Transnational Legal Process and State Change: Opportunities and Constraints



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FOR DISCUSSION PURPOSES ONLY: Draft 5/19/17
Transnational Legal Process and State Change:

Opportunities and Constraints

by Gregory Shaffer1

Abstract: This essay sets forth and applies a socio-legal approach to the study of transnational legal processes and their effects within countries. It builds its analytic framework from empirical studies of transnational legal processes’ differential impacts in six regulatory areas in a range of countries in Asia, Africa and South America. The essay defines the concepts of transnational law, transnational legal process, transnational legal order, state change and transformation, and recursivity. It sets forth five dimensions of change that transnational legal processes can spur within states —changes in substantive law and practice; broader shifts in the boundary between the state and the market; changes in the architecture and allocations of authority among state institutions; the development of new markets for expertise; and shifts in accountability mechanisms and their attendant normative frameworks. It contends that variation in the impacts of transnational legal processes can be assessed as function of three clusters of factors — the legitimacy, clarity and coherence of the transnational legal norm; the relation of the transnational legal order to the receiving state in terms of power and the place of intermediaries conveying the legal norm; and the affinity with demands of domestic elites and other constituencies in light of domestic political struggles and the extent of change at stake. It introduces five empirically-grounded socio-legal studies that illustrate the interaction of transnational and national legal processes, and the extent and limits of transnational legal processes’ effects.

Table of Contents
Introduction

I. The Concepts of Transnational Law, Change and Recursivity

A. Transnational law, legal process and legal orders

B. Change and Transformation

C. Transnational Legal Process and Non-Legal Factors in State Change

D. Recursivity
II. A Typology of Transnational Transformations: Changes in the State/Market Border; Institutional Architectures; Markets for Expertise; and Accountability Mechanisms and Normative Frames

A. Change in national law: enactment and practice

B. Changing the boundary of the state and the market

C. Shaping new architectures of institutional authority

D. Shaping new markets for expertise

E. Shifts in accountability mechanisms and normative frames
III. The Factors Explaining the Location and Extent of State Change

A. Mechanisms for Change: The relation of a transnational legal order’s power and legitimacy.

B. Variation in transnational law’s clarity and coherence

C. Harnessing historic events

D. Power asymmetries and intermediaries

E. Affinity with domestic demands in light of domestic struggles and the extent of change at stake
IV. Transnational Legal Process and Recursivity
V. The Five Case Studies
Conclusion

Introduction

Legal norms in almost all domains of law circulate around the globe. The norms don’t travel by themselves. They are conveyed by actors, whether instrumentally or reflexively. They are sometimes codified in international treaties, whether of a binding or non-binding nature. At other times they are diffused through informal processes involving bureaucratic networks of public officials, transnational networks of private actors such as business representatives, non-governmental activists and professionals, and hybrid combinations. Over time, distinct transnational legal orders may emerge that impose or provide legal norms governing particular areas of law. Where the transnational legal norms are relatively clear, coherent and accepted, the transnational legal order can be viewed in systematic terms. Where they are less so, the transnational legal order is more contingent and fragile. The effects of transnational legal norm conveyance, however are not homogeneous across states. They vary in light of identifiable factors. Transnational legal processes, the processes through which these norms are carried and conveyed, always confront national contexts which may block, adopt, translate or appropriate a transnational legal norm, and spur its reassessment. This introductory essay provides a socio-legal framework for assessing transnational legal processes and their variable impacts within states, with a particular focus on developing countries. It identifies five dimensions of state change resulting from transnational legal processes, and three clusters of factors that affect their extent, location and timing.

The essay inductively builds from five comparative empirical studies that follow, each of which are grounded in close attention to regulatory struggles and changes in developing countries. Each illustrates socio-legal approaches to how transnational legal processes work and interact with national law and institutions. Through the comparative framework, the studies examine variation in the reception and appropriation of transnational legal norms in six different regulatory domains in countries in Asia, Africa and South America, thus concurrently evaluating the limits of transnational law. They cover the following countries and regulatory fields:
 Bankruptcy law in China, Indonesia and Korea, by Terence Halliday;

 Patent law and competition law in South Africa, by Heinz Klug;

 Anti-money laundering law in Brazil and Argentina, by Maira Rocha Machado;

 Municipal water services regulation in Chile, Bolivia and Argentina, by Bronwen Morgan; and

* Primary education law and policy in low- and middle-income developing countries, by Minzee Kim, Elizabeth Boyle and Kristin Haltinner.
The studies were chosen based on their coverage of a range of legal domains in a range of countries. Many studies of law and globalization have focused on OECD nations, and these studies thus help fill a gap. The countries vary in terms of their power relations with sites of transnational lawmaking (from China and Brazil to Indonesia and Bolivia), their institutional legacies and their political and cultural contexts. The regulatory areas likewise vary from financial and business regulation to social and economic rights. Most importantly, each of the studies builds from long-term empirical research projects that engage with the interaction of transnational law and developing countries.

