Researching Transnational Legal Orders By Terence C. Halliday and Gregory Shaffer

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Transnational Legal Orders
By Terence C. Halliday and Gregory Shaffer
The concept of transnational legal orders (TLOs), and the framework erected around that concept (Chapter 1), opens up many avenues for empirical research and theoretical development regarding law and legal orders.

The empirical chapters in this volume concomitantly constitute a set of case studies across highly variegated areas of law and bring with them a generativity of research agendas, hypotheses, and questions, which must launch further rounds of inquiry. The studies open up a rich vein of prospects and problems that implicate the full spectrum of past, present, and prospective TLOs across substantive areas.

This concluding essay teases from the case studies a number of themes that clarify and enrich our understanding of TLOs and their scope, settling, alignment, institutionalization, and impacts. The themes covered are not exhaustive, but they exemplify the dynamics of TLOs and their framing, rising and falling, generation and propagation, contestation and resistance, structuring and nesting, mapping and moralities. We proceed by extracting from the chapters categories, hypotheses, and questions about these dynamics in order to open up the landscape of future research. For convenience, we list the hypotheses in Annex 1.
A. Defining TLOs

New concepts make it possible to see the world in new ways. The concept of a transnational legal order (TLO), as any concept, may be defined in terms of what it is and in terms of what it is not. Chapter 1 endeavors to establish the former. Here we clear away any underbrush of misperceptions about TLOs that may arise from our definitional choice.

To recapitulate (see Chap. 1), we define a TLO as a collection of formalized legal norms and associated organizations and actors that authoritatively order the understanding and practice of law across national jurisdictions. The concept has three elements. TLOs:

1) seek to produce order in an issue area that relevant actors construe as a “problem”;

2) are legal insofar as they adopt legal form to address the problem, their norms are produced or conveyed in connection with a transnational body or network, and they directly or indirectly engage national legal bodies; and

3) are transnational insofar as they transcend and permeate state boundaries in one way or another.

The concept of TLOs focuses researchers and practitioners on how social problems are conceived and ordered through law, and how that legal ordering transcends and penetrates state boundaries. TLOs vary in their geographic and substantive legal scope, producing multiplicities of legal orders variably spanning the globe. They rise and fall through a combination of facilitating circumstances and precipitating conditions.

TLO theory and empirical research does not look solely at international or transnational law — the traditional approaches of much of international law and international relations scholarship. Rather it assesses how these legal norms settle and become aligned at three levels — the transnational, national, and local — and how norm-making at these three levels interacts dynamically and recursively over time. The degree of institutionalization of a TLO thereby involves an interplay of (a) norm settling within and between the three levels and (b) alignment of a given TLO, often in complex relations with other TLOs or systems of norms, as they seek to address underlying issues or problems. The degree of institutionalization in turn shapes five impacts on behavior: of the transnational on the national and local; of the local and national on the transnational; of one state on another; of one TLO on other (and prospective) TLOs; and of transnational legal orders on other kinds of orders, whether social, political, or religious, among others.

Three potential misunderstandings must immediately be addressed.
Formal Properties

It is a defining characteristic of a TLO, as the concept is deployed in this volume (Chap. 1), that it must exhibit formal properties. That is, the norms in a TLO must involve international or transnational organizations or networks: directly or indirectly engage multiple national and local legal institutions, and be expressed in a recognizable legal form. Two objections can immediately be registered to this definitional stipulation.

First, there are many norms that might have influence on legal actors or legal behaviors or outcomes subject to legal regulation which in themselves are not explicitly legal. This is true. These norms undergird political and religious and social orders of many kinds and are the conventional research domains of many anthropologists and sociologists, among others. Nevertheless, to get purchase on what is already an enormously complex phenomenon — the legal ordering of behaviors in diverse issue-areas across vast spaces — we consciously demarcate our sphere of explanation to that which is legal in our terms, a demarcation indeed which might already be considered excessively expansive (see Bodansky, Chap. 8).

Second, there are systems of norms that legal anthropologists and others designate as legal norms but they fall outside the three-fold stipulation above even though they order the affairs of peoples the world over. We do not question the ubiquity of legal orders of peoples and tribes and religious groups which have never been formalized and which bear little or no relationship to any formal legal institution. Such legal orders feature in studies of legal pluralism and are richly explicated in the long history of legal anthropology. They have substantial potential consequences for TLOs and indeed might even be generative or formative in shaping TLOs (see below), but for heuristic purposes they are a bridge too far in the current stage of building TLO theory.

