Transnational Legal Theory

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Transnational law between modernity and post-

modernity

Matej Avbelj

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article: Matej
 Matej Avbelj (2017): Transnational law between modernity and post-
modernity, Transnational
Transnational Legal Theory, DOI: 10.1080/20414005
10.1080/20414005.2016.1275559
.2016.1275559

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TRANSNATIONAL LEGAL THEORY, 2017

http://dx.doi.org/10.1080/20414005.2016.1275559

Transnational law between modernity and post-

modernity
Matej Avbelj
PhD EUI, LL.M NYU, Associate Professor of European Law, School of Law, Graduate School of 
Government
Government and European
European Studie
Studies,
s, Kranj, Slovenia

ABSTRACT
Law is both an agent of change, and the object of social change. This article
examines the interplay between these two positions specifically with a view
to the emergence of transnational law as an outcome of the transition from
modernity to post-modernity. The article proceeds to analyse the position of 

the law as   agens

introduction, the  article
of the first
post-modern social
outlines the condition
features in five steps.
of modernity and After the
contrasts
them, secondly, with those of post-modernity. This general discussion is then,
thirdly, contextualised in the field of law, whereby the concept of modern law
is flesh
leshed
ed ou
outt. Th
Thee terr
errai
ain
n is then
then,, fou
fourthl
rthly,
y, se
sett for a dedeta
tail
iled
ed map
map of 
transnational law, which reveals that the legal landscape has been changed
dramatically in the last few decades. The modern law has been giving way to
post-modern law. The article concludes by describing and explaining how this
pro
roce
cess
ss ha
hass bebeen
en un unffol
oldi
din
ng amid
amidst
st a co commplplex
ex sub
subje
ject
ctiv
ive
e-ob
-obje
ject
ctiv
ive
e
relationship between modernity, post-modernity and transnational law.

KEYWORDS  Modernity; post-modernity; transnational law; dual role of the law

1. The process of transition from modernity to post-modernity

We live in transitional times. This might as well be a truism, something that
every generation experiences, usually out of dissatisfaction with its contem-
porary social affairs. The world as such, and the world of law in particular,
is neve
neverr at a stan
stand-
d-st
stil
ill,
l, bu
butt is alwa
alwaysys movi
movingng from
from on
onee ch
chal
alle
leng
ngee to
anothe
ano ther.
r. Howeve
However, r, this
this time
time around
around,, the transit
transition
ion appear
appearss to cut much
much
deeper and is much more fundamental. It even affects the meta-level, the
level of the overall epistemology through which we get to know and construct
the legal world around us. The world of law has been changing so much that
the old paradigm,1 understood as a comprehensive set of epistemological
tools, concepts and theories, has become inadequate even to describe this
worl
wo rld
d as it is.
is. Newl
Newlyy emer
emergi
ging
ng soci
social
al prac
practi
tice
cess ha
have
ve brou
broughghtt th
thee ol
old
d
 CONTACT   Matej Avbelj   matej.avbelj@fds.si   Graduate School of Government and European
Studies, Predoslje 39, Kranj 4000, Slovenia
1
Thomas Kuhn, The
Kuhn,  The Structure of Scientific Revolutions (University
Revolutions  (University of Chicago Press, 1962).
© 2017 Informa UK Limited, trading as Taylor & Francis Group

2 M . AV B E L J

epistemology to the breaking point; to the point at which the old epistemic
resources can no longer be reformed to a certain new, more suitable degree,
and at which what is needed is, at least partly, a new epistemology in kind.
The old era has been called modernity, the newly emerging one is post-
modernity.
This
Th is ar
arti
ticl
clee anal
analys
yses
es the
the rela
relati
tion
onsh
ship
ip,, rare
rarelyly expl
explor
ored
ed,, be
betw
twee
een
n th
thee
phenomenon of transnational law and the social transition from modernity 
to post-modernity. It argues that law has been both an object and a subject
of th
thee pr
proc
ocesesss of tran
transi
siti
tion
on from
from momode
dern
rnitityy to po
post-
st-mo
mode
dern
rnit
ity.
y. As an
obje
ob ject
ct of th
this
is proc
proces
ess,
s, law
law ha
hass been
been im
impo
porta
rtantntly
ly tr
tran
ansf
sfor
orme
med d by it. The
The
outcome of the transformation has been transnational law, which has many 
characteristics of a post-modern concept of law. However, transnational law 
has also acted as a subject of the process of transition from modernity to
post-modernity. It has been its  agens, which has contributed to and strength-
ened the post-modern social condition.
This argument is developed in five steps. The article first outlines the fea-
tures of modernity and contrasts them, secondly, with those of post-moder-
nity. This general discussion is then, thirdly, contextualised in the field of 
law, whereby the concept of modern law is fleshed out. The terrain is then,
fourthly, set for a detailed map of transnational law, which reveals that the
le
lega
gall la
land
ndsc
scap
apee has
has be
been
en chan
change
ged
d dram
dramat
atic
ical
ally
ly in th
thee la
last
st few
few deca
decade
des.
s.
Modern law has been giving way to post-modern law. The article concludes
by describing and explaining how this process has been unfolding amidst a
complex subjective-objective relationship between modernity, post-moder-
nity and transnational law.

2. The concept of modernity

Modernity and post-modernity are antipodes.2 To comprehend the emerging 
postmodern condition, it is therefore necessary to understand modernity first.
However, modernity is an elusive, multifaceted concept whose meaning is not
easy to pin down. The views on modernity, which of its particular features
ought to be emphasised, how and why, vary among authors. A selection
among different approaches is therefore inevitable. The point of departure
 of this article is Edgeworth’s analytical distinction between modernisation
as a process; modernism as a mindset; and modernity as time and space in
which
whic h  the aforementioned modern processes and modern mindset are situ-
ated.3 Accor
Accordingl
dingly,
y, modernity
modernity shall be defined
defined as a tempo
temporal
ral and spatial
spatial cat-
egory in which the processes of modernisation —technological, economic and
2
For a recent discussion on modernity and post-modernity see, Sionaidh Douglas-Scott,  Law after Mod-
ernity  (Hart
  (Hart Publishing, 2013).
3
See Brendan Edgeworth, Law,
Edgeworth,  Law, Modernity, Postmodernity  (Ashgate,
  (Ashgate, 2003) 6, who borrows this approach
from Marshall Berman, All
Berman, All That Is Solid Melts into Air: The Experience of Modernity  (Simon
Modernity  (Simon Schuster, 1982).

 TRANSNATIONAL
 TRANSNA TIONAL LEGAL THEORY 3

social—take place following and contributing to the modernist mindset. 4 In

what follows, the main characteristics of the three building blocks of moder-
nity —time and space (taken together), processes and mindset —will be sche-
matically outlined.
From the present perspective it is, of course, impossible to identify when
exactly modernity began. Whatever the choice of time, accurate or inaccurate,
it will be a reconstruction of modernity ’s origin in the light of what we know at
present. With that in mind, it can be argued that what is presently understood
as modernity, that is our modernity,5 emerges in the seventeenth century. The
point of rupture between the old and the new, repr rep resented by modernity, is
conventionally located in the Peace of Westphalia. 6 This has given birth to
political modernity with the sovereign nation state as its main product and
actor. The state has also determined the spatial domain of modernity. In pol-
itical terms modernity assumes, creates and takes place in the carefully deli-
neat
ne ated
ed teterr
rrit
itor
orie
iess of natio
nation
n stat
states
es on whwhic
ich
h th
thee la
latt
tter
er cl
clai
aim
m to exexer
ercicise
se
ultimate and absolute legal and political
political  authority, to the exclusion of any 
other authority external to that territory.7 In spatial-temporal terms, moder-
nity is thus a closely territorially bound phenomenon, limited to the self-con-
tained nation state whose origins date back to the seventeenth century.
The process of modernisation consequently involv es historically distinct
changes in the economy and society inside the state.8 In economic terms,
modernisation goes hand in hand with the rise and evolution of capitalism,
involving industrialisation and the protection of private property, with the
market at its economic heart. The market and its constitutive relationships
betw
be twee
eenn th
thee fact
factor
orss of prod
produc
ucti
tion
on,, labo
labour
ur and
and capi
capita
tall in pa
part
rtic
icul
ular
ar,, are
are
subject to regulation by the state. This regulatory control and consequent
involvement of the state in the economy is originally limited. However, it
grows continuously, though unevenly, in different countries, so that a less
 intrusive model of a liberal state is gradually replaced with the welfare state,
state ,
which is considered the high point of economic and social modernisation.9
The new economic system of capitalism, which replaced feudalism, has natu-
rally also converted the character of the societies.

Traditional
status communities,
to the owner attached
of the land, to the land and
were incrementally bound in faith
disintegrated. Theasindivid-
well as
uals, rather than collectives, emerged as subjects, endowed with a status of 

4
See Edgeworth (n 3) 6, who speaks of   ‘the cluster of visions and ideas’.
5
For the importance of   ‘our’  modernity, as the notion of modern, representing a break from the old, has
been used throughout history, starting with the fifth century, see Jürgen Habermas,   ‘Modernity: An
Unfinished Project’  in M.P. d’Entrèves and S. Benhabib (eds), Habermas
(eds),  Habermas and
 and the Unfinished Project of 
Modernity (MIT Press, 1997) 5.
6
See Douglas-Scott (n 2) 15.
7
Matej Avbelj,   ‘Theorizing Sovereignty and European Integration’  (2014) 27 Ratio
27  Ratio Juris 344.
Juris  344.
8
See Edgeworth (n 3) 52.
9

Ibid , 53.