Each of the studies is conducted within a systematic research design that examines the interaction of transnational and national legal processes in particular regulatory domains in different countries over time. Each study compares different countries’ responses in a single regulatory area (or in one case, that of Klug, a single country and the interaction of two regulatory areas), so that the authors can assess variation in transnational influence.2 Four of the studies entail field work involving participant observation and intensive interviewing of relevant actors. The fifth study (by Kim et al.) uses quantitative methods together with an historical analysis, to assess the relative impacts across over seventy low-income and middle-income developing countries of conflicting human rights and neoliberal development norms over a twenty-one-year period. Overall, the methods used include systematic interviewing, participant/observation, ethnography, documentary evidence, archival research and surveys, as well as (in one case) quantitative regression analysis.

This essay conceptualizes and provides a map for what transnational law is and does. It gives specific examples from the accompanying studies to illustrate its points.3 Although the case studies in this volume focus primarily on a range of developing countries, the analytic framework used and the dimensions of change and variables assessed should apply across countries and regions, including the United States (U.S.) and European Union (EU).4 The primary difference between the U.S. and EU and the countries studied in this volume should lie in the direction of transnational flows, with the U.S. and EU more likely being producers of transnational legal norms, as opposed to primarily being appropriators of them.

The essay is in five Parts. Part I defines and explains the key concepts used in this essay, transnational law, transnational legal process, transnational legal orders, state change and transformations, and the recursivity of these processes. Part II sets forth and examines five dimensions of change within states that transnational legal processes can spur — changes in substantive law and practice; shifts in the boundary between the state and the market; changes in the architecture of institutional authority within the state; the development of new markets for expertise; and shifts in accountability mechanisms and normative frames.

Parts III contends that variation in the impacts of transnational legal processes can be assessed as function of three clusters of factors — the legitimacy, clarity and coherence of the transnational legal norm; the relation of the transnational legal order to the receiving state in terms of power and the place of intermediaries conveying the legal norm; and the affinity of the transnational legal norm with domestic demand in light of domestic political contests and the extent of change at stake. These factors determine the extent and limits of transnational law’s impact. Part IV notes how national responses to transnational legal processes, including in less powerful states, can spur reassessments of the transnational legal norm in question, resulting in dynamic, recursive processes. Part V introduces the five studies and the conclusion highlights five points.
I. The Concepts of Transnational Law, Change, Transformation and Recursivity

We first need to define and clarify the key concepts used in this essay’s approach to assessing transnational legal processes and state change: those of transnational law, transnational legal process, transnational legal orders, change, transformation and recursivity.


A. Transnational law, legal process and legal orders. Since the rise of sovereign states in the seventeenth century associated conventionally with the Treaty of Westphalia, law has been associated with state law and national legal systems. Law, as John Glenn writes was “an essential element… of national construction,” and public international law was based on and came into existence with the creation of states, governing their relations and providing for their mutual recognition.5 Private international law provides complementary rules and standards to govern situations where more than one state asserts authority over a transaction or event, and is thus also state-centric.

With the fall of the Berlin Wall and the spread of economic globalization, scholarly work has increasingly applied new concepts of “global” and “transnational law,” as distinct from the traditional concepts of international and national law. Under each of these new concepts, law is, to a certain extent, being denationalized, since the legal norms may not be formally part of international or national law as conventionally construed. Global law posits, by its name, that universal legal norms are being created and diffused globally in different legal domains.6 The concept of transnational law, in contrast, comprises legal norms that apply in more than one jurisdiction, but may or may not be global in nature. Examples of the transnationalization of law include the opening of international law to private actors (as subjects, objects and participants), the formation by private actors of substantive law that applies across borders, and the rise of common approaches of national judges and regulators to cross-border and (purely) national legal and regulatory issues as a result of transjudicial and transgovernmental dialogues. The term legal norms in this essay refers, for heuristic purposes, to norms that take a codified form laying out behavioral prescriptions, although the codifications need not be binding or backed by a dispute settlement or other enforcement system.7

Scholars have adopted competing conceptualizations of transnational law. Just as the formal divide between international and national law is sometimes defined by sources (such as treaties versus statutes) and sometimes by subjects (such as states versus persons),8 so competing conceptualizations of transnational law can be differentiated by their focus on objects (law addressing transnational activities and situations) and on sources (law, whether international or foreign, that is imported and exported across borders). Most legal studies that use the term transnational law refer to law that targets transnational events and activities — that is, transnational situations which involve more than one national jurisdiction.9 (We can dub this concept, Transnational Law Applying to Transnational Situations). Many socio-legal studies, however, including those in this volume, conceive of transnational law in terms of the source of legal change within a national legal system. In this latter conception, transnational law consists of legal norms that are exported and imported across borders. (We can dub this concept, Transnational Law as Socio-Cultural Flow).

