in legal academia, despite studying similar phenomena of displacement, fragmentation and hybridization, cultural analysis perspectives have traditionally played a rather marginal role in the discourse on globalization and transnationalization. Although some authors have indeed attempted to operationalize the concept of culture in grappling with effects of legal globalization, the emerging field of “transnational law” never took a significant “cultural turn”. This chapter retraces this disciplinary development and reflects on the use of “culture” in transnational law discourse. While not advocating a more prominent role for the notoriously difficult concept of culture, this brief survey serves as a reminder that the same substantive and theoretical choices that kept transnational law from drawing more heavily on cultural analysis and traditional, “social fact” legal pluralism also may limit its scope and create theoretical blind spots. Not determined by a distinct “body of law” but rather understood as a developing discourse within a discipline in the process of coming into its own, transnational law and its gatekeepers have to decide just how methodologically and substantively inclusive, interdisciplinary, and critical they want it to be.
{"title":"Out of Site: Transnational Legal Culture(s)","authors":"H. Dedek","doi":"10.2139/ssrn.3678046","DOIUrl":"https://doi.org/10.2139/ssrn.3678046","url":null,"abstract":"Since the inadequacy of the traditional theoretical frameworks for the study of the “global transformation of modernity” (Beck) was becoming more and more evident in the last decades of the twentieth century, “culture” has figured prominently in many literatures that engage with the post-national condition. Yet in legal academia, despite studying similar phenomena of displacement, fragmentation and hybridization, cultural analysis perspectives have traditionally played a rather marginal role in the discourse on globalization and transnationalization. Although some authors have indeed attempted to operationalize the concept of culture in grappling with effects of legal globalization, the emerging field of “transnational law” never took a significant “cultural turn”. This chapter retraces this disciplinary development and reflects on the use of “culture” in transnational law discourse. While not advocating a more prominent role for the notoriously difficult concept of culture, this brief survey serves as a reminder that the same substantive and theoretical choices that kept transnational law from drawing more heavily on cultural analysis and traditional, “social fact” legal pluralism also may limit its scope and create theoretical blind spots. Not determined by a distinct “body of law” but rather understood as a developing discourse within a discipline in the process of coming into its own, transnational law and its gatekeepers have to decide just how methodologically and substantively inclusive, interdisciplinary, and critical they want it to be.","PeriodicalId":236573,"journal":{"name":"The Oxford Handbook of Transnational Law","volume":"168 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-04-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132291176","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2016-12-08DOI: 10.1093/OXFORDHB/9780197547410.013.45
G. Shaffer, T. Halliday
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 nonstate actors at different levels of social organization, including international organizations and transnational networks, national institutions, and local practice, to understand transnational legal ordering.
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Pub Date : 2010-03-22DOI: 10.1093/oxfordhb/9780197547410.013.2
W. Twining
This chapter sets out to demystify the topic of legal pluralism by examining the relationship between legal pluralism, normative pluralism, and general normative theory from a global perspective. The central theme is that treating legal pluralism as a species of normative pluralism decenters the state, links legal pluralism to a rich body of literature, and helps to show that some of the central puzzlements surrounding the topic can usefully be viewed as much broader issues in the general theory of norms and legal theory. A second theme is that so-called “global legal pluralism” is in several respects qualitatively different from the older anthropological and sociolegal accounts of legal pluralism and is largely based on a different set of concerns. Following the introduction in section I, section II considers normative pluralism. It explores the ambiguity of “pluralism” and some themes in general normative theory. Section III introduces the heritage of literature on legal pluralism. It presents an ideal type of social fact legal pluralism to which much, but by no means all, of the mainstream literature approximates. Some brief case studies illustrate some distinctions that are increasingly under attack. Section III suggests that social fact pluralism has achieved much in raising awareness of nonstate normative orders, but provides little guidance on issues of state policy and institutional design. Section IV considers the implications of adopting a global perspective in this context. It questions how far social fact legal pluralism is helpful in addressing a wide range of concerns raised by “globalization” and argues that the radically ambiguous idea of “global legal pluralism” is being applied to such a variety of phenomena and concerns as to be virtually meaningless.
