Transnational Legal Theory

This article aims to reconstruct and theorise the autonomy of the European Union (EU) legal system by drawing on Hartian legal theory. It comprises four claims. First, the European Court of Justice's (ECJ) 'foundational case law' on autonomy-and direct effect and supremacy as its corollaries-is conceptualised as a second-order thesis about the genus to which EU law belongs (the 'autonomy thesis'). Second, the ECJ's reliance on the full effectiveness of EU law as a justification for the autonomy thesis alludes to the deep connection between legality and effectiveness, but this connection cannot rationally explain the normativity of the autonomy thesis as an internal statement of law. Third, in order to provide such an explanation, the autonomy thesis is reconceptualised as an 'internal recognitional statement' by which the ECJ asserts a normative formulation of an autonomous EU rule of recognition. Fourth, within this Hartian analysis of the EU legal system, the doctrines of direct effect and supremacy lack self-standing analytical value. This article finishes with some very preliminary observations on a well-known objection against the autonomy of EU law based on the attitudes and perspectivism of national courts. two anonymous reviewers for helpful comments on earlier drafts. The usual disclaimer applies.

This article explores the conception of law that underlies the CJEU’s case-law, building on Opinion 2/13 on EU accession to the ECHR as a topical example. Joxerramon Bengoetxea’s metaphor of the CJEU being a ‘Dworkinian court’ fails to explain fundamental aspects of the Court’s case-law which are incompatible with Dworkin’s theory of law. Instead, the CJEU is committed to an EU legal system which conforms to Joseph Raz’s theory of the necessary conditions for legal systems: comprehensiveness, openness, and a claim of supremacy. Within this paradigm, the supremacy claim of EU law is in need of demystification because it is inherent to any legal system. Paradoxically, while Opinion 2/13 suggests that the EU should be given special treatment in its accession to the ECHR, the Court’s underlying conception of the EU legal system is essentially mimetic of the typical characteristics of national legal systems. This mimetic nature of the EU legal system entails a dissociation between the political and the legal nature of the EU: while the EU is certainly not a state, its legal system is no different from national legal systems.

This article explores the growing significance and theoretical implications of 'local rules'-such as Chinese labour standards, US financial regulation and Swiss bank secrecy rules-in the global economy. In particular, the argument developed is that Ronald Coase's framework for analysing the effects of legal rules on economic welfare can help to reveal important weaknesses in current international legal approaches to analysing the transnational impact of local rules as well as contribute to a 'global economic policy perspective' better attuned to problems of power in the global regulatory order. Such a perspective will help us to see the effects of power differences among political and economic actors in the global economy more clearly, and perhaps also to develop new and more complex notions of economic participation, political pluralism and distributive justice in the creation and operation of both the local and the international rules that comprise the global economic regulatory order.

The aim of the paper, based on empirical research in Brazil, is to investigate how supply chains have evolved over time, what factors have driven this evolution and also how a specific set of contractual practices along these chains is linked to access to international markets. The two selected case studies in the field of agriculture and aeronautics permit comparison between different modes of accessing international markets and GVCs; they illustrate the roles of transnational corporations and those of public institutions both at domestic and international levels in promoting access and determining its modes and potential spillover effects onto local production systems. More specifically, the research identifies the alternative channels of access to GVCs and international markets, and the institutional, legal and economic obstacles which prevent access or make it very costly. It looks at the role of intermediaries who control access to international markets, examining when they ope...

Leading legal scholars and philosophers provide a breadth of perspectives and inspire stimulating debate around the transformations of jurisprudence in a globalized world. This innovative book considers modifications to jurisprudence’s methodological approaches driven by globalization, the concepts and theoretical tools required to account for putative new forms of legal phenomena, and normative issues relating to the legitimacy and democratic character of these legal orders.