4 M . AV B E L J

citizens of states and therefore bearers of rights and duties. Economically they 

we
werere in
inte
tegr
grat
characterised ated
ed
by ainto
intechnology
to what
what late
later
ofrmass 
beca
became
mass  me known
known reliant
production
production as th
thee on
Fo
Ford
ardis
istt econ
strictecdivision
onom
omy,y,
of labour in huge industrial complexes. 10 This new type of economy required
a new type of economic actor. Farmers increasingly became workers, which
spurred the process of urbanisation, growth of cities and an urban style of 
life. All of this eventually resulted in the demise of the social world of tra-
ditions and customs, indeed the overall  forma mentis   predating modernity 
was subject to a dramatic change.11
What em emerged were societies and individuals with a very different social
imaginary,12 with a new, modern mindset. This mindset was an upshot of 
the Renaissance and Enlightenment. It is a mindset which postulates reason
(ratio) as a measure and motor of all things. It is with the power of reason,
which is universal and distinctive of individuals as human beings, that mod-
ernity harbours the conviction that indi viduals
 viduals and humanity as such can
make the world over to their own design.13 Thanks to reason, modern indi-
 viduals were to be the masters of their fate; the rulers of the world which is,
on that basis, only bound to progress. But the paramount value of modernity,
and also its measure of progress, is order.
This is understandable as modernity, especially in the political sense, was a
reaction against the disordered past, most imminently against the atrocities of 
 the Thirty Years  War, and indeed against the overall instability and precar-
iousness of the pre-modern social order. The mindset of modernity is there-
fore essentially monist. It privileges uniformity and unity over diversity and
plurality for a reason: to ensure order through the reduction of conflicts
which are rooted in differences. The best means for achieving this objective
is the sovereign state with its unitary, hierarchical organisational framework,
central
cen tralise
ised
d govern
governmen
ment,
t, monopo
monopoly ly on violen
violence
ce ove
overr a del
delimi
imited
ted ter
territ
ritory 
ory 
14
inhabited by as culturally homogeneous pe people as possible. This modern
state should establish order which is just.15 The core values of modernity,
the normative fabric of the modern mindset are therefore: peace, justice,
equality, liberty, coherence, predictability, stability, universality, unity and,
of course, certainty.

10
Ibid , 44.
11
See also Habermas (n 5) 42–4.
12
Charles Taylor, Modern
Taylor,  Modern Social Imaginaries (Duke
Imaginaries  (Duke University Press, 2003).
13
Neil Walker, in Matej Avbelj and Jan Komárek (eds),   ‘Four Visions of Constitutional Pluralism’  (2008) 1
European Journal of Legal Studies  325.
14
Preston King, The
King, The Ideology of Order  (George
 (George Allen & Unwin Ltd, 1974) 274 who submits that yearning for
unitary order is a sentiment that can be traced back to antique, but which has reached its heyday in the
15 medieval
States are times after
required to the Thirty
respect theYears War, especially
constraints of justiceinand
thetowritings of Hobbes.
secure justice, see Christopher W. Morris,
 An Essay on the Modern State (Cambridge
State  (Cambridge University Press, 1998) 164.

 TRANSNATIONAL
 TRANSNA TIONAL LEGAL THEORY 5

As such modernity was indeed an a n ambitious and revolutionary project, but

one with an inbuilt contradiction.16 As is powerfully explained by Santos,
modernity consists of two conflicting projects: the project of emancipation
and the project of regulation. Modernity is about the desire to free humanity 
from the irrational and oppressive bonds of the past by creating a new and
hopefully more just order. Order is always a form of regulation destined to
ensure the stability of a hence achieved emancipation. And yet any modern
stage of regulation is always merely temporary. The emancipatory drive for
progress, as an utopian dimension of modernity,17 w ill ill quickly require a
new emancipation to be secured in a new regulation. 18 Modernity   is is thus
 thus at
oncee a pro
onc projec
jectt of destru
destructi
ctive
ve creati
creation
on and cre
creati
ative
ve des
destru
truction..19 It is a
ction
process that features a constant exchange of unlocking and locking forces
in humanity. According to Santos, the unlocking or emancipatory factors
are: arts, science   and law, whereas the regulatory factors are: state, market
and community.20 This tension between emancipation and regulation was
 productive for a long time, resulting in concrete achievements promised by 
modernity.
However, since the 1960s an increasing number of critical voices have
started raising concerns that modernity is failing to realise its values. Human-
ity continued to linger in the world characterised by disorder, incoherence,
lack of predictability, instability and fluidity, inequality, particularity, frag-
mentation and uncertainty.21 Contrary to the expectations of the moderns,
the cleavage between the aspirations of modernity and social practices dee-
pene
pe ned,
d, as
assi
sist
sted
ed by the
the ho
horr
rror
orss of the
the tw
two o   g reat
r eat wars
wars of ththee twen
twenti
tiet
eth
h
22
century. As a result, a crisis of representation erupted to gradually under-
mine
mi ne the afafor
orem
emen
enti
tion
oned
ed main
main momode dern
rnis
istt beli
beliefef th
that
at we can
can mamake
ke the
world over to our own design and that, in so doing, we are almost condemned
to progress. Hope and progress, the two constitutive normative elements of 
modernity, have gradually given way to anxiety and fear of failure. Modernity 
hass th
ha thus
us wi
witn
tnes
esse
sed
d a sesent
ntim
imen
enta
tall turn
turn dodownwnwa ward
rd:: from
from opopti
timi
mism
sm to
pessimism.

16
Boaventura de Sousa Santos, Toward
Santos,  Toward a New Legal Common Sense. Law, Globalization and Emancipation
(Butterworths, 2002) 4. For a discussion of even earlier and much more damning critiques of modernity,
especially by Nietzsche, but also by Weber. See, David Harvey,  The Condition of Postmodernity  (Black-   (Black-
well, 1989) 15.
17
See Santos (n 16) 3.
18
Ibid . Santos is drawing on the three logics of rationality as identified by Weber:  ‘ the aesthetic-exp
aesthetic-expressive
ressive
rationality of the arts and literature; the cognitive-instrumental rationality of science and technology:
and the moral-practical rationality of ethics and the rule of law’.
19
Malcolm
Malc olm Bradbury
Bradbury and James
James McFa
McFarlane
rlane,,   Modern
Modernism
ism:: A Gui
Guide
de to Europe
European
an LitLitera
eratur
turee 189
18900–1930
(Penguin Books, 1991) 446.
20

21 See
Ibid  Santos (n 16) 3.
22
Gary Minda, Postmodern
Minda, Postmodern Legal Movements, Law and Jurisprudence at Century ’’ s  End  (New
 (New York University
Press,
Pres s, 1995)
1995) 62, desc
describin
ribing
g the incapacity
incapacity   ‘of artistic,
artistic, philo
philosoph
sophical
ical,, liter
literary,
ary, socia
sociall and scientifi
scientificc
languages to control, predict, and describe the social and physical worlds’.

6 M . AV B E L J

Consequently, modernity was said to be in crisis. However, the extent and

consequenc
conse quences
es of the apparent crisis of modernity
modernity have been subject
subject to differ-
differ-
ent interpretations. There are author
authorss who insist that nothing has changed
and that all is still business as usual. 23 Then there are those, including Haber-
mas, who believe that the practical shortcomings of modernity are not a sign
of its demise, but proof that the project of modernity is still unfinished. 24
There is also a third group of authors who recognise the depth and breadth
of the crises of modernity, but insist that modernity continues to   ad adapt
apt to
25
 them andsuch
authors, has,asinBeck 
so doing, entered
,  thus claim a more
that advanced,
humanity later stage.
is currently These
going through
its second modernity.26 Finally, there is a group of thinkers who have relin-
quished modernity and declared the arrival of a new era of post-modernity.

3. The post-modern condition

Apparently there is thus no consensus on the exact character of the era that we
live in. To make things worse, even among the advocates of post-modernity 
there is little unanimity on what post-modernity in theoretical and practical
terms actually ent
entails.
ails. Hebdige has thus listed over 40 different meanings of 
post-modernity.27 In defining post-modernity we shall use the
t he same compara-
tors as in our discussion of modernity: time and space, process and mindset.
Accordingly, post-modernity is a temporal and spatial category in which the
processes of post-modernisation—technological, economic and social—take
place following and contributing to the postmodernist mindset.28
Post-modernity begins in the second half of the twen
twe ntieth century. As in
the case of modernity, that is a contested estimation. 29 However, the fact
remains that, several years after WWII, the West experienced a profound
economic transformation which triggered a sea-change in cultural, political,
30 31
legal and ind
legal indeed
eed all social
social practices.. Capitalism entered its late stage.
practices
The Fordist economy turned out to be too rigid and was gradually pushed
out by more flexible techniques of production. 32 Massive factories were com-
plemented and replaced by smaller and geographically dispersed production
23
Alex Callinicos, Against
Callinicos,  Against Postmodernism: A Marxist Critique  (Polity, 1989).
24
See, for example, Habermas (n 5) 38.
25
See Douglas-Scott (n 2) 14 speaks of   ‘after modernity’.
26
Second modernity is defined by global ecological and economic crises, widening transnational inequal-
ities, individualisation,
individualisation, precarious forms of paid work and the challenges of cultural, political and military
globalisa
glob alisation.
tion. See Ulrich
Ulrich Beck,
Beck,Pow
Power
er in the Glo
Global
bal Age
Age:: A New Glo
Global
bal Politi
Political
cal Econom
Economy 
y (Po
(Polit
lity,
y, 20
2005)
05) 10
106
6 ff.
27
Dick Hebdige, Hiding
Hebdige,  Hiding in the Light: On Images and Things (Routledge,
Things  (Routledge, 1988) 181 –2.
28

29 See
Ibid , Edgeworth (n 3)for
19, noting that 6. Toynbee postmodernity started already in 1875.
30
Harvey (n 16) in preface sees 1972 as a turning point.
31
Mary Klages,   ‘Postmodernism’, online: <http://www.b
<http://www.bdavetian.com/
davetian.com/Postmodernism
Postmodernism.html
.html>
> (last visited
January 8, 2016), referring to Frederic Jameson. See, in particular his, Postmodernism
his,  Postmodernism or the Cultural 
Logicc of Late Capitalism
Logi Capitalism  (Duke University Press, 1991).
32
What Harvey (n 16) 124 has called flexible regime of accumulation.

