This panel was convened at 9:00 a.m., Thursday, March 31, 2016 by its moderator Gregory Shaffer of the University of California Irvine School of Law, who introduced the panelists: Terence Halliday of the American Bar Foundation; Hannah Buxbaum of Indiana University Maurer School of Law; Tom Ginsburg of the University of Chicago Law School; and Paulette Lloyd of the U.S. Department of State.
INTRODUCTION AND CONTEXT
By Gregory Shaffer *
This panel addressed the issue of theorizing transnational legal orders (TLOs). It was cosponsored by the international legal theory, international economic law, and government attorneys interest groups of the American Society of International Law.
The panel was inspired by the edited volume by myself and Professor Terence Halliday entitled Transnational Legal Orders (Cambridge University Press, 2015). The book has some precedents in the work of important international law scholars, in particular Judge Philip Jessup and professor and former Legal Advisor of the U.S. Department of State Harold Hongju Koh. In his 1956 Storrs Lectures, Jessup famously broadened attention from traditional public international law to what he called "transnational law," which he defined as all law that "regulates actions or events that transcend national frontiers," thus including public international law, private international law, and "other rules which do not wholly fit into such standard categories." (1)
Dean Koh refocused attention from transnational law as a body of law to transnational legal process, which, to quote him,
describes the theory and practice of how public and private actors--nation-states, international organizations, multinational enterprises, nongovernmental organizations, and private individuals--interact in a variety of public and private, domestic and international fora to make, interpret, enforce, and ultimately, internalize rules of transnational law. (2) In our book, we turn attention to the rise and fall of "transnational legal orders" from a socio-legal perspective. We define TLOs as a collection of formalized legal norms and associated organizations and actors that authoritatively order the understanding and practice of law across national jurisdictions. As Halliday explains below, these orders involve the interaction of lawmaking and practice at the transnational, national, and local levels, giving rise to the settlement and unsettlement of legal norms across national jurisdictions. We thus do not focus only on international regimes and international law at the international level. We rather address the interaction of international law, national law, private standard setting, and local practice.
In the book, we explain how our theoretical framework compares with regime theory in international relations and its offshoots, as well as other theoretical approaches. (3) Our theory builds from regime theory, as it does from the legal frameworks of Judge Jessup and Dean Koh. Yet it also differs from regime theory, particularly in the following three ways. First, while regime theory focuses on international relations and does not integrate domestic politics in its analysis of normative development and change, domestic law and politics are endogenous to TLO theory. Second, while regime theory is nation-state-centric, TLO theory does not posit unified nation-states and does not focus on states as the sole relevant actors in creating TLOs. Rather, TLO theory calls attention to the fragmentation and disaggregation of the state in its constituent branches and agencies, as well as to the key role in TLOs of private actors, such as professional lawyers, business associations, and nongovernmental organizations. Third, while regime theory did not directly address law and law's normativity, (4) TLO theory foregrounds the role of law, legal norms, legal institutions, and legal reasoning.
In the remainder of this session, Terrence Halliday first introduces the theoretical framework of transnational legal orders and notes how it can be applied across different domains of law. Paulette Lloyd then presents her work, with the political scientist Beth Simmons, in which they use the TLO framework to assess the development of a TLO to address human trafficking. Hannah Buxbaum then applies the framework to address the area of derivatives regulation as part of a transnational financial legal order, one that remains decentered engaging private international law. Tom Ginsburg concludes by presenting his assessment of the transnational elements of national constitution making, for which he has coordinated a symposium with Professor Halliday and myself, at the University of California, Irvine School of Law, cosponsored by the American Bar Foundation.
THE THEORY OF TRANSNATIONAL LEGAL ORDERS
By Terence C. Halliday **
What Are Transnational Legal Orders?
A transnational legal order (TLO) arises when actors seek to solve problems that span national borders by legal means. The spectrum of problems is, in principle, open-ended. Efforts to create TLOs by individuals, states or nonstate actors have been directed to international commerce (e.g., liability in carriage of goods by sea, trade wars), finance (e.g., double taxation, lack of credit and capital in domestic markets, bank failures), business failures (e.g., restructuring of failing corporations), health (e.g., access to lifesaving medicines, food safety), human rights (e.g., human trafficking, atrocities in civil conflicts), environmental degradation (e.g., climate change), and failed political and legal institutions (e.g., rule of law). Therefore, any social, economic or political issue that norm entrepreneurs can successfully frame as a "problem" to be solved in whole or in part by law may become a terrain for construction of a TLO.
A TLO Has Three Defining Properties
First, it is transnational insofar as it produces order through means and with effects that transcend the nation-state. Beyond the state can vary greatly in scope and combination, from bilateral to multilateral relationships within and across regions, to regional legal orders, to international and global legal orders.
Second, a TLO is legal insofar as: (1) its ordering norms proceed from law-producing institutions; and/or (2) the norms themselves are in legal form and thereby carry the rhetorical authority of "law;" and/or (3) the norms are directed to legal institutions inside the state, whether nationally or locally. At the transnational level those norms include varieties of hard law (e.g., multilateral conventions) and soft law (e.g., model laws, legislative guides, standards, best practices, principles, etc.). At the national level, they include statutes, regulations, court rulings, and codified nonstate standards. At the local level, they can include municipal ordnances, state laws, standardized contracts, and client advice newsletters.
Third, a TLO brings order insofar as it produces norms that seek to create regularities and predictability in behaviors which themselves are expressed in discernible patterns.
By definition, a TLO creates legal order simultaneously within and beyond the state. More systematically, a TLO will simultaneously involve the concordance of legal norms: (1) beyond the state, whether multilaterally, regionally, globally; (2) by the state, in its national lawmaking institutions; and (3) locally, in states within federations or local governments such as municipalities.
When Is a TLO Fully Institutionalized?
A TLO will be considered fully institutionalized when legal norms are settled at multiple levels of social organization and aligned with an underlying problem or issue area.
Settlement can be defined empirically as the relative stability or certainty that a given set of legal norms or standards will apply in the resolution of a particular problem. This is a formidable challenge for lawmakers. It requires that legal norms attain some reasonable degree of predictability at transnational, national, and local levels. It further requires that there be discernible degrees of concordance in the content of legal norms so that it can be observed that local norms are largely similar to national laws and national laws converge
substantially with transnational legal norms. Many TLOs in-the-making weakly approximate concordance. Very commonly there is strong concordance between transnational norms and states which adopt them into state law, but the legal norms never penetrate deeper into the nation-state to change behavior or practice. Quite commonly, local actors, such as indigenous peoples, adopt norms consistent with United Nations legal norms against the objections of state authorities who refuse to adopt them. And many state and local jurisdictions have adopted norms that deviate from transnational standards.
Alignment can be defined as the degree to which a transnational legal order fits the "space" of the underlying problem or issue area it confronts. For instance, empirical cases show there may be: (1) a correspondence between an underlying issue area and a TLO that seeks to encompass that issue area entirely, such as the norms on double taxation; or (2) partition, whereby a number of mini-TLOs divide an underlying issue area, such as climate change; or (3) competition, such as multiple contending TLOs that seek ascendancy in their proposed solutions to an underlying problem.
The conceptual dimensions of settlement and alignment create a two-dimensional space with four possibilities: (1) TLOs in-the-making whose norms are well settled but not well aligned with the scope of underlying problems (e.g., global legal norms on secured transactions law); (2) TLOs under construction whose norms are not settled but are potentially well aligned with an underlying problem (e.g., multilateral convention on carriage of goods by sea); (3) weakly institutionalized TLOs where norms are not settled, nor are they clearly aligned with an underlying problem; and...