"The question whether constitutions exists or can exist at all beyond the state has been a central theme of academic dispute in the last decades. This contribution departs from the historical insight that extensive forms of ordering possessing constitutional qualities always have existed beneath, beside and above the state. In the last decades the debate on constitutionalism beyond the state has however unfolded in two separate discourses: One which focuses on public international organizations and another which focuses on private structures. The former is mainly driven by political scientists and public lawyers and is characterized by an attempt to rework nation state concepts of the political in order to make them compatible with transnational developments. The latter is, on the other hand, systematically downplaying the political dimension of transnational structures. In order to bridge this gap a number of key dimensions of a specific transnational concept of the political is being fleshed out.
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The 'conflicts law approach' reconstructs the potential of primarily, but not exclusively, European law to address the threat to democracy that is posed by the concern that citizens would increasingly be subject to the effects of laws which they themselves had not authored. This structural democratic deficit calls for consideration of 'foreign' demands. It also calls for cooperation and mutual respect between political constituencies. The normative basis for understanding conflicts law as a constitutional form with democratically grounded validity claims stems from the proposition that states must acknowledge or establish a law that provides a forum for foreign demands and manifests deference through transnational rules. The approach sets out to examine three types of conflict constellations—horizontal, vertical and diagonal legal conflicts—and three types of law-mediated responses, layered as the scheme of a 'three-dimensional conflicts law'.

ABSTRACT This essay analyses how the relation between food and fuel shapes the practice of collaborative food governance. Dominant explanations for the persistence of global hunger often point to the influence of political-economic inequalities on the production, distribution, and governance of global food. The causes of the 2007–2008 global food crisis, however, suggest the need to examine the entanglements between food and other forms of ecological extraction. I draw on the concept of ‘energopolitics’ to demonstrate how changing material processes of energy extraction condition the calculative logics through which transnational food governance is constituted. An energopolitical analysis, I argue, illuminates how collaborative food governance supresses the conflict between food and fuel that it was developed to mediate. In an era of climate change, such an approach reveals the links between food and broader struggles over carbon-fuelled inequalities.

Statehood has undergone rapid expansion in both depth and scope in recent history. It has, however, always been a limited form of social ordering which has operated in conjunction with other forms of social ordering located beneath, beside and above the state. The central structural cause behind the expansion in statehood was the implosion of the eurocentric world and the subsequent decolonisation processes that unfolded in the twentieth century. Besides leading to a globalisation of statehood, this transformation also implied a transformation of transnational forms of ordering away from colonial centre/periphery differentiation and towards the kind of functionally delineated regulatory regimes that represent the dominant form of transnational ordering today. Understanding the consequences of this fundamental transformation is the central issue with which contemporary transnational legal and political theory, including the conflicts law approach, is dealing with.

Statehood has undergone rapid expansion in both depth and scope in recent history. It has, however, always been a limited form of social ordering which has operated in conjunction with other forms of social ordering located beneath, beside and above the state. The central structural cause behind the expansion in statehood was the implosion of the eurocentric world and the subsequent decolonisation processes that unfolded in the twentieth century. Besides leading to a globalisation of statehood, this transformation also implied a transformation of transnational forms of ordering away from colonial centre/periphery differentiation and towards the kind of functionally delineated regulatory regimes that represent the dominant form of transnational ordering today. Understanding the consequences of this fundamental transformation is the central issue with which contemporary transnational legal and political theory, including the conflicts law approach, is dealing with.

ABSTRACT We sketch a novel mode of governance—‘global ungovernance’ (GU)—which draws on and informs the articles in this special issue. GU operates in the context of transnational institution-building projects which at once pursue big visions with claims to universality (eg, building ‘markets’ or the ‘rule of law’), and at the same time offer no adequate prescriptions. We argue that the ‘impossibility of closure’ becomes a central problematic of practical activity in GU—by which we mean the ultimate practical impossibility of matching institutional structures with desired outcomes in these contexts. Viewed as a set of organised practices, GU evinces a commitment both to pursue closure and to embrace its impossibility, equally competently and even at the same time. As a result, GU changes the nature, purpose and conditions of possibility of institution-building techniques and practices.