 TRANSNATIONAL
 TRANSNA TIONAL LEGAL THEORY 7

units. Full-time jobs, backed by strong industrial relations, gave way to more
flexible types of employment. Workers became contractors. The cost of labour
was reduced and the balance between labour and capital was tipped in favour
 was reduced a
reduced  andnd the balance between labour and capital was tipped in favour
33
of the latter. In short, we witnessed a transition from the so-called organised
organis ed
to disorganised capitalism, from Fordist economy to flexible accumulation, 34
with major transformations 
transformations   in the
in  the production process, status of labour(ers)
and the conception of space.35
Underr th
Unde thee infl
influe
uenc
ncee of the
the proc
proces
esss of gl
glob
obalalis
isat
atio
ion,
n, spac
spacee has
has sisimu
mul-
l-
taneou
taneously
sly shrunk
shrunk and widene
widened.d. Techno
Technolog
logica
icall progre
progressss has brobrough
ughtt the
most distant places closer and in so doing made the world at large a much
more
mo re ac
acce
cess
ssib
ible
le plac
place.
e. Glob
Global
al has
has beco
become
me loloca
call and
and loloca
call ha
hass be
beco
come
me
global. The immediate consequence of this has been a declining functional
import
imp ortanc
ancee of nati
nationa
onall fro
fronti
ntiers
ers,, which
which have
have bot
bothh entail
entailed
ed and sig signal
nalled
led
the weakening of the role of the nation state. States were economically and
politically driven to form regional integrations. They have gradually lost the
monopoly over their territories, but at the same time the rol rolee of territory,
has changed as well as, perhaps, its importance diminished. 36 A number of 
non-territorial, functional entities have emerged with powers and competen-
cies matching and sometimes surpassing those of states. In spatial terms post-
modernity has thus sparked the process of, first, regionalisation, growing into
de-nationalisation and ultimately into de-territorialisation.
In socio-
socio-cul
cultur
tural
al terms,
terms, these
these econom
economic ic cha
chan nges
ges resu
result
lted
ed in a soci
societ
ety 
y 
characterised by mass culture and mediatisation.37 The cultural products of 
post-modernity are marked   by   by   fragmentation, diffusion and emphasis on
surface rather than substance.38 For Bauman the changes in society were so
comprehe
compre hensive
nsive that one is entitled
entitled to speak of   ‘the systemness of postmodern
society ’.39 He emphasises not only the changes in economic production, but in
particular in consumption. The consumer has replaced the worker as a central
figure of society and the ideology of co consumption,   ‘seduction through signs,
images   and the the prom
promisisee of plen ty ’40 bec
plenty  omess the   ‘inte
become integr
grat
ativ
ivee bond
bond of 
society ’41 as well as the dominant strategy of social control. 42

33
See Edgeworth (n 3) 45 ff.
34
See Harvey (n 16) 177.
35
Ibid , 176–9.
36
See, for example, Saskia Sassen,  ‘ Neither Global nor National: Novel Assemblages of Territory, Authority
and Rights’  2008 1(1–2)
2) Ethics
 Ethics and Global Politics 61;
Politics  61; Patrick Glenn,   ‘Transnational Legal Thought: Plato,
Europe and Beyond’  in Maduro, Tuori, Sankari (eds),  Transnational Law, Rethinking European Law and 
’
Legal Thinking (Cambridge
Thinking
ritorialising  (Cambridge University Press, 2014), 66 refers to the debate on   ‘despatialization ,   ‘deter-
’,   ‘a-territoriality’.
37
Jack M. Balki
Balkin, n,   ‘What Is a Post-modern Constitutionalism’  (1992) 90 Michigan
90  Michigan Law Review  1968.
  1968.
38
Ibid. Balkin
Ibid.  Balkin quotes our renewed interest in natural and organic foods as an example, which, however,
‘when viewed more closely, turn out to be high-tech, mediatized or commodified ’.
39
Zygmunt Bauman, Intimations
Bauman,  Intimations of Postmodernity  (Routledge,
  (Routledge, 1992) 52–3.
40
Edgeworth (n 3) 49.
41
Ibid .
42
Ibid .

 
8 M . AV B E L J

All of this has contributed to a specific postmodern mindset, which has

developed as a negation of the main traits of the modern mindset: reason,
progress and order. Rather than celebrating reason, post-modernity stresses
its darker side. Reason i
Reason  iss now not only a means of liberation, but can also be
a tool of enslavement.43 The loss of faith in reason translates into decline of 
scientific authority. The allegedly objective and neutral character of scientific
findings is question
questioned ed and defied. As a result, belief in progress is decried as
utopian thinking.44 The monistic mindset of modernity, which has privi-
leged order, is now replaced by a postmodern mindset. The latter discloses,
often by way of celebration, a lack of order in forms of fragmentation, plur-
ality
ality and the like.like. Totali
Totalisin
sing,
g, univer
universal
salisi
ising
ng and uni unifor
formity
mity-d-driv
riven
en ten
ten--
dencies, aversion to diversity, which are typical of modernity are replaced
by a postm
postmod oder
ernn affi
affirm
rmatatio
ion
n of diff
differ
eren
ence
cess an
andd ththee ethi
ethica
call co
conc
ncer
ernn for
for
45
‘the other’.

In general, the postmodern mindset is a deconstructive one. It espouses the

methodology, which rejects the modernist idea of a master narrative, of a
meta
me ta-f
-fra
rame
mewo
workrk wh
whicich
h ca
cann enenco
comp
mpas asss al
alll th
thee ph
phen
enomomenenaa an
andd ex
expl
plai
ain
n
them in their totality, with accompanying claims to truth and objective knowl-
edge. As famously declared by by Lyotard, postmodernity is about the   ‘incredu-
lity
lity toward
toward metmeta-n
a-narr
arratives’.46 Th
atives This
is ph
phililos
osop
ophi
hica
call st
stan
ance
ce ha
hass sisinc
ncee be
been
en
reinforced by the process of globalisation, which has brought about an u an  unpre-
npre-
47
cedented mobility in people, factors of production and information that
have revealed the real scope of diversity, indeed disorder, in the world. Sim-
ultaneously power  lato sensu  has been dispersed, leading to the creation of 
multip
mul tiple
le cen
centre
tress of author
authority,
ity, each
each inc
increa
reasin
singly
gly cap
capabl
ablee of con
contro
trolli
lling
ng its

own sphere
quently, it isand
nowcountering the attempts
more difficult than everoftodomination by others.
create a master Conse-
narrative and
to sustain its domination over the whole social world across the globe. In
the twenty-first century it has become clear that no one social entity or insti-
tution is powerful enough to create an impression of controlling the society ’s
imaginative
imagin ative framework
framework in full.
Consequently, postmodernists argue that the world and its phenomena can
onlyy be acc
onl access
essed
ed from
from the par
partic
ticula
ular,
r, and theref
therefore
ore sub
subjec
jective
tively
ly limite
limited,
d,

43
Ibid , 32.
44
 ‘ ’
Ibid 
, 38. According
Transnational Law, to Alexander
Rethinking Somek, Law
European The and
Cosmopolitan Constitution
Legal Thinking (Cambridge
Thinking  in Maduro,
 (Cambridge Tuori,
University Sankari
Press, 2014)(eds),
102,
the very ascent of human rights   ‘marks the advent of post-utopian vision of human well-being ’,
‘marking the depletion of utopian energies and the widespread intellec
intellectual
tual fatigue with which societies
converge on some attractive features of liberalism’, referring to Samuel Moyn, The
Moyn,  The Last Utopia: Human
Rights in History 
History  (Harvard
  (Harvard University Press, 2010).
45
Edgeworth (n 3) 51.
46
Jean-François Lyotard, The
Lyotard, The Postmodern Condition: A Report on Knowledge (University
Knowledge  (University of Minnesota Press,
 1984) 2.
47
See, for example, Anthony Giddens, The
Giddens,  The Consequences of Modernity  (Stanford
 (Stanford University Press, 1990) 62
who has spoken of a unique time-space alienation as a result of globalisation.