Not Simply Transnational Norms

International lawyers, among others, might readily conflate a set of transnational norms, especially if settled, with an institutionalized TLO. From a behavioral vantage point, this mirrors a classic fallacy of many international law studies — to suppose that international legal norms, authoritatively formulated and codified in legal form, thereby amount to a legal order, or in our case to a TLO. Social science research in all its diversity contests this conflation just as we reject its assumptions. TLO theory differs from regime theory in that transnational legal norms, thoroughly settled and uncontested at the transnational level, do not thereby constitute a TLO until some evidence can be adduced that the transnational norms are reflected in national legal norms, and that national legal norms place their imprint on local legal norms, and there is some degree of normative concordance among these several levels (Chap. 1).

Hence we also reject a fallacy of some political science and sociological research that suggests that the adoption of transnational norms into national law would constitute a TLO.1 Such adoptions might presage the emergence of a TLO if norms penetrate to the local level; or, if norms from the local or national levels eventually become adopted in international organizations (IOs) or networks. But we insist that settled norms at any level — transnational, national, local — or a concordance of norms at any two levels (e.g., transnational and national, or national and local) do not constitute a TLO. A TLO, as an ideal type, requires institutionalization derived from concordant settling and alignment at all three levels of norms.

The Hegemonic, Counter-Hegemonic, and Non-Hegemonic

The diversity of TLOs encompassed in this volume does not fully represent the range of possibilities. This book encompasses three broad clusters of law — business law, regulatory law, and human rights law — but includes only a few subjects within those areas. It has only one case study of a TLO that is at least in part privately generated, and that TLO involves what Rajah calls a “meta-TLO” that has implications for all other legal orders (see Rajah, Chap. 10 on the World Justice Project and its construction of a “rule of law” TLO). It otherwise includes no TLO that is privately generated as through a non-governmental organization, a private trade association, or one or more multinational corporations that throw a shadow over commercial contracts and commercial behavior.

Even less does this book offer examples of TLOs that might be labeled “counter-hegemonic” (De Sousa Santos 2005; De Sousa Santos, Twining and McCrudden 2002); that is, TLOs that emerge from the Global South, that knit together countries in a region of Africa or Latin America or developing countries in Asia, and may or may not have coordinating IOs that settle legally ordered behavior in the relevant jurisdictions. There is thus a danger that the concept of TLOs may be thought to be inherently hegemonic (Rajah, Chap. 10) or coterminous with imperative orders erected from “above” and imposed on states and local actors.

We emphatically insist that it is not the case that the concept of TLOs is inherently hegemonic, nor that TLOs themselves are necessarily hegemonic and imperatively organized. To the contrary, we propose both that the concept of TLO is a tool that can be used for anti-hegemonic purposes and a TLO itself can be anti-hegemonic in its legal norms and impact.

Conceptually, to investigate a TLO requires unmasking and unveiling the power that is infused into transnational norms and institutions, in national politics and legal institutions, and in local norms and social practices. Insofar as TLOs involve concatenations of power, which we assert is always the case, then whose power becomes a fundamental topic of investigation. For instance, it is always necessary to ask whose norms prevail in the several levels and spaces of a TLO. This question can be asked in pursuit of critical inquiry (Darian-Smith 2013), as well as for sociological analysis.

In the case of critical inquiry, the TLO concept offers a new tool for unmasking hidden and veiled exercise of power in legal orders. Repeatedly in this volume, authors show the exercise of power in the crafting, propagation, contestation, institutionalization, and impact of TLOs. No “hegemonic” actor in TLOs is missing from these pages. Critique of hegemony in TLOs therefore must be part of any critical project to reveal the contours of power, often disguised as technically neutral, in the rise and fall of TLOs. The concept of TLOs itself calls attention to a configuration of power exercised through law that is commonly under-estimated and over-looked in studies of globalization more generally. The study of “globalized localisms,” as Santos has so aptly labeled hegemonic projects emanating from powerful states or organizations, must be integral to TLO inquiry (Santos 2000).

More importantly, the concept of TLOs has the theoretical power to capture legal orders that emerge from “below,” legal orders that counter-pose global power with regional power, advanced economies with blocs of developing economies, the power of global capital with the claims of indigenous peoples, the power of warlords armed with weapons supplied by powerful states and the power of persons armed with little more than law. Hence a TLO could be erected by countries or communities seeking ecological protections in the Amazon Basin; by peoples of First Nations who seek property rights over herbal remedies; by peoples once treated as subhuman and who now demand redress for seized property, or mass expulsions from their homeland, or mass death; or peoples seeking to restore ancient linguistic and cultural and legal bonds even though they now are partitioned among different nation-states; by economic legal orders that refuse to charge interest on loans; by tiny island states and peoples who claim ancient customary rights over fish and sea-life. This counter-hegemonic form of TLOs sets in motion a different kind of contest: TLOs with their origins and provenances in the local now confront national legal orders or rival TLOs firmly anchored in the institutions of the global. In more precise ways it becomes possible to plot the struggles between TLOs emerging from the Global South and those that originate in the Global North.