The special issue revisits the notion of human problems in Philip C Jessup's 1956 Transnational Law' Storrs Lectures on Jurisprudence. In order to explore the methodology and analytical utility of human problems and transnational law, the contributions introduce various case studies on corporate (ir)responsibility. This introduction first presents the role of human problems in Jessup's lecture on transnational law. It then briefly outlines some of the analytical benefits of a transnational human problem perspective in general and in the context of studying issues of corporate (ir)responsibility in particular. A final section provides summaries of the contributions brought together in this special issue. KEYWORDS Transnational law; Jessup; human problems; corporate responsibility; socio-legal studies 'Lawyers … have adhered to rigidly compartmentalized national legal systems, which are unable to cope with an economic order of international dimensions.' The use of transnational law would supply a larger storehouse of rules on which to draw, and it would be unnecessary to worry whether public or private law applies in certain cases. We may find that some of the problems that we have considered essentially international, inevitably productive of stress and conflict between governments and peoples of two different countries, are after all merely human problems which might arise at any level of human societyindividual, corporate, interregional, or international. 1

The aim of the paper, based on empirical research in Brazil, is to investigate how supply chains have evolved over time, what factors have driven this evolution and also how a specific set of contractual practices along these chains is linked to access to international markets. The two selected case studies in the field of agriculture and aeronautics permit comparison between different modes of accessing international markets and GVCs; they illustrate the roles of transnational corporations and those of public institutions both at domestic and international levels in promoting access and determining its modes and potential spillover effects onto local production systems. More specifically, the research identifies the alternative channels of access to GVCs and international markets, and the institutional, legal and economic obstacles which prevent access or make it very costly. It looks at the role of intermediaries who control access to international markets, examining when they operate as gateways and when as bottlenecks. It examines both private and public actors, trying to disentangle when they facilitate and when they hinder access. It focuses on the most relevant factors that may attract foreign direct investments in human and physical capital to Brazil.

Nowadays, cases involving questions of corporate (ir)responsibility are largely resolved through negotiated settlements. A controversial development in this context is the cross-border rise of procedures akin to US non-and deferred prosecution agreements which allow prosecutors to agree with corporations not to prosecute serious economic crimes. The article uses this example to discuss the relevance of transnational law as an analytical framework for studying domestic criminal justice reforms in a globalised world. It revisits one of the central, albeit less noticed, themes of Philip C Jessup's seminal 1956 Storrs Lectures on Transnational Lawtransnational human problemsand identifies its descriptive and evaluative-critical benefits. The article then investigates to what extent these benefits are reflected in today's two main theories of transnational law in criminal justice, ultimately finding that Transnational Legal Ordering of Criminal Justice provides a more suitable analytical framework than Transnational Criminal Law in this context. KEYWORDS Corporate crime and negotiated settlements; socio-legal studies; critical legal studies; transnational criminal law; transnational legal ordering of criminal justice

As marine life spirals towards mass extinction in this age of the Anthropocene, law seems incapable of preventing negative human impacts on marine biodiversity. As humanity realises its geological agency, what is the responsibility of law for marine life within the Anthropocene? This article explores this question by first theorising the concept of the Anthropocene within law, focussing on the concept of responsibility. It then analyses, based on critical environmental law theory, the core marine biodiversity norms from a historical and structural perspective. The article finds that the law of the sea is moulded by liberal constitutive processes, namely economic growth. Law is not passive in the Anthropocene; it is one of the institutions that brought the era forth. The article concludes that to ensure responsible human geological agency, law must be used strategically to destabilise the dominant paradigm and reform it in something that recognises our responsibility towards the oceans and the biosphere.

The contemporary literature on the philosophy of human rights features a clash between two opposing theoretical paradigms. The first paradigm, called Functionalism, grounds the nature of human rights in their practical or political significance. The second paradigm, called Foundationalism, grounds the nature of human rights in a pre-political substratum of moral thought to which positive legal-political institutions ought to conform. What tends to make the first paradigm more appealing is that it avoids the problem of grounding human rights in moral considerations that may be ethnocentric and thus not acceptable to all peoples everywhere. This paper makes a case for a version of Foundationalism called Natural Law Foundationalism, which has often been overlooked in the contemporary literature. It argues that Natural Law Foundationalism is a promising view because it is capable of confronting the ethnocentricity problem more effectively than other versions of Foundationalism. It also argues that the view can deliver on its promise because its main tenets have sufficient philosophical defensibility.