 TRANSNATIONAL
 TRANSNA TIONAL LEGAL THEORY 9

perspectives that can make no valid claims to the understanding and explain-
ing of the whole. Postmodernism, as claimed by Klages, therefore favours
mini-n
min i-narr
arrati
atives
ves which
which are always
always sit
situat
uation
ional,
al, provis
provision
ional,
al, contin
conting 
g ent
ent and
temporary, making no claim to universality, truth, reason or stability.48 Post-
modernism stresses the contingency of anything that we know. As a result, it
has been claimed that post-modernity comes with no foundations, wh
foundations, which ich has
49
prompted many to identify it with relativism and/or even nihilism.
This, however, is an unfairly waged charge against post-modernity. Post-
modernity does not claim that there are no foundations, rather that there
are too many. Each one is situated and premised upon its own distinctive
episteme, the world of meaning, without an arbiter with an objective and
universal access to the Archimedean point on the basis of which differences
across the plurality of social sites, indeed worlds, could be reconciled so to
fo
form
rm a cocohe
here
rent
nt an
andd ther
theref
efor
oree orde
ordere
red
d not
not ju
just
st th
theo
eory
ry,, bu
butt al
also
so real
realit
ity.
y.
Post-modernity should therefore be distinguished from moral or value rela-
tivism. It is correct to say that values are relative to the social site from
which they stem, but this is neither to mean that anything goes nor that
meanin
mea ningfu
gfull com
commun
munica
icatio
tion,
n, ind
indeed
eed dialog
dialogue,
ue, is not possib
possible
le betwee
betweenn the
different sites.
The transition described above, from modernity to post-modernity has
thus been a product of the profound changes in the world’s social circum-
stances caused by the evolution of capitalism and the process of globalisation.
It is not possible for such a transition to have left the law entirely unaffected.
To the contrary, in what follows it will be argued that the law of modernity —
the modern concept of law —has gradually been giving way to new forms of 
post-modern law, epitomised by transnational law.

4. The modern concept of law

By the notion of modern law,50 I mean law as it has been practiced and theor-
etical
etically
ly gro
ground
undeded in   the geogra
geographi
phical
cal and politi
political
cal spa
space
ce con
conven
ventio
tional
nally 
ly 
51
know
kn ownn as th West.. Mo
thee West Mode
dern
rn law
law has
has tw
two
o de
defi
fini
ning
ng feat
featur
ures
es.. Th
Thee fi
firs
rstt
resides in its connection to the state. The state has long been considered a
 main, if not the exclusive source and operating theatre of law. Its three

48
See Klages (n 31).
49
See also, Douglas-Scott (n 2) 17 who argues that in legal theory much of postmodernity ’s message   ‘is
nihilistic or even negative’.
50
Of course, as Douglas-Scott (n 2) 18 –21 powerfully argues there is no shared conception of the modern
concept of law. Shediscusses five modern visions of law: Conceptual postivism (Austin), Interpretative
positivism (Weber, HLA Hart), Legal Realism, Habermas’  and Marxist’s vision of law.
51
This discussion draws on Matej Avbelj,   ‘The Case of Mr Kadi and the Modern Concept of Law ’  in Matej
Avbelj, Fillipo Fontanelli, Giuseppe Martinico (eds), Kadi
(eds),  Kadi on Trial: A Multifaceted Analysis of the Kadi Judg-
ment  (Routledge,
  (Routledge, 2014) 49–62.

10 M. A V B E LJ

nicely delineated branches of power produce constitutional law, legislation,

administrative law and judicial decisions respectively. As the essential prop-
erty of a state is sovereignty —according to which the state has the ultimate
legal and political authority over a clearly delimited territory —modern law 
has conventionally been understood as the supreme and exclusive law of 
the land, of a given territorial entity.
Othe
Ot herr nonon-
n-ststat
atis
istt sour
source cess and
and thertheref efor
oree bo
bodidies
es of la law
w ha haveve al alwa
waysys
exis
ex iste
ted,
d, momostst nota
notabl blyy inte
intern
rnat
atioiona
nall law,
law, bu butt ththee lalatt
tter
er’s   ‘real’, rathrather
er
than
tha n state
state-d
-der
eriv
ived
ed le lega
gall na
natu
ture
re,, has
has alwa
always ys be
been
en didisp
sput
uted
ed in th theo
eoryry and
and
practice.52 The centrality of the state to the modern concept of law has
been so evide
evident,nt, that it has long gone not just unstated, but also fairly 
uncontested.53 Co Concnceieivi
ving
ng of the the mo mode dern
rn conc
concep eptt of la laww ththusus memeanant,t,
almost unexceptionally, thinking of the law within the state: a state law.
Some
So me th theo
eori
rist
sts,
s, in pa parrticu
ticula
larr Ke
Kels lsen
en,, have
have even
even go gonene as far far as equaequatiting 
ng 
54
the state with the law.
The second defining feature of the modern concept of law is its dual
nature
nat ure:: for
formal
mal and sub substa
stanti
ntive.
ve. The formalformal dim dimens
ension
ion of law sta stands
nds for
th
thee hi
hier
erar
arch
chic
ical
al le
lega
gall frame
frame,, indi
indisp spen
ensasabl
blee to anyany le lega
gall orde
order,r, whwhererea
eass
th
thee su
subs
bsta
tant
ntiv
ivee dime
dimens nsio
ionn ha
hass come
come to be id iden
entif
tifie
iedd with
with huma
human n ririgh
ghtsts
prot
pr otec
ecti
tion
on.. Th
Thee idea
idea of hi hier
erar
archchyy is bothboth a pr prer
ereq
equi
uisi
site
te for
for th thee le
lega
gall
order’s autonomy as well as for its ordered character, which is facilitated
throug
thr ough h the ordorderi
ering
ng princi
principleple follow
followinging whi
whichch the hig higher
her nornorm m invinvali
ali--
dates the lower norm. Hierarchy is a guarantee of certainty, coherence—
of th
thee most
most high
highly ly vavalu
lueded mo
mode dern rnis
istt id
idea ls—an
eals andd hehencncee of mo mode dern
rn lalaw.
w.
Butt th
Bu thee exexpe
peri
rien
ence
ce le lead
adiningg up to and and duriduring
ng WWII
WWII show showss th that
at a pu purere
fo
form
rmal al law,
law, no ma matt tter
er how
how orde
ordere red,
d, is no nott enenou
oughgh for
for ththee rurule
le of la law 
w 
to be pr prop
oper
erly
ly so callcalled
ed.. Th
Thee latte
latterr requ
requirires
es ththee fo
form
rmalal le
lega
gall orde
orderr alalso
so
to be just.55 Th Thisis shou
should ld be ac achi
hiev
eved
ed th thro
rougughh ththee esta
establblis
ishm
hmen entt of 
 human rights protection, which is assumed in the modernist tradition to
be universal and equal.
Just as the transition from modernity to post-modernity at large has social
roots, so does emerging post-modernity in the field of law. This has been trig-
gered by the rise of new actual and putative authorities in and beyond the state
whose social practices have gradually produced a whole new body of law:
transnational law.

52
HLA Hart, The
Hart, The Concept of Law  (Oxford
 (Oxford University Press, 1994) 229, arguing that international law is not a
legal system, but merely a set of rules.
53
The movement of legal pluralism has been a notable exception: John Griffiths,  ‘ What Is Legal Pluralism’
(1986) 24 Journal
24  Journal of Legal Pluralism and Unofficial Law   1.
1.
54
Hans Kelsen, Pure
Kelsen,  Pure Theory of Law  (Gloucester,
  (Gloucester, 1989).
55
Gustav Radbruch,  ‘ Gesetzliche
Gesetzlichess Unrecht und übergesetzliches Recht’ (1946)
 (1946) Süddeutsche
 Süddeutsche Juristenzeitung

105.

 TRANSNATIONAL
 TRANSNAT IONAL LEGAL THEORY 11

5. The concept of transnational law

The concept of transnational law, as a law in-between, 56 is elusive.57 It was

first used as a label in the 1930s by Max Gutzwiller.58 Conceptually it was
endowed with more substance in 1956 by Philip Jessup. He has defined trans-
al law   ‘to include all law which regulates actions or events that trans-
national
nation
ce
cend
nd nati
nation
onal
al fron
frontie
tiers
rs.. Bo
Both
th pu
publblic
ic and
and priv
privat
atee in
inte
tern
rnat
atio
iona
nall la
law
w are
are
included, as well as other rules which do not wholly fit into such standard cat-
egories’.59 This is obviously a very broad, perhaps even an over-inclusive defi-
nition. Not only is any law beyond the state considered transnational law, but
the latter also includes   ‘other rules’  which apparently do not necessarily need
to be legal. This poses a problem of utility of a concept that is so broad as to
lose any distinctiveness.60 It also raises a more acute objection as to what
makes transnational law legal in the first place. The two critiques, especially 
if taken together, are fatal. The first deprives us of the capacity to define trans-
national law  in
 in abstracto, which, in turn makes it impossible to map out actual
phenomena as transnational law in practice.
The legal character of transnational law depends on the concept of law one
subscribes to.61 This article joins those who agree that transnational law is its
own, autonomous and separate field of law.62 Therefore, and contrary to what
is typically attempted, transnational law cannot be subsumed under either
inte
intern
rnat
atio
iona
nall law
law or comp
compararat
ativ
ivee law
law witho
without
ut ch
chan
angi
ging
ng ththee two
two bebeyo
yond
nd
63
 recognition. Perhaps the best way of conceptualising transnational law is
by intr
tro
oducing a distinctio
tion between its broader and a narrower

