Transnational Law

Question 1

What is transnational law?

Answer 1

Law that governs transnational behaviour, or has transnational implications.

Law that is not part of international law because it does not regulate the relationship between states.

Law that is not domestic law because it is not a singular, exclusive and autonomous legal regime within a particular state.

Law that is still, ultimately, law because it significantly involves persons of legal training and regulates behavior.

Question 2

What are 4 examples of transnational law?

Answer 2

International arbitration

WTO Trade Law

Human rights law

Global competition law (International Competition Network)

Question 3

Does transnational law include religious law (Islamic Law)? Why or why not?

Answer 3

No.

Law tends to be associated with secularity in the West.

Question 4

What is the Westphalian Duo?

Answer 4

William Twining’s two binary conceptions of law: Public international law, and domestic law.

Public international law governs relations between states.

Domestic law is the law that governs within a state.

Question 5

wHAT IS TRANS-NATIONAL LAW (SHORT ANSWER)?

Answer 5

The sum of transnational situations and activities in which legal professionals find themselves engaging in.

Question 6

What was the first real crack in the Westphalian duopoly?

Answer 6

The establishment of a new field of law called human rights law after World War II.

The actual focus of human rights law was between states and its citizens. This did not fit easily within the Westphalian duopoly.

Question 7

Why is the WTO a form of transnational law?

Answer 7

Yes, because…

Its regulatory norms are not the DIRECT product of any international treaty..

It involves the work of many legally trained professionals

Question 8

Why is transnational law not fully autonomous?

Answer 8

To be fully autonomous, the legal system itself should not be subject to any other outside source of authority.

But unlike state law enforcement regimes, transnational law regimes lack the ability to singularly compel performance through threat of coercive force.

They often have to negotiate compliance because they overlap and may be at odds with state law regimes.

This need for negotiation constrains autonomy because the transnational legal regime must sometimes be subordinate to the social and political considerations of a state regime.

Question 9

Why is international commercial arbitration an example of transnational law?

Answer 9

It can be performed by institutions that are not the product of any state’s domestic law.

It does not involve state-to-state relations.

Question 10

What are the 3 components of transnational law proposed by Dowdle?

or to put in other words,

What is Dowdle’s transnational regulatory regime?

Answer 10

Transnational; Transnational law spans beyond the jurisdictional boundaries of states, but do not involve state-to-state relations.

Regulation; Transnational law attempts to shape the behavior of entities or people in a specific way for a specific purpose.

Regimes; Transnational law has an organizational structure that allows it to carry out its regulatory activities.

Question 11

What are the 5 legal issues with transnational law?

Answer 11

Whether transnational law can be considered law in Hart’s semantics.

What gives transnational law its authority? (Perhaps, technocratic authority in terms of food safety?)

How to ensure the legitimacy of transnational law by enforcing democratic due processes in transnational law institutions.

What kind of enforcement practices are appropriate for transnational law

The issues of legal pluralism (overlap) with domestic law and public international law.

Question 12

What are the 4 kind of activities do transnational regulatory regimes engage in?

Answer 12

1. Setting transnational standards (eg. WTO Trade law)
2. Transnational dispute resolution (eg. international arbitration)
3. Setting standards for developmental aid (eg. World Bank financial aid)
4. Setting standards for humanitarian aid (eg. International Red Cross)

Question 13

What is Twining’s main argument in opposition to Hart and Dworkin?

Answer 13

That any singular theory of state law provides an inadequate theoretical framework as law becomes more cosmopolitan.

Hart’s theory cannot fit EU law, religious law, or transnational law.

Legal study must include the study of non-state legal regimes.

Question 14

What is Twining’s criticism of the Westphalian Duo?

Answer 14

Focusing solely on municipal law and/or public international law leaves out other forms of law, such as transnational law, religious law and soft law.

The study of law needs to be more cosmopolitan and inclusive than the Westphalian Duo allows it to be.

Non-state law should also be studied because they are a crucial part of understanding legal phenomena in general.

Question 15

What are the four concerns identified by Twining in incorporating non-state legal regimes into legal study?

Answer 15

1. A threat to legal democracy
2. Diluting the discipline of law
3. Conceptual difficulties 1: A definitional stop
4. Conceptual difficulties 2: The distinctiveness of state law

Question 16

Why is studying transnational law as part of formal legal study a threat to legal democracy?

Answer 16

Political ideals such as democracy, the Rule of Law, and social justice depend on a relatively strong and stable form of centralised governance.

However, Twinning counters that studying non-state law does not mean approving it or giving it equal significance to state law. State law can still continue to be the most important form of law while other forms of non-state law are studied.

Question 17

Why will studying transnational law as part of formal legal study dilute the discipline of law?

Answer 17

Academic law has been state-centered because state law is still the most important form of law. Also, since lawyers deal almost exclusively with state law, it is only proper that academic law (that also has a purpose in training lawyers) should be focused on state law.

However, Twinning counters that non-state law is also becoming increasingly relevant for legal practice.

Question 18

What are the conceptual difficulties with incorporating non-state law into formal legal study?

Answer 18

There is no clear basis for distinguishing legal norms from other non-legal social norms once the door is open to non-state law in all sorts of contexts and situations.

Question 19

Does Twining see the study of state law as important?

Answer 19

Yes. He acknowledges that state law is likely to be of great political and economic significance for the foreseeable future.

However, he thinks that legal scholars can focus exclusively on state law without regarding other forms of non-state law as unimportant or unworthy of legal study.

Therefore, the recognition of state law as the most important form of law does not mean that other forms of non-state law should be disregarded entirely.

Question 20

How would broadening our conceptions of law to non-state law like transnational law weaken ‘the comparative project’?

Answer 20

When jurists and lawyers study non-state law, they are likely to try to interpret them using folk concepts or resort to an undisciplined resort to the theoretical resources of the social sciences.

Therefore, the lack of usable analytic concepts will weaken the comparative project.

However, Twinning counters that law can retain its analytic integrity by relying on Hart’s concept of state law to maintain the distinction between state and non-state law.

Question 21

What does Dowdle propose to do with transnational law?

Answer 21

He proposes a conceptual mapping of transnational law as a distinct legal phenomenon so it can be studied more properly.