{"title":"Normative and Legal Pluralism: A Global Perspective","authors":"W. Twining","doi":"10.1093/oxfordhb/9780197547410.013.2","DOIUrl":"https://doi.org/10.1093/oxfordhb/9780197547410.013.2","url":null,"abstract":"This chapter sets out to demystify the topic of legal pluralism by examining the relationship between legal pluralism, normative pluralism, and general normative theory from a global perspective. The central theme is that treating legal pluralism as a species of normative pluralism decenters the state, links legal pluralism to a rich body of literature, and helps to show that some of the central puzzlements surrounding the topic can usefully be viewed as much broader issues in the general theory of norms and legal theory. A second theme is that so-called “global legal pluralism” is in several respects qualitatively different from the older anthropological and sociolegal accounts of legal pluralism and is largely based on a different set of concerns. Following the introduction in section I, section II considers normative pluralism. It explores the ambiguity of “pluralism” and some themes in general normative theory. Section III introduces the heritage of literature on legal pluralism. It presents an ideal type of social fact legal pluralism to which much, but by no means all, of the mainstream literature approximates. Some brief case studies illustrate some distinctions that are increasingly under attack. Section III suggests that social fact pluralism has achieved much in raising awareness of nonstate normative orders, but provides little guidance on issues of state policy and institutional design. Section IV considers the implications of adopting a global perspective in this context. It questions how far social fact legal pluralism is helpful in addressing a wide range of concerns raised by “globalization” and argues that the radically ambiguous idea of “global legal pluralism” is being applied to such a variety of phenomena and concerns as to be virtually meaningless.","PeriodicalId":236573,"journal":{"name":"The Oxford Handbook of Transnational Law","volume":"31 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2010-03-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131673626","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 1900-01-01DOI: 10.1093/oxfordhb/9780197547410.013.51
J. Harrington, A. Manji
In the late 1950s and early 1960s, the setting up of university law schools in many African nations led to often bitter battles over the purpose of legal education. The stakes in these struggles were high. Deliberately neglected under colonial rule, legal education was an important focus for the leaders of new states, including Kwame Nkrumah, the first president of Ghana. It was also a significant focus for expatriate British scholars and American foundations seeking to shape the development of new universities in Africa. Disputes centered on whether training would have a wholly academic basis and be taught exclusively in the University of Ghana or be provided in addition through a dedicated law school with a more practical ethos. This debate became entangled in a wider confrontation over academic freedom between Nkrumah’s increasing authoritarian government and the university, and indeed in wider political and class struggles in Ghana as a whole. Tensions came to a head in the period between 1962 and 1964 when the American Dean of Law was deported along with other staff over allegations of their seditious intent. This chapter documents these complex struggles, identifying the broader political stakes within them, picking out the main, rival philosophies of legal education which animated them, and relating all of these to the broader historical conjuncture of decolonization. Drawing on a review of archival materials from the time, the chapter shows that debates over legal education had a significance going beyond the confines of the law faculty. They engaged questions of African nationalism, development and social progress, the ambivalent legacy of British rule and the growing influence of the United States in these territories.
{"title":"“Africa Needs Many Lawyers Trained for the Need of Their Peoples”: Struggles over Legal Education in Kwame Nkrumah’s Ghana","authors":"J. Harrington, A. Manji","doi":"10.1093/oxfordhb/9780197547410.013.51","DOIUrl":"https://doi.org/10.1093/oxfordhb/9780197547410.013.51","url":null,"abstract":"In the late 1950s and early 1960s, the setting up of university law schools in many African nations led to often bitter battles over the purpose of legal education. The stakes in these struggles were high. Deliberately neglected under colonial rule, legal education was an important focus for the leaders of new states, including Kwame Nkrumah, the first president of Ghana. It was also a significant focus for expatriate British scholars and American foundations seeking to shape the development of new universities in Africa. Disputes centered on whether training would have a wholly academic basis and be taught exclusively in the University of Ghana or be provided in addition through a dedicated law school with a more practical ethos. This debate became entangled in a wider confrontation over academic freedom between Nkrumah’s increasing authoritarian government and the university, and indeed in wider political and class struggles in Ghana as a whole. Tensions came to a head in the period between 1962 and 1964 when the American Dean of Law was deported along with other staff over allegations of their seditious intent. This chapter documents these complex struggles, identifying the broader political stakes within them, picking out the main, rival philosophies of legal education which animated them, and relating all of these to the broader historical conjuncture of decolonization. Drawing on a review of archival materials from the time, the chapter shows that debates over legal education had a significance going beyond the confines of the law faculty. They engaged questions of African nationalism, development and social progress, the ambivalent legacy of British rule and the growing influence of the United States in these territories.","PeriodicalId":236573,"journal":{"name":"The Oxford Handbook of Transnational Law","volume":"28 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133689687","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This chapter trace how “transnational migration law” has come to construct human mobility. It argues that transnational migration law is best conceived of as a useful methodological approach, rather than a distinct area of legal doctrine or spatial domain of law. Conceived as a method, transnational migration law can reveal the juridical assemblage of practices, subjects, and relations for regulating migration. This chapter illuminates some of the core and potentially rival sites, forms, and practices of transnational migration lawmaking, drawing attention to the productive and coercive forces of transnational migration law that have resulted in the maintenance of a “global hierarchy of mobility.” Yet, recognizing that state attempts to monopolize “the legitimate means of movement” are incomplete and contested, the chapter argues that scholars of “transnational migration law” must pay attention to diverse and situated Indigenous legal traditions as sources of authority. In doing so, the chapter critically unpacks the relationship between migration and struggles for decolonization and global justice.