56
See Kaarlo Tuori,   ‘Transnational Law: On Legal Hybrids and Perspectivism’  in Miguel Maduro, Kaarlo
Tuori, Suvi Sankari (eds), Transnational
(eds),  Transnational Law: Rethinking European Law and Legal Thinking (Cambridge
Thinking  (Cambridge
University Press, 2014) 11; Peer Zumbansen,   ‘Transnational Legal Pluralism’  (2010) 1(2) Transnational 
1(2)  Transnational 
Legal Theory  141;
 141; Neil Walker,  ‘ Beyond Boundary Disputes and Basic Grids: Mapping the Global Disorder
of Normative Orders’  (2008) 6 International
6  International Journal of Constitutional Law  6;
Law  6; Harold Hongju Koh,   ‘Why
Transnational Law Matters’  (2005–2006) 24(4) Penn
24(4)  Penn State International Law Review  745.
  745.
57
Scott has identified three conceptions of transnational law. Craig Scott,   ‘“Transnational Law”  as Proto-
Concept: Three Conceptions’  (2009) 10(7) German
10(7)  German Law Journal  859.
  859.
58
Christian Tietje, Karsten Nowrot,   ‘Laying Conceptual Ghosts of the Past to Rest: The Rise of Philip
’
C. Jessup s Transnational Law in the Regulatory Governance of the International Economic System, in
Tietje, Brouder, Nowrot (eds),   ‘Philip C. Jessup’s Transnational Law Revisited—On the Occasion of 
the 50th Anniv
Anniversar
ersaryy of its Publication
Publication’   (2006)
(2006) 50  Halle-Wi
 Halle-Wittenb
ttenberg:
erg: Beitr
Beiträge
äge zum Transn
Transnatio
ationalen
nalen
Wirtschaftsrecht  27.
 27.
59
Philip C. Jessup, Transnational
Jessup,  Transnational Law  (Yale
  (Yale University Press, 1956) 3.
60
For a critique see Reza Dibadj,  ‘ Panglossian Transnationalism’ (2008) 44 Stanford
44 Stanford Journal of International 
Law  253.
  253.
61
For a discussion of the concept of law in transnational environment see, Roger Cotterrell,  ‘ Transnational
Communities and the Concept of Law’  (2008) 21(1) Ratio
21(1)  Ratio Juris 1;
Juris  1; Benedict Kingsbury,   ‘The Concept of 
“Law”  in Global Administrative Law’  (2009) 20(1) European
20(1)  European Journal of International Law  23;
  23; and Alexan-
der Somek,   ‘The Concept of   “Law”  in Global Administrative Law: A Reply to Benedict Kingsbury ’  (2009)
20(4) European
20(4)  European Journal of International Law  985.
Law  985.
62
See Terrence C. Halliday, Gregory Shaffer,   ‘Transnational Legal Orders’  in Halliday, Shaffer (eds), Trans-
(eds),  Trans-
national Legal Orders (Cambridge
Orders  (Cambridge University Press, 2015) 20.
63
 ‘ ’
Lary Cata Baker, Prinicples of 007/03/principles-of-tra
lcbackerblog.blogspot.com/2
lcbackerblog Transnational
.blogspot.com/2007/03/p Law: The Foundations of an Emerging
rinciples-of-transnational-law.htm
nsnational-law.html (lastt Field
l> (las vi
visi
site,donline:
ted Ja
Janu <
<http:// 
nuar http:// 
ary
y 13
13,,
2016).

12 M. A V B E LJ

64
understanding. The former former—the transn
transnatiationa
onall law   lato sensu—encom-
lato sensu
passes any law whose effects extend beyond the state, whereas the latter,
the transnational law  stricto
  stricto sensu  relates only to the body of transnational
law that does not originate, directly or indirectly, from the organs of the
state. Transn
Transnation al law   stricto
ational stricto sensu
sensu   is thus transnational law without a
65
state. By following this distinction, whereby the guiding criterion is the
authorship or at least influence of the state in the making of transnational
legal rules, a map of transnational law  lato
  lato sensu  could be drawn as follows.
Transnational law
Public Administrative Private
International law Public New  lex mercatoria
Supranational law Hybrid Transnational corporate law
Private international law Private
Transnational human rights regimes

The map is composed of three parts. Transnational law  lato

  lato sensu  can be:
 public, administrative and private. Public transnational law consists of inter-
national law, supranational law, private international law and transnational
human rights litigation regimes. International law includes legal norms that
govern the relationships between states as well as between states and inter-
nation
national
al organi
organisat
sation
ions.
s. Int
Intern
ernati
ationa
onall law belbelong
ongss to pub
public
lic transn
transnati
ation
onal
al
law because it exists in the legal realm beyond the state and is exclusively 
created by public entities: either directly or indirectly by the states in their
engagement in international law-making through international organisations.
Supranational law is an example of an autonomous legal order, separate
both from national legal orders as well as from international law. Its most
deve
develo
lope
ped
d ex
exam
ampl
plee is the
the law
law of the
the EuEurorope
pean
an Unio
Unionn (EU)
(EU).. Or
Orig
igin
inal
ally 
ly 
created as a regional international organisation it has through the institutional
practices that have been, explicitly or tacitly, sanctioned by the Member States
evolved its own legal order, with its own constitutive rules, principles and

practices that in many ways

law. The supranational depart
law of significantly
the EU from general
is part of public international
transnational law as
it is situated in the legal space beyond the Member States. As masters of 
the founding treaties they remain in control of the constitutional set-up of 
the EU and continue to keep hold of its law-making powers, even though
64
For a similar distinction see Gralf-Peter Calliess,   ‘Reflexive Transnational Law: The Privatisation of Civil
Law and Civilisation of the Private Law’ (2002) 23(2) Zeitschrift
23(2) Zeitschrift für Rechtssoziologie 185.
Rechtssoziologie 185. He defines trans-
national law as a third level autonomous legal system beyond municipal and public international law,
created and developed by the law-making forces of a global civil society, founded on general principles
of law as well as societal usages, administered by private dispute resolution service providers, and codi-
fied (if at all) by private norm formulating agencies.   See,See, also Gregory Shaffer,   ‘Transnational Legal
’
Process and State
Transnational LegalChange  (2012)
Ordering 37(2)Change (Cambridge
37(2) Law
and State  Law and
Change Social Inquiry 
 (Cambridge   229, as
 229,
University well2013).
Press, as Gregory Shaffer (ed),
65
To paraphrase Teubner’s global law without a state, see Gunther Teubner,  ‘ Foreword’ as well as  “ Global
Bukowina”: Legal Pluralism in the World Society’ in: Teubner (ed), Global
(ed),  Global Law Without a State (Ashgate,
State  (Ashgate,
1997).

 TRANSNATIONAL
 TRANSNAT IONAL LEGAL THEORY 13

they have long lost the monopoly over them due to the erosion of the consen-
sus requirement, the special independent role of the Commission and the
growing powers of the European Parliament.
The next example of public transnational law is private international law.
This is state-made law which regulates the choice of law and determines the
competent jurisdictions over cases involving cross-border elements. Private
international law belongs to transnational law because of the remit of its appli-
cation. It is state law, eg part of the statist legal hierarchy, which applies to
transnational situations. In that way it differs from international and suprana-
 tional law which both originate from states, without being part of the national
legal hierarchy. Rather they are situated in the transnational legal space, from
where they regulate and affect transnational as well as national situations. 66
Finall
Fin ally,
y, public
public tra
transna
nsnation
tional
al law includ
includes
es tho
those
se nati
nationa
onall regi
regimes
mes whi
which
ch
provide for universal jurisdiction. The best example
example of  of this is the US Alien
TortCla
Tort Claims
ims Act whi
which,
ch, follow
following
ing the Filart
Filartiga ruling,,67 enabl
iga ruling enables
es foreig
foreign n claimants
claimants
tobringactionsfortorts
tobringactionsfortor ts committ
committed ed in the violat
violation
ion of interna
internation
tional
al la
law 
w inathird
inathird
country in US courts.68 The Filartiga decision has opened the gates69 wide for
transnational litigation on violations of human rights committed mostly by 

transnational
transna
 judici
 judicialal tional
redressactors
redress in environment
was absent
absenenviro nments
t either s where
dejure or de the
factooappropriate
fact appro
Theepriate
. Th regimeeforum
regim for
for tr fornatio
trans
ansnatseeki
seeking 
ng l
iona
nal
human
hu man ri righ
ghts
ts litig
litigat
atio
ionn be
belo
long
ngss to publ
public
ic tra
trans
nsna
nati
tion
onalal la
law
w beca
becaususee it
itss lega
legall basi
basiss
derives from the state and since it is effectuated in the courts of the state. They 
decide on the cases of pure transnational origin, which come under their juris-
diction solely by virtue of a plaintiff ’s tort action against an individual over
whom the judging
judging state has obtained
obtained a persona jurisdiction..70
personall jurisdiction
It is thus characteristic of public transnational law that states continue to
exer
ex erci
cise
se a re rela
lativ
tivel
elyy dire
direct
ct contr
control
ol over
over th
thee tratrans
nsna
nati
tion
onalal lalaw-
w-ma
maki king 
ng 
process. This control is, however, incrementally weakening as we move to

the fieldtra
administr
adminis of administrative
ati
tive law as it transnational
ve law ha
hass be
been delaw.
en defifine
neddThis
by corresponds
Ki
King
ngsb
sbur y, to
ury, Krthe
Kri schglobal
isch an
andd
Stewart.71 HoHowe
weve
ver,r, whil
whilee only
only some
some rule
ruless of glglob
obal
al ad
admi
mini
nist
stra
rati
tive
ve la
law 
w 
72
havee global
hav global eff
effect
ectss or sco
scopepe of applic
applicati
ation,
on, the theyy all hav
havee tran
transna
snatio
tional
nal