While the classic approach to transnational law provides a valuable tool for identifying the legal frameworks governing transborder occurrences, it falls short of covering all relevant aspects of transnational criminal law (TCL). This article argues that criminal lawunlike other areas of lawis fundamentally a state-oriented concept, leading to unique problems when implemented across state borders, especially for the individual facing penal power. A theoretical concept of TCL must therefore not only map extensions of state powers from high above, but also look for the individual's position in the possibly overlapping normative orders on the ground. The current predominant bird's-eye view must be modified according to the worm's-eye view. In doing so, the specific features and resulting problems of TCL will emerge. From this modified point of view, a main challenge is the establishment of a globally recognised coordination scheme, which will protect the legal position of individualsparticularly defendantsaffected by states exercising their ius puniendi across borders.

In this review article of Duarte d'Almeida (Allowing for Exceptions: A Theory of Defences and Defeasibility in Law. Oxford: University Press, 2015), I am going to survey and criticise the concept, philosophical background and legal applications of defeasibility and legal exceptions in law. Through critical engagement with Duarte d'Almeida's methodological assumptions and theoretical presuppositions, I shall identify a series of pressure points in the book's central claims and theses about the theoretical status of legal exceptions (defeaters). First, I will facilitate a proper understanding of HLA Hart's conceptual apparatus by pointing out its roots in the Oxford Ordinary Language Philosophy. Second, I will read Duarte d'Almeida's monograph against this background and facilitate a better understanding of the syntax of defeaters, Hart's original topic. Third, I will show that defeaters in criminal adjudication are part and parcel of a justificatory structure, whose main feature is the defeasibility of the respective exceptions.

In this paper, I suggest that we consider constitutionalism as an opportunity for contemporary Arab states. I begin by arguing that modern constitutionalism at its core involves the idea of government limited by a concern to restrict states' margins of manoeuvrability by imposing limitations on them in the name of rule of law and human rights imperatives. These limitations are articulated and defended, explicitly or implicitly, in the name of some higher normative order that embraces the primacy of individual freedoms and of equality.

Contents Acknowledgments vii Table of abbreviations xiii Chapter I Introduction I 1 ANew World? 1 V-2 Globalisation 4 3 Jurisprudence and law as a discipline 10 4 Overview 13 Chapter 2 General and particular jurisprudence: three chapters in a story 15

ABSTRACT Does Prado and Hoffman's concept of an international institutional bypass have explanatory force when applied to transnational non-state regulation? Drawing on three cases studies (Accord on Fire and Building Safety in Bangladesh, Equator Principles, ISEAL Alliance), this article submits the concept to a rigorous test. Specifically, it asks whether these three transnational regulatory regimes would count as international institutional bypasses according to the concept's six requirements. More importantly, it considers whether the concept illuminates—or fails to illuminate—the distinctive features of these institutions. This exercise demonstrates the explanatory power of the concept, but it also identifies some important vulnerabilities—the most important of which is the concept's attempt to eliminate the possibility of normative conflict among competing legal orders. This vulnerability can be corrected, but it requires a greater theoretical tolerance of ambiguity and a willingness to accept and embrace a legal pluralist reality that the concept implicitly disavows.

The article contrasts the image of the maladaptive fragmentation of international law with polycentrism as the new legal model of the unitas multiplex of international law. Whether international law is seen as fragmented or polycentric, hinges on the way it is cognised and understood by lawyers, and how its unity and normativity are justified. The vehicles of international law's structural resilience are the intellectual (ontological, epistemological, methodological) tools at the disposal of lawyers and legal scholars. However, the dominating meta-theories in legal scholarship: sovereigntism, universalism and systems theory are short of explanations maintaining the adequate unity of the system. The article explains how a Kelsenian mindset may be used to clarify the structure of the polycentric legal order. By utilising the idea of the purity and normative unity of law, the Neo-Kelsenian narrative reconnects different rationalities of public and private governance in one system of international law qua global law.