Not least, this research imperative to discover and plot the trajectories of counter-hegemonic TLOs brings into closer conversation, on the one hand, anthropologists and local historians, area specialists and experts on indigenous peoples, field workers and researchers intimately familiar with the “local,” with, on the other hand, international lawyers and IO specialists, quantitative sociologists and comparative political scientists, ethnographers of the “global” and international political economists. A wide gulf exists in counter-hegemonic literature between references to the counter-hegemonic as a concept and empirically rich instantiations of counter-hegemonic institutions and TLOs (cf. (Darian-Smith 2013).2 Counter-hegemonic TLOs are often raised as hypotheticals, but without pointing to living examples. Efforts often fail. For example, Genschel and Rixen show how developing countries promoted alternatives to the OECD double-taxation TLO, including through the Commonwealth, the Latin American Free Trade Association, and the United Nations, but these efforts were dropped, blocked, or stealthily absorbed into the OECD process.

Even more challenging is the task of identifying hegemonic and counter-hegemonic TLOs within the Global North and within the Global South. The emergence in the Global North of the Forestry Research Council (Cashore, Auld, Bernstein and McDermott 2007) or the Landmine Treaty (Cameron, Lawson and Tomlin 1998) or the anti-slavery (Martinez 2012) or green movements (Keck & Sikkink 1998) may all be seen as insurgent counter-hegemonic movements in their origins — and movements whose institutionalization emerged out of waves of conflict and contest with powers commonly labeled as hegemonic. Likewise, legal hegemony commonly has a local face — the economists in the Finance Ministries trained at MIT or the University of Chicago economics departments, or the Justice Department officials with LLMs from European and North American law schools, or the local citizen employed by an international non-governmental organization (NGO) or international financial institution, or the local employees of the MNC. Here the contest can appear less between two vertically organized transnational TLOs and more between a dominant TLO and an insurgent TLO within the Global North or South. Moreover, transnational norms, such as regarding women’s rights, may be deployed by local activists to challenge existing local hegemonic orders, such as in patriarchal or caste societies. That is, a transnational TLO can be viewed as counter-hegemonic within a local context by destabilizing local power elites.

Finally, it must be noted that regional or area or specialized TLOs may arise de novo, not because they are designed to be counter-hegemonic, but because they are designed to solve a local problem in the absence of other solutions. If a TLO generated by hegemons later emerges, and is constructed around competing legal norms, then a previously existing regional TLO may find itself becoming counter-hegemonic. By the same token, a TLO may emerge from local commercial practices and itself become hegemonic. An example might be OHADA’s3 relatively successful project to harmonize business law among seventeen African states (Macdonald, Chap. 3) which, depending on how widespread commercial uptake is, might later come to be seen as an alternative, even counter-hegemonic, TLO to that propagated by UNCITRAL. Similarly, the 1979 Andean Treaty establishing the Andean Tribunal of Justice initially addressed intellectual property protection among the Andean countries as a regional agreement, but after the rise of U.S. bilateral initiatives to enhance protections beyond those required by multilateral rules, it could be viewed as a counter-hegemonic TLO, providing a “bulwark against powerful foreign interests that have pressured individual governments to go beyond … WTO-compatible rules” (Helfer et al 2009, 34).

B. Framing TLOs

Since TLOs involve bundles of meaning which produce legal order in issue-areas across national boundaries, the discourses and frames of TLOs are integral to every aspect of their dynamics. Five themes, hypotheses or research questions arise across the legal areas canvassed in this volume.

First, a general hypothesis emerges (B1) that the discursive form of norms vary and those variations matter (Merry, Chap. 11). At the transnational level many norms are expressed in multilateral conventions where states bind themselves, at least in declared intentions, to courses of action (Shaffer & Waibel, Chap. 5; Payne, Chap. 13; Lloyd & Simmons, Chap. 12). While conventions may be written very precisely they can also be written in aspirational or open-ended language.