66
This distinction between transnational law which   ‘only’  applies to transnational situations and transna-
tional law which is a transnational construction and flow of legal norms relies on Shaffer (n 64) 233 –4.
67
Filártiga v. Peña-Irala, 630 F.2d 876 (2d Cir. 1980).
68
For an early discussion of this case, see Anne-Marie Burley,  ‘ The Alien Tort Statute and the Judiciary Act
of 1789: A Badge of Honor’  (1989) 83 American
83  American Journal of International Law  461.
Law  461.
69
They have been recently basically closed by the Supreme Court ruling in Kiobel v. Royal Dutch Pet-
70 roleum
Burley (n Co.,
68)133 S.Ct. 1659 (2013).
461.
71
Benedict Kingsbury, Nico Krisch, Richard B. Stewart,   ‘The Emergence of Global Administrative Law’
(2005) 68 Law
68  Law and Contemporary Problems 15.
Problems  15.
72
Ibid , 18 –9; see also Shaffer (n 64) 232  ‘ The concept of transnational law has been developed, in parallel,
to address legal norms that do not clearly fall within traditional conceptions of national and inter-
national
nati onal law, but are not necessarily
necessarily global in nature
nature’.

14 M. A V B E LJ

effects, which speak in favour of using the term transnational rather than
global
global adm
admini
inistr
strati
ative
ve law
law.. Admini
Administr
strati
ative
ve tra
transn
nsnati
ationa
onall law thus
thus exi
exists
sts in
transnational administrative space governed by transnational administrative
 bodiess which might be of public, hybrid (public–private) and private charac-
bodie
ter.73 Accordingly, administrative transnational law is broken down into three
clusters:
cluste rs: publ
public,
ic, hybrid
hybrid and priva
private
te admin
administrati
istrative
ve transn
transnationa
ationall law.
Before looking more closely at each of the clusters, let us examine what the
adjective administrative adds to transnational law. Classifying transnational
rules
rules as admini
administr
strati
ative
ve design
designate
atess the
their
ir mezzo-
mezzo-lev
level
el legal
legal charac
character
ter and
specific, eg administrative function. Administrative transnational rules are
adopted within the permissible legal scope defined by the law of the state,
international law, supranational law or private contractual regimes for their
respective actors. Administrative transnational rules are thus always derived
from pre-existing legal bases to which they must trace their origin and val-
idity. The function of transnational administrative rules is to administer,
execute or to make possible the execution of policies contained in more
abstract and general rules through the setting of regulatory standards.74
As stated abov
above,
e, transn
transnation
ational
al administrative
administrative law can be publi
public,
c, hybri
hybrid
d or
private. Public administrative transnational law is created by the organs of the
state, international organisations or supranational organisations. State organs
can create transnational administrative law on two levels. First, on the dom-
estic level by adopting regulatory decisions with transboundary effects. Kings-
bury, Krisch and Stew tewart have dubbed this mode of tran transn
snat
atio
iona
nall
75
administrative law-making distributed administration. Second, states also
create transnational administrative rules in the transnational administrative
space beyond the state by taking part in formal, semi-formal and informal
trans
transna
nati
tion
onal
al regu
regula
lato
tory
ry netw
networ
orks
ks in whic
whichh the
theyy co
co-o
-ope
pera
rate
te wi
with
th ot
othe
herr
states and/or
states and/or intern
internati
ationa
onall and supran
supranati
ationa
onall organi
organisat
sation
ions.
s. Thi
Thiss second
second
mode of primarily state-driv 
state-driv een
n transnational administration through transna-
76
tional regulatory networks can, depending 
depending   on
on the actors involved, be statist,
international, supranational or combined.77
Publ
Pu blic
ic ad
admi
mininist
stra
rati
tive
ve tra
transnational law also emanates tes from the
internation
intern ational
al administrat ion78 in intern
administration internati
ationa
onall organi
organisa
satio
tions
ns addres
addressising 
ng 
79
re
regu
gula
lato
tory
ry qu
ques
esti
tion
onss in the fiel
fields
ds of ec
econ
onom y, financ
omy, finance,
e, envir
environmen
onment, t,80

73
Kingsbury, Krisch, Stewart (n 71).
74
 ‘
Ibid , 17. treaty-making
neither Transnational nor
administrative action
simple dispute is rulemaking,
settlements adjudications,
between parties ’. and other decisions that are
75
Ibid , 19.
76
Ibid , 20.
77
Ibid , 20–3.
78
Ibid , 21.
79
Ibid .
80
Ibid , 19. According to the authors the environmental regulation is partly the work of non-environmental
administrative bodies such as the World Bank, OECD, and WTO, but increasingly far-reaching regulatory

 
  TRANSNATIONAL
 TRANSNAT IONAL LEGAL THEORY 15

and security.81 With reference

reference to internationa
internationall administrat
administration
ion Kingsbury,
Kingsbury,
Krisch
Krisc h   and Stewart distinguish betw eeen en international administration with
82 83
direct and indirect regulatory effects. It is also created by the supranational
administration which takes place in supranational organisations, such as the
EU. Within the EU, one should emphasise the system of comitology as an
example of a well-developed supranational regulatory network composed of 
committees
commi ttees consis
consisting
ting of the representatives of the state, supranational and
exper interests.84 Ho
expertt interests. Howe
wevever,
r, thes
thesee last
last freq
freque
uent
ntly
ly co
come
me from
from the priv
privatatee
sector, which brings the system of comitology very close to that of hybrid
transnational administrative law.
Hybrid transnational administrative law is created in the transnational
administrati
admin istrative
ve space beyond the state jointly by public public (stati
(statist,
st, intern
internation
ational,al,
supranational) and private actors. Pri Pri vate
 vate actors can be representatives of 
 various transnational civil societies;85 they they can
can be draf
drafte
ted
d fro
fromm di
diff
ffer
eren
entt
expert groups, scientific communities and associations and they can be repre-
sentatives of businesses, etc. Transnational civil society has been composed
mainly
mai nly of transn
transnatiationa
onall religi
religious
ous act
actors
ors and tratransn
nsnati
ationa
onall sector
sector-ba
-based
sed
NGOs. Historically, religious communities predate the modern Westphalian
state, the emergence of which led to to   an intricate relationship between the
laws of the state and of the church. 86 With the progress of secularisation,
especi
esp eciall
allyy in the West,
West, rel
religi
igious
ous comcommunmuniti
ities
es wer
weree in tempor
temporaryary retrea
retreat.t.
Howe
Ho weve
ver,r, th
thee late
late twen
twentie
tieth
th cecentu
ntury
ry hahass wi
witn
tnes
esse
sed
d a revi
reviva
vall of reli
religi
giou
ouss
actors and communities, which have seized the technological advancement
to enhance and strengthen their cross-border netwo networks,
rks, mostly through appli-
cation and development of religious   ‘soft power’.87 In so doing, transnational
religious actors have exerted increasing influence over sovereign states, inter-
national
nation al polit
politics,
ics, order and disorder.
disorder.
Simultaneously, we have witnessed an immense growth of transnational
sector-bas
secto r-baseded NGOs, both in number number and in geographic
geographic reach. Transnati
Transnational
onal
NGOs have been defined as   ‘groups of persons or of societies, freely created by 

structures are also being established in specialised regimes such as the prospective emissions trading
scheme and the Clean Development Mechanism in the Kyoto Protocol.
81
Ibid , 19. Administrative action is now an important component of many international security regimes,
including work of the U.N. Security Council and its committees, and in related fields such as nuclear
energy regulation (the IAEA) or the supervision mechanism of the Chemical Weapons Convention.
82

83 Ibid 
Ibid., 21.
84
Gijs Jan Brandsma, Controlling
Brandsma,  Controlling Comitology  (Palgrave
  (Palgrave MacMillan, 2013).
85
Ronnie D. Lipschutz,  ‘ Reconstructing World Politics: The Emergence of Global Civil Society’  (1992) 21(3)
Millennium, Journal of International Studies 390
Studies  390 has defined a transnational civil society as  ‘ the self-con-
scious constructions of networks of knowledge and action, by decentred, local actors, that cross the
reified boundaries of space as though they were not there’.
86
This has been fittingly described as the   ‘locus classicus of
classicus  of thinking about the multiplicity of normative
orders’. Marc Galanter,  ‘ Justice in Many Rooms: Courts, Private Ordering, and Indigenous Law’ (1981) 19
 (1) Journal
(1)  Journal of Legal Pluralism 28.
Pluralism  28.
87
Jeffrey Haynes,   ‘Transnational Religious Actors and International Order’  (2009) 17(2) Perspectives
17(2)  Perspectives 47.
 47.