By analysing the mandate and the work of UNrelated criminal courts and tribunals in investigating and prosecuting those most responsible for mass atrocity crimes and in supporting related domestic transitional justice efforts, this article aims at assessing whether these efforts are just fleeting mirages of transitional justice or a piecemeal approach towards building a cosmopolitan justice model. To that aim, the article evaluates the role and contribution of key UNrelated criminal courts and tribunals towards developing a commonly shared concept and model of cosmopolitan justice which furthers peace and ensures the protection of populations from mass atrocity crimes, namely genocide, war crimes and crimes against humanity. The theoretical approach is based on Focarelli's argument that international law, seen as a social construct, can contribute in some measure to global justice. Ratner's standard of global justice, based on peace and human rights protection, is used as a general benchmark for the assessment of the activity of these international judicial institutions.

Abstract: This article has two main purposes. The first is to provide an introduction to Santi Romano's seminal work L'ordinamento giuridico, first published in 1917, in which the author develops the main tenets of his thought, namely institutionalism and pluralism. The first part of this essay accordingly provides an outline of Romano's theories; this account is intended to be sufficiently robust to benefit an English-speaking readership for which there is still no translated version of L'ordinamento giuridico available. Embedded within the overview of ...

Our contribution describes a reorientation in the intelligibility of governance practices authorised under international law. Observing the World Bank, we narrate new managerial attitudes and organisational routines that exhibit heightened 'risk appetites'. Risk and complexity are no longer seen as limiting conditions on the institutional project, but as co-constitutive elements and constructive tools, including new sets of heuristics aimed at governing with and through contingency and unknowability. The practices that we observe are characterised by adaptive, iterative and recursive routines, flexibly attuned to immanent possibilities and aims of resilience. We situate these changes in a genealogy of governmentality, focusing on the relation to a 'surplus of life', or unruly elements of populations that persistently escape productive incorporation into the closure of institutional programmes. The World Bank's turn to resilience as a particular rationality of reform signals an institutional attempt to enrol what has escaped prior efforts at determinate institutional intervention.

In the following article, I reconstruct the conditions of validity for claims of cosmopolitan authority and their corresponding judicial practices. I maintain that the authority of the law articulates the structure of a cosmopolitan constitution, overlapping at both the domestic and the international legal domain. It is worth noting that, whereas in the domestic sphere claims to both cosmopolitan and not cosmopolitan legitimate authority, are embedded within a preformed constituted unity of the law (constitution), in the transnational they perform a constituting function for legal integration (constitutionalism). Within the latter, pluralism remains unbound and the unity of international law turns into an interpretive taskone measured on the best account for the unity of international law. I consider, accordingly, that international law cannot be upheld by either surrendering to an idea of legal fragmentation characterized by irreconcilable conflicts among regimes, nor by a mere acceptance of an unmediated constitutional hierarchy. Here there seems to hold, instead, a partial overlapping between the two spheres, one which defines a basic structure between the domestic and the transnational. This common concern between the two jurisdictions is what gets articulated by the exercise of cosmopolitan authority.

The aim of the paper, based on empirical research in Brazil, is to investigate how supply chains have evolved over time, what factors have driven this evolution and also how a specific set of contractual practices along these chains is linked to access to international markets. The two selected case studies in the field of agriculture and aeronautics permit comparison between different modes of accessing international markets and GVCs; they illustrate the roles of transnational corporations and those of public institutions both at domestic and international levels in promoting access and determining its modes and potential spillover effects onto local production systems. More specifically, the research identifies the alternative channels of access to GVCs and international markets, and the institutional, legal and economic obstacles which prevent access or make it very costly. It looks at the role of intermediaries who control access to international markets, examining when they operate as gateways and when as bottlenecks. It examines both private and public actors, trying to disentangle when they facilitate and when they hinder access. It focuses on the most relevant factors that may attract foreign direct investments in human and physical capital to Brazil.