While aspirational and open-ended language may have merits (see below), in the past fifteen years it has led to forms of what Merry (…) calls translation. In human rights TLOs, norms originally expressed in the UN Universal Declaration of Human Rights and subsequent human rights conventions have been translated into indicators, which, as Merry (Chap. 11) and Rajah (Chap. 10) show, can fundamentally change their meaning. Merry opens up an evocative research agenda on the seductions of discourse where, for instance, a move from broad norms to very precise indicators offers, according to Merry, “the illusion of knowledge” and a pretense of knowing “a world that is unknowable” (Merry, Chap. 11, p [18]). The process of translation of broad norms into precise indicators raises the following research question for all TLOs — what forms of norms are going to provide a competitive advantage to norm entrepreneurs in their efforts to institutionalize or destabilize a TLO? That choice involves the question of audience. The form of norms emanating from IOs may vary sharply if the key target audience in a state is the Finance Ministry versus the Justice Ministry versus a welfare ministry. And they may vary again depending on who are the local actors who generate or receive norms that affect practice, such as political and business elites, civil society groups, or private legal practitioners.

In finance and monetary TLOs, aspirational norms such as “financial stability” have been translated into diagnostic instruments for global financial surveillance, most notably exemplified by the Reports on the Observance of Standards and Codes (ROSCs) undertaken by all IMF and World Bank members regarding twelve areas thought to be critical to protecting international financial stability (See Shaffer & Waibel, Chap. 5; Helleiner, Chap. 6; Halliday, Levi and Reuter 2014). Sometimes these instruments involve indicators and sometimes they do not. But they nonetheless function as normative devices that can ‘discipline’ countries into formal compliance, if not actual compliance in practice. For concordance in TLOs (Block-Lieb/Halliday, Chap. 2), this distinction is critical, since it exposes a common configuration across the world where there is formal concordance in settling between transnational and national legal norms, but discordance (Halliday, Levi and Reuter 2014) between the national norms (e.g., those promulgated by a Central Bank or Financial Intelligence Unit) and local norms and practices, which settle in incipient tension with national and transnational norms. This phenomenon opens up a wide research agenda on (a) ways that diagnostic instruments become mechanisms for TLO construction from above; and (b) the extent to which diagnostic instruments are reinforced by translation into indicators.

Second, discourse and frames in TLOs are infused with theoretical and ideological content that very often remains implicit or unexamined. Several types of inquiry, such as scholars deploying critical discourse analysis (e.g., Rajah, Chap. 10; van Dijk 2003; Blommaert and Bulcaen 2000; Fairclough 2006), are necessary to reveal this content. In the process, TLO discursive analysis can bring to the surface particular attributes of TLOs for critical examination, such as:

(1) Underlying assumptions, theoretical logics, conceptual ambiguities, hidden contours of power, infuse TLOs. It is a plausible hypothesis (B2) that unsettling is more likely to occur where implicit theories and logics underlying TLO norms are shown to be erroneous or lead to demonstrable adverse effects.

(2) TLOs that are erected on normative standards from above are infused by ideologies, such as those underlying the New International Financial Architecture (Helleiner, Chap. 6), the World Bank’s Doing Business indicators (Rajah, Chap. 10), or U.S.-driven legal/financial ideologies of credit (Macdonald, Chap. 3). TLO discursive analysis requires critical inquiry to unmask those ideologies. Such scrutiny is similarly necessary for counter-hegemonic TLOs (Darian-Smith 2013).

(3) Since TLOs always involve configurations of power, where norms at any level are likely to have distributive consequences, it is necessary always to inquire of TLO discourses and counter-discourses (a) who benefits, and (b) who is harmed from their effects of TLO institutionalization.

TLO analysis should always, therefore, be in a critical posture, inquiring of every frame and testing every expression of meanings, by asking what are their distributive consequences, and how those consequences will affect the rise or fall of TLOs.

Third, several of the chapters argue that form and content of a frame will affect settling, alignment, institutionalization, and outcomes. The over-arching research question becomes: what attributes of a frame contribute to the ascendancy of a frame? Several hypotheses emerge from the TLO collaboration. Merry proposes (B3) that a frame may be more readily adopted and adapted if it is rendered in “vague and visionary” form than in “fixed and measurable” terms (Merry, Chap. 11, 19). This hypothesis intersects with the wide-ranging debate among scholars on the relative merits of principles versus rules, and hard versus soft law, in different areas of global regulation (Braithwaite 2002). In parallel but with a different focus is another hypothesis (B4), that the potency of indicators gives rise to greater formal compliance of states with transnational legal norms, but simultaneously widens the gap between national versus local norms and practices. We can derive from Merry and Payne the further hypothesis (B5) that the adaptability of TLOs will be impaired by the fixed meanings of indicators or the fixity of meanings of norms. In Merry’s terms, rigid meanings can “inhibit flexibility and adaptation to context” (Merry, Chap. 11, 2), the classic mismatch which occurs when TLOs from-above seek to impose square pegs in round holes (Andrews 2013). It might also be hypothesized (B6) that the shift of a discourse from a narrower frame to a broader frame increases the probability of national and local acceptance (Merry, Chap. 11, 8), not least because the broader frame may attract greater resources (Lloyd/Simmons, Chap. 11, 17-19).