16 M. A V B E LJ

private initiative, 
initiative,   that pursue an interest in matters that cross or transcend
national borders’.88 NGOs should be distinguished, although the line is some-
times blurred, from intergovernmental organisations, that come into being 
through intergovernmental co-operation, as well as from the transnational

corp
co rpor
orat
atee ac
acto
tors
rs,, disc
discus
usse
sed
d belo
below,
w, by ththee fact
fact th
that
at th
they
ey are
are no
nott prof
profit
it
seekers.89 NGO
NGOss exeexerci
rcise
se four
four cor
coree fun
functi
ctions
ons in the transn
transnati
ationa
onall realm:
realm:
they contribute to the developmen
development,
t, interpretation, judicial application and
enforcement of transnational law.90 They also work together with representa-
tives of states, international and supranational organisat
organis ations
ions in a variety of 
standard-setting bodies or run certification programs.91 Depending on the
degree of involvement and influence of the public actor on the decision-
making process, these hybrid standard-setting or certifying bodies can be
more or less public.
In cases of standard-setting and certifying bodies in which states or other
public entities are absent from decision-making, we c
we can
an speak about the emer-
gence of private administrative transnational law.92 Examples quoted in the
literature include: International Accounting Standards Board; Underwriting 
Labora
Lab orator
tories
ies;; Mot
Motion
ion Pictur
Picturee Associ
Associati
ation
on of Americ
America;
a; Fin
Financ
ancial
ial Indust
Industry 
ry 
Regulatory Authority; International Organization for Standardization; Inter-
national Electrotechnical Commission; Forestry Stewardship Council; Fair
Labor Association; Fairtrade International; International Council of Chemical
Associations; International Social and Environmental Accreditation and Lab-
elling
elling All
Allian
iance,
ce, Int
Intern
ernet
et Corpor
Corporati
ation
on for Ass
Assign
igned
ed Nam
Names es and Num
Number
bers;
s;
Codex Alimentarius Commission; lex sportiva internationalis; lex construc-
tionis, etc. Most of the rule-makers in the field of private administrative trans-
national law are thus founded as private, non-governmental, not-for-profit
entities, which can be recognised or authorised by the legislature or executive
in the country of their incorporation. The rules produced by these private
actors are administrative because they bind or regulate, through acceptance,
the collective practices of numerous entities in designated sectors without
their prior assent to these rules. Private administrative transnational law is
thus not a contract based-law of horizontal application between consenting 
part
pa rtie
ies,
s, but
but inst
instea
ead
d carr
carrie
iess with
with it el
elem
emen
ents
ts of verti
vertica
cali
lity
ty and
and auth
authororit
ity 
y 
which are not founded on consent.
 88
Steve Charnovitz,   ‘Nongo
Nongovernvernment
mental
al Orga
Organizat
nizations
ions and Inter
Internatio
national
nal Law’   (2006) 100(2)   American
 Journal of International Law  350.   350.
89
Ibid.
90
Ibid , 352. The author, however, limits the scope of NGOs only to international law; see also Till Muller,
‘Customary Transnational Law: Attacking the Last Resort of State Sovereignty ’   (2008) 15(1)   Indiana

 Journal of Global Legal Studies 19.

Studies  19.
91
Larry Cata Backer,   ‘Private Actors and Public Governance Beyond the State: The Multinational Corpor-
ation, the Financial Stability Board and the Global Governance Order’  (2011) 18(2) Indiana
18(2)  Indiana Journal of 
Global Legal Studies 767.
Studies  767.
92
Eric C. Ip,  ‘ Globalization and the Future of the Law of the Sovereign State’ 2010 8(3) International
8(3) International Journal 
of Constitutional Law  644.  644.

 TRANSNATIONAL
 TRANSNAT IONAL LEGAL THEORY 17

This is also how it differs from the last group of transnational law: private
priva te
transn
transnati
ationa
onall law
law.. Pri
Privat
vatee transn
transnati
ationa
onall law is nor
normal
mally
ly contra
contract-
ct-based,93
based,
emanates from consensual agreements and practices of participating private
parties, engaged
parties, engaged in horizontal
horizontal,, non-authori
non-authoritative
tative relations
relationships,
hips, defined by at
least formal equality of parties. One example of this type of private transna-
ti
tion
onal
al la
laww is the
the so-c
so-cal
alle
led
d neneww lelexx merc
mercatator
oria
ia (m
(mererch
chan
antt la w)..94 Stone
law)
Sweet has fittingly defined it as   ‘the totality of actors, usages, organizational
te
tech
chni
niqu
ques
es,, an
andd gu
guid
idin
ingg prin
princi
cipl
ples
es that
that ananim
imat
atee priv
privat
ate,
e, trtran
ansn
snat
atio
iona
nall
95
tradingg relati
tradin ons’. The new lex mercatoria consists of two distinct, but
relations
related bodies of norms: substantive and procedural. The first encompasses encompasses
rules, principles and standards of the nascent transnational contract law.96
The second body of law governs and institutionalises the procedural mechan- mecha n-
isms, largely arbitral, for resolving disputes related to transnational trade. 97
Driven by the functionalist agenda of facilitating transnational trade both
sets of rules for the new lex mercatoria were initially practice-based, and
have therefore evolved spontaneously to be incrementally taken up and codi-
fied by private tran
transnational specialised associations and chambers of pro-
fessional interests.98 To ensure the autonomy of the new lex mercatoria this
codification has been deliberately done without involving national govern-
ments. States, however,   w h hile
ile still the principal and ultimate enforcers
enforcers   of 
the new lex-mercatoria, have for a variety of instrumental reasons, 100 as
99

well for the simple reason of of their incapacity to provide functional means
to foster transnational trade,101 recognised this autonomy and created ever
more room for it.
Anothe
Ano therr typ
typee of privat
privatee transn
transnatiation
onal
al law derive
derivess fro
from
m self-r
self-regu
egulat
lator
ory 
y 
activities of the organs of transnational corporations. This is transnational
corporate law, which consists of norms regulating internal governance of 
 93
Cata Backer (n 91) 769:   ‘These regulatory regimes are not effectuated using the well-known tools of 
state regulations—positive law and judicial and administrative decisions. Rather, contract serves as
the means by which the   ‘law’  of this system is memorialized and made binding ’.
94
For an overview of the development of the lex mercatoria and the new lex mercatoria as well as on
diverging theoretical opinions on it see Klaus-Peter Berger, The
Berger,  The Creeping Codificiation of the New Lex 
95 Mercatoria (Kluwer
Mercatoria
Alec Stone (Kluwer Lawnew Lex
Sweet,   ‘The International,
new 2010).
 Lex Mercatoria and
Mercatoria  and Transnational Governance’  2006 13(5) Journal
13(5)  Journal of Euro-
 pean Public Policy  629.
  629.
96
Ibid , 633–5. These can also form a coherent body of legal norms in a designated functional field, such as
the laws regulating the carriage of goods by sea (lex maritima), see, for example: William Tetley,   ‘The
General Maritime Law—The Lex Maritima’  (1994) 20 Syracuse20  Syracuse Journal of International Law and Com-
merce 133.
merce  133.
97
Stone Sweet (n 95) 635 –7.
98
The most important among them is UNCITRAL, also the International Chamber of Commerce etc.
99
Which leads traditionalists to argue that even the new lex mercatoria is still state-dependent law, see
Stone Sweet (n 95) 637.
100
Ibid , 639–640. The author mentions three reasons: to attract transnational trade; to relieve the national
 judiciary of overload of cases, to attract financially stimulating transnational arbitral bodies.
101
Ibid. The
Ibid.  The author believes that  ‘ state-supplied institutions governing trade probably reached their func-
tional limits no later than in the 1960s’.

18 M. A V B E LJ

corporations
corporatio ns and the relationsh
relationships
ips between
between corpo
corporations.102 Due to their
rations.
growing economic power and increased mobility of capital, multinational cor-
porations have increasingly outgrown the regulatory territorial bounds of par-
ticular states and outwitted their monopoly of power. They are nowadays
increasingly able to forum-shop for the best national regulations and can,
especially in relation to developing countries, impose their standards and
regulatory expectations over the national laws of those countries. In many 
ways, transnational corporations have become their own, autonomous rule-
makers. Their rules, developed independently of national legal and political
infl
influe
uenc
nces
es,, usua
usuall
llyy come
come into
into be
bein
ingg an
and
d are
are en
enfo
forc
rced
ed th
thro
roug
ugh
h co
cont
ntra
ract
ct..
They often take the form of soft-law, with effects functionally paralleling 
103

those
of the of hard law. alone
corporations Intern
Int ernally
104 ally these rules, created by the governing bodies
or in consent with stakeholders in the corporate
corporate
supply chain, tend to govern the overall corporate activity of an enterprise.105
Externally, these rules come into being and regulate on a voluntary 
volunta ry  participa-
 participa-
tive basis the relationships among the community of enterprises.106 Transna-
tional corporate law thus stands for the private, autonomous, increasingly 
institutiona
institutionalise
lised
d law-making
law-making capacities
capacities of transn
transnationa
ationall corporation
corporations,s, who
conduc
con ductt their
their busine
business
ss across
across nation
national
al fro
fronti
ntiers
ers,, on transn
transnati
ationa
onal,
l, eve
even
n
global, plan
planes
es in select, narrow or more encompassing functional economic
107
domains.
 6. Modernity, post-modernity and transnational law
Having drawn the map of transnational law, it becomes clear that the legal
landscape has been changed dramatically in the last few decades. With the
emergence of transnational law, we have seen the arrival of a post-modern
concept of law. In Zumbansen’s words:   ‘transnational law works itself like a
drill through the few remaining blankets hastily thrown over
ove r aan
n impoverished
and internally decaying conceptual body [of modern law]’.108 As an object of 
the process of post-modernisation, the modern concept of law has thus been
profoundly affected in all of its constitutive elements, but foremost in its statist
character.
102
With regard to the distinction between internal and external transnational corporate rules I am
drawing on Cata Backer (n 91).
103
Ibid , 765.
104
The most well-known acts of this sort are the codes of corporate governance. They are normally
drafted by non-state actors, such as NGOs, private industry institutes or corporate actors. See Peer
Zumbansen,   ‘Neither   “Public”   nor   “Private”,   “National”   nor   “International”: Transnational Corporate
Governance from a Legal Pluralist Perspective’  (2010) 22 Osgoode
22  Osgoode CLPE Research Paper  19.  19.
105
Cata Baker (n 91) 762.
106
Ibid.
107
Ibid , 756.
108
Peer Zumbansen,   ‘Transnational Law’  (2008) 9 CLPE 9  CLPE Research Paper  739.
  739.