LINK TO THE VIDEO: https://www.youtube.com/watch?v=7PJmPohkX0U&t=301s

CHAIR
GIUSEPPE MARTINICO (SCUOLA SUPERIORE SANT'ANNA, PISA)
SPEAKERS
MARCO GOLDONI (UNIVERSITY OF GLASGOW)
MARIANO CROCE (UNIVERSITÀ DEGLI STUDI DI ROMA "LA SAPIENZA")
EDITORS OF THE BOOK SERIES “LAW AND POLITICS: CONTINENTAL PERSPECTIVES”
(ROUTLEDGE: HTTPS://WWW.ROUTLEDGE.COM/LAW-AND-POLITICS/BOOK-SERIES/LPCP)
DISCUSSANTS
LARS VINX (UNIVERSITY OF CAMBRIDGE)
GIOVANNI MARINI (UNIVERSITÀ DEGLI STUDI DI PERUGIA)
CESARE PINELLI (UNIVERSITÀ DEGLI STUDI DI ROMA "LA SAPIENZA")
FINAL REMARKS
ALESSANDRA DI MARTINO (UNIVERSITÀ DEGLI STUDI DI ROMA “LA SAPIENZA”

The government of Canada is engaged in a reactive legal exercise that seeks to address the crisis in affordable housing for Canadians, in particular with respect to the approximately 30,000 chronically homeless living on Canadian streets and in shelters. The National Housing Strategy (NHS) has committed the Federal government and certain provincial/territorial governments to halving that number over the next 10 years. 

Our thesis is that Housing First (HF) models, such as was adopted by the Finnish government in 2005, should be incorporated into the NHS because it has proven successful elsewhere

The proposed paper is more or less divided into two parts. The first deals with the situation in Canada vis-à-vis HF models and the proposed National Housing Strategy. The second touches on HF in the context of Finland’s national anti-homelessness strategy.

There will be a detailed discussion of the way that HF policies are developed and implemented in the Canadian context. HF is promoted across different levels of government in Canada, especially by municipal governments. However, this paper will attempt to demonstrate that such policies could be just as effective at the national/federal level, if such a model were based on successful examples of large-scale anti-homelessness programs elsewhere. 

Finally, the paper concludes with a section that examines the similarities and differences between Finland and Canada as it relates to the application of HF and housing rights. The objective will be to demonstrate that Finland is a good comparator with Canada for economic, social, political and legal reasons. This is not to deny significant cultural and constitutional differences between the two jurisdictions, in particular the absence of any recognized right to housing in Canada and the federal and jurisdictional division of powers, in particular regarding the regulation of property rights. And, finally, the strong influence of transnational and international legal norms on the Finnish architects of the national HF program.

This article uses Duncan Kennedy's analysis of legal reasoning to trace the discursive dynamics in DSD & NBV v Commissioner of Police for the Metropolis, a recent English case on rape and human rights law. Against a doctrinal background historically unreceptive to imposing civil liability on the police in relation to their role in investigating and suppressing crime, the article explores how the judge in DSD & NBV managed to reach a verdict favourable to the complainant rape victims. In particular, drawing on Kennedy's work on adjudication and legal reasoning, the article shows how the judge, Green J, 'worked' the legal materials, making a series of strategic moves which served to dislocate and reconstitute the core and penumbra of the relevant legal norms. As a result, a decision which might initially resemble judicial activism became, in the course of the judgement, an apparently inevitable outcome of the legal normative framework.

In this paper, I suggest that we consider constitutionalism as an opportunity for contemporary Arab states. I begin by arguing that modern constitutionalism at its core involves the idea of government limited by a concern to restrict states' margins of manoeuvrability by imposing limitations on them in the name of rule of law and human rights imperatives. These limitations are articulated and defended, explicitly or implicitly, in the name of some higher normative order that embraces the primacy of individual freedoms and of equality.