Here two kinds of affinity appear to affect the efficacy of frames. Lloyd and Simmons (Chap. 12, 20) hypothesize (B7) that transnational consensus on a narrower issue (e.g., human trafficking) is more likely when it can draw on a broader already prominent and established frame (e.g., transnational crime). A related hypothesis expresses “prominence” in terms of the actors that propagate or may be veto players over adoption of discourses and frames at any level. It may be hypothesized (B8) that the greater the power of actors proposing (or able to block) frames, the greater (or lesser) the probability of their institutionalization and impact, although this hypothesis becomes circular unless power is measured independently of its expression vis-à-vis erection of the particular TLO. For instance, Lloyd and Simmons (Chap. 12, 21) suggest that the human trafficking TLO has a greater probability of acceptance if business signs on. Not least, we can hypothesize (B9) that if a discursive frame from-above — such as a criminal law frame — enhances (i) state sovereignty, or (ii) executive power within states, then it is more likely to be acceptable to national authorities.

Fourth, the rise and fall of TLOs, and differentiation in the concordance of settled TLO norms and their alignment at various levels, frequently arise out of contests among discourses and frames (see below on Contesting TLOs). There are rich research opportunities to be pursued. Helfer’s (Chap. 9, 3) account of struggles for access to medicines among economic, moral and health frames, poses the question: when will moral discourses prevail over economic discourses, or ideal discourses over material discourses? It could be hypothesized, following Helfer, (B10) that a moral or health discourse will prevail when the magnitude of harms its proponents can document (e.g., deaths from HIV/AIDS) far exceed the benefits or claims by carriers of economic discourses. But power asymmetries (e.g., between multinational pharmaceutical companies and poor blacks in South Africa) suggest (B11) that counter-discourses will only be effective when propagated by actors capable of collective action (e.g., through religious organizations, NGOs, or social movements) or the shaping of public opinion (e.g., by media) and influence upon political will. Who are the carriers of discourses becomes a critical question for explaining which discourses prevail in framing contests. Another hypothesis addresses not which discourse prevails, but what are the consequences of unresolved discursive conflicts and framing struggles. Consistent with recursivity theory, Merry hypothesizes (B12) that if contradictory or conflicting discourses remain active, each championed by vocal or powerful shapers of global public opinion and policy, then settling and institutionalization are likely to be impeded (Chap. 11, 21). However, Helfer (Chap. 9) alternatively hypotheses (B13) that where the two TLOs norms in tension with each other can both be applied, they can even further constrain states (in his study, states have to recognize both patent rights and the social right to obtain medicines at government expense).

Fifth, there are temporal dimensions to discourses and frames which require that

TLO theory and research should be always historically situated. Shaffer and Waibel (Chap. 5: 21, 26) hypothesize (B14) that a crisis, shock, or geopolitical shift may compel a re-appraisal or undermining of a prevailing ideological discourse and impel the search for a replacing frame. Long episodes of shifting discourses on capital controls moved from more controls under the Bretton Woods system (Keynesian theory in response to the Great Depression concerned about the frame of monetary stability) to less controls (neo-liberal theory in response to the decline and end of the Cold War concerned about increased liquidity for economic growth), and then again back to a consideration of more controls (in response to the financial crises of 1997 and 2008). Here changing historical events or movements may work more to the favor of some frames over others. The observation by Lloyd and Simmons that the human trafficking frame gained prominence after the fall of the Berlin Wall, and in the context of weak and transitioning states, suggests (B15) that a frame or discourse will shift if changing socio-political circumstances have a greater fit with one frame versus another. If historical and contextual circumstances influence frame shifts, it should also be expected (B16) that frame shifts will always be temporally and contextually contingent such that sharply changing circumstances over time or sharply divergent circumstances across the world will lead to the failure of TLOs to settle or align, or to settle or align discordantly, or to the unsettling and misalignment of existing TLOs.

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