 TRANSNATIONAL
 TRANSNAT IONAL LEGAL THEORY 19

While modern law has been almost exclusively associated with the state as
a territorial entity, transnational law is largely a product of non-statist func-
tional entities. The state has obviously lost its monopoly over law-making.
It has ceased to be an exclusive source of law. Multiple sites of law-making 
on the subnational, national, international, supranational and global levels
with
wi th in
incr
crea
easi
sing
ngly
ly plau
plausi
sibl
blee cl
clai
aims
ms to thei
theirr ow
ownn le
lega
gall auto
autono
nomymy (to
(to th
thee
quality of its own legal order rather than just a set of legal rules) have come
into being and unsettled the modernist vision of law. Despite the fact that
we   hav e been
been   ‘brai
brainw
nwas
ashe
hedd to seseee the
the st
stat
atee as an esse
essent
ntia
iall pa
part
rt of th
thee
109
law ’, our world now contains
contains a  a plurality of sources of law. Ours is thus
110
the era of legal poly-centricity.
Contemporary law is increasingly created by private or hybrid, rather than
by public actors alon
alone.e. Indeed, with postmodern social, economic and techno-
111
logical   pr
processes
ocesses the
the trad
tradit
itio
iona
nall publ
public
ic-p
-pri
riva
vate
te di
divi
vide
de ha
hass be
beco
come
me
blurred.112 Sim
Simult
ultane
aneous
ouslyly the tra
tradit
dition
ional
al unders
understan
tandin
dingg of sovere
sovereign
ignty,
ty,
where sovereignty is an absolute, indivisible, unitary property of a territorially 
 delimited state, which ultim
delimited ultimately
ately autonomously
autonomously and exhaustivel
exhaustivelyy gover
governs
ns its
internal affairs and enjoys equal independence externally in relation to other
states, has subsided.113 With new, non-statist, non-territorial, largely func-
tional juris-gener
juris-generative
ative entities, some have called for a refined understanding 
of sovereignty,114 while others have even declared it dead or at least obso-
lete.115 As sovereignty has evolved from an exclusively territorial to a func-
tional concept, the law too is increasingly becoming a functionally, rather
than just a territorially bound phenomenon.
In the law ’s formal dimension, due to the demise of the monopoly over its
creation, its central tenet of hierarchy has been significantly undermined,
perhaps even abandoned. The plurality of legal sources, giving rise to a plur-
alit
alityy of le
lega
gall orde
orders
rs and
and regi
regime
mes,
s, rela
relati
ting
ng in a he
hete
tera
rarc
rchi
hica
cal,
l, rath
rather
er th
than
an

109
Thoma Waelde,   ‘Edited version of the Lex Mercatoria Discussion on the OGEMID (Oil-Gas-Energy-
Mini
Mining-In
Novem
Nov ng-Infrast
berfrastructu
ember 11,ructure
20 re ’,Disp
2003
03 Dispute
ute
online:: Manag
online Manageme
ement),
nt), Discussio
Discg/lex-mercatoria-and-lawyer
ussion
n Forum
<www.trans-lex.org/lex-merca
www.trans-lex.or betw
betweeneen Nove
November
toria-and-lawyers_ID15mber
s_ID15>> 5,(las
2003
(lastt vi and
visi
site
ted
d
January 8, 2016).
110
Tuori (n 56) 24:   ‘“Polycentricity”  connotes a multiplication of sources of law; the fact that new partici-
pants have been granted access to legal discourse, where the ever-changing content of the legal order
is determined’.
111
The technological breakthrough in the last decades has been described as   ‘the most powerful engine
of change in the relative decline of states and rise of nonstate actors ’. See Jessica T. Mathews,   ‘Power
Shift’  (1997) 76 Foreign
76  Foreign Affairs 51.
Affairs  51.
112
For an analysis, see Hans-W. Micklitz,   ‘Rethinking the Public/Private Divide’  in Miguel Maduro, Kaarlo
Tuori, Suvi Sankari (eds), Transnational
(eds),  Transnational Law  (Cambridge
  (Cambridge University Press, 2014); Inger-Johanne Sand,
‘Globalization and the Transcendence of the Public/Private Divide —What is Public Law under Con-

ditions of Globalization’  in Cormac Mac Amhlaigh, Claudio Michelon, Neil Walker (eds)  After Public 
Law  (Oxford
  (Oxford University Press, 2013).
113
Avbelj (n 7).
114
Ibid.
115
Stephen D Krasner,  ‘ Think Again: Sovereignty’ (2001) 121 Foreign
121 Foreign Policy  20;
 20; Richard Bellamy, Dario Cas-
tiglione,   ‘Building the Union: The Nature of Sovereignty in the Political Architecture of Europe ’  (1997)
16 Law
16  Law and Philosophy  421.   421.

20 M. A V B E LJ

hierarchical
hierarchic al way, has inevitably
inevitably also affec
affected
ted modern law ’s promise of order.
The order to be ensured by the law has been threatened by a plurality of juris-
generative   si
generative sites
tes and the fragmentation of laws in the absence of a clear-cut
116
hierarchy. Plurality and fragmentation are obstacles in the way of coher-
ence, stability and consequently to predictability and certainty. These have
all been the central values of modernity and the outcomes anticipated from
the modern concept of law. The postmodern concept of law, epitomised by 
transnational law, puts all of the referred formal elements of the modern
concept of law into question.117 But it does so with its substantive side.
The aforementioned plurality and fragmentation also mean that the sub-
 st
stan
anti
tive
ve valu
values
es embo
embodi
died
ed and
and prot
protec
ecte
ted
d by di diff
ffer
eren
entt lelega
gall orde
orders
rs anandd
regimes differ, too. This undermines modern law ’s presumption, indeed insis-
tence, on the universality of legal substantive standards, most notably human
rights. It is thus not only the formal framework of the law, which is being 
strained by the emergence of transnational law, but also the substantive foun-
dations from which it draws and is there to protect. Postmodern law therefore
features formal legal plurality, rather than unity, and substantive value-diver-
sity, rather than uniformity.
However, the challenges of transnational law go even further than the reas-
sessment of the modern concept of law. They trigger the rethinking of our
legal thought—of the very way we reason in and about the law. This has tra-
ditionally been embedded in the monistic mindset, whose supreme substan-
ti
tive
ve valu
valuee is orde
order,
r, re
rely
lyin
ingg on the
the proc
proced
edur
ural
al appa
appararatu
tuss of bibina
nary
ry lo
logi
gic.
c.
Glenn confirms this by observing that ever since Plato, but reinforced by 
the modernist legal thought since the peace of Westphalia, western lawyers
have been adhering to the pattern of   ‘hierarchical dualism’, underlined by 
the laws of identity, of non-contradiction and of the excluded middle. 118 To
grasp the richness of postmodern transnational law it is, however, necessary 

to
thelook at the
present
pres ent spaces
binary in-between
logic has to be the existing legal
supplemented le119
gal  by
dichotomies. To do so
fuzzy or multi-value
logic,120 which allows   for
for a multivalent approach and brings back in the
121
long excluded middle.
The process of transition from modernity to post-modernity has thus led to
the transformation of modern law as its object and resulted in the creation of 

116
Gunther Teubner and Andreas Fischer-Lescano,   ‘Regime-Collisions: The Vain Search for Legal Unity in
the Fragmentation of Global Law’  (2004) 25(4) Michigan
25(4)  Michigan Journal of International Law  999.
  999.
117
Peer Zumbansen,   ‘Defining the Space of Transnational Law: Legal Theory, Global Governance, and
Legal Pluralism’  (2012) 21 Transnational
21  Transnational Law & Contemporary Problems 314.
Problems  314.
118
Glenn (n 36) 62–3.
119
Ibid , 68, Glenn makes it clear that fuzzy logic is inclusive of rather than in contradiction with the binary
logic:   ‘Multivalent logic can be used where it is appropriate to do so, without entailing the abandon-
ment of historically useful binary distinctions in domestic law’.
120
JC Beal and Greg Restall, Logical
Restall,  Logical Pluralism (Oxford
Pluralism  (Oxford University Press, 2006).
121
Glenn (n 36) fn 52.

 TRANSNATIONAL
 TRANSNAT IONAL LEGAL THEORY 21

transnational law with several post-modern characteristics. However, once

transnational law has come into being, it has ceased to be just the product
of post-modernity. It has also become its source and generator: a subject of