{"title":"Transnational Migration Law: Authority, Contestation, Decolonization","authors":"S. Dehm","doi":"10.2139/ssrn.3465335","DOIUrl":"https://doi.org/10.2139/ssrn.3465335","url":null,"abstract":"This chapter trace how “transnational migration law” has come to construct human mobility. It argues that transnational migration law is best conceived of as a useful methodological approach, rather than a distinct area of legal doctrine or spatial domain of law. Conceived as a method, transnational migration law can reveal the juridical assemblage of practices, subjects, and relations for regulating migration. This chapter illuminates some of the core and potentially rival sites, forms, and practices of transnational migration lawmaking, drawing attention to the productive and coercive forces of transnational migration law that have resulted in the maintenance of a “global hierarchy of mobility.” Yet, recognizing that state attempts to monopolize “the legitimate means of movement” are incomplete and contested, the chapter argues that scholars of “transnational migration law” must pay attention to diverse and situated Indigenous legal traditions as sources of authority. In doing so, the chapter critically unpacks the relationship between migration and struggles for decolonization and global justice.","PeriodicalId":236573,"journal":{"name":"The Oxford Handbook of Transnational Law","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126037789","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 1900-01-01DOI: 10.1093/OXFORDHB/9780197547410.013.37
P. Paiement
Transnational governance raises challenging questions about the appropriate roles of legal institutions, states, and global markets in realizing and protecting social and environmental sustainability. Diverse groups of actors, ranging from multinational companies to grassroots social movements, engage in manifold strategies to respond to the consequences of economic globalization on local environments, precarious workers, and Indigenous and traditional communities. This chapter evaluates transnational governance activities in light of a dichotomy between two opposing globalizations, one which is focused on realizing economic solutions to the economic factors that threaten sustainability, the other which leverages the mobilization of bottom-up social movements to develop political responses. Through examples of private rulemaking, corporate self-regulation, transnational constitutional movements, extraterritorial legislation, and transnational litigation, this chapter identifies conflicts about the capacity of global markets to guarantee social and environmental sustainability, as well as the role of the contemporary state and its institutions in governing global market actors.
{"title":"Transnational Sustainability Governance and the Law","authors":"P. Paiement","doi":"10.1093/OXFORDHB/9780197547410.013.37","DOIUrl":"https://doi.org/10.1093/OXFORDHB/9780197547410.013.37","url":null,"abstract":"Transnational governance raises challenging questions about the appropriate roles of legal institutions, states, and global markets in realizing and protecting social and environmental sustainability. Diverse groups of actors, ranging from multinational companies to grassroots social movements, engage in manifold strategies to respond to the consequences of economic globalization on local environments, precarious workers, and Indigenous and traditional communities. This chapter evaluates transnational governance activities in light of a dichotomy between two opposing globalizations, one which is focused on realizing economic solutions to the economic factors that threaten sustainability, the other which leverages the mobilization of bottom-up social movements to develop political responses. Through examples of private rulemaking, corporate self-regulation, transnational constitutional movements, extraterritorial legislation, and transnational litigation, this chapter identifies conflicts about the capacity of global markets to guarantee social and environmental sustainability, as well as the role of the contemporary state and its institutions in governing global market actors.","PeriodicalId":236573,"journal":{"name":"The Oxford Handbook of Transnational Law","volume":"53 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122522931","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 1900-01-01DOI: 10.1093/oxfordhb/9780197547410.013.6
C. Thornhill
This chapter presents an account of the constitutional law of transnational society from a distinctively political perspective. It uses a neoclassical definition of the constitution as the legal norms that frame the actions of a political system to examine and construct constitutional functions that reach beyond the legal systems of nation-states. It advances the thesis that the concept of transnational constitutional law can be applied to three separate legal-political domains in contemporary global society. This concept can be used to analyze constitutional aspects of international law, and it can be applied to national constitutional law, both of which have a strong transnational dimension and are supported by normative elements that are formed through transnational processes. This concept can also be applied to characterize and examine an emergent, conclusively transnational legal order, in which legal formation occurs in more spontaneous and contingent fashion. In each domain, constitutional norms produce an underlying inclusionary structure for distinct political functions in society, and transnational constitutional law is defined, most essentially, by its ability to support the relative autonomy of political exchanges and political interactions.
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