In his famous 1956 Storrs Lecture, Judge Philip Jessop defined “transnational law” in the first “situational” sense as “all law which regulates actions or events that transcend national frontiers.”10 He stressed that “[b]oth public and private international law are included, as are other rules which do not wholly fit into such standard categories.”11 This concept is a functional and practical one, reflecting a professional concern that since both international and national law are inadequate to address the flow of actions and the impact of events across borders, we need a more accurate and useful concept of law to govern these situations.12 The growing use of the concept of “transnational law” in this sense reflects a functional legal response to increasing economic interconnectedness, sometimes involving new international treaties and regimes and sometimes involving the application of national law to events that occur outside a state’s borders but have effects within it.

In an excellent conceptual analysis, Craig Scott examines three perspectives of transnational law which lie within this first conception, which he labels traditionalist, decisional and socio-legal.13 First, he notes that the concept of transnational law, at a minimum, simply aggregates traditional concepts of public and private international law. Public international law addresses relations between states, while private international law addresses conflicts between national jurisdictions asserting authority over the transnational activities of private actors. These private law situations give rise to the development of principles and rules regarding conflicts of law, jurisdiction and enforcement and recognition of judgments.14 Second, as national courts and international arbitrators increasingly issue decisions to address these situations, they create disaggregated clusters of principles and rules that can be extracted, used by advocates, and guide subsequent decisions.15 Third, as a pool of legal norms in this area becomes relatively coherent and systematized over time, we may discern the emergence of a distinct body of law that is not “statist” but “transnational,” one that is developed by the ongoing interaction of public and private actors across states and through international private law institutions.

The concept of Transnational Law as Socio-Cultural Flow, in contrast, focuses on all transnational flows of legal norms and institutional forms across borders, including those that are substantive and specific to discrete fields of law (as opposed to general principles of jurisdiction and conflicts of law). It includes foreign and international legal norms, as well as norms purported to be global. The concept of transnational law and legal norms is used to examine how law migrates across borders, whether it is directly applied by courts, is formally incorporated by legislatures, shapes interpretation of domestic law, or directly affects private behavior.16 It is not a functional concept, but a sociological and cultural one that is used to assess how transnational-induced legal change occurs and what type of effects it has. The concept, in other words, does not aim to delineate a particular body of law, but cuts across fields of law and provides an analytic framework for assessing change within them in a globalized world.17 In short, these different concepts of transnational law are adopted because they are useful for different purposes.

These two concepts have a certain overlap since the cross-border flow of legal norms is catalyzed by cross-border activities and policy concerns.18 Yet under this second concept of transnational law, the legal norms in question address not only transnational activities, but also purely national ones. For example, primary education law and municipal water services regulation, studied by Morgan and Kim et al., are exclusively national activities but they can be significantly shaped by the transnational flow of legal norms. The transnational legal norms in question may be embedded in international treaty obligations or in foreign legal models. They may be adopted voluntarily in a planned fashion pursuant to harmonization efforts, or adopted without a plan as part of a process of diffusion.19 Regardless of the transnational source and nature of the legal norm, it is given force and effectiveness when it becomes embedded in a national legal system.

Koh captures this concept of transnational law well when he writes:


Perhaps the best operational definition of transnational law, using computer-age imagery, is: (1) law that is “downloaded” from international to domestic law: for example, an international law concept that is domesticated or internalized into municipal law, such as the international human rights norm against disappearance, now recognized as domestic law in most municipal systems; (2) law that is “uploaded, then downloaded”: for example, a rule that originates in a domestic legal system, such as the guarantee of a free trial under the concept of due process of law in Western legal systems, which then becomes part of international law, as in the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights, and from there becomes internalized into nearly every legal system in the world; and (3) law that is borrowed or “horizontally transplanted” from one national system to another: for example, the “unclean hands” doctrine, which migrated from the British law of equity to many other legal systems.20
The studies in this volume “beam the searchlight of social science” on the reception in developing countries of transnational legal norms (in the sense of socio-cultural flow), regardless if the source of law is an international treaty, international soft law, a foreign legal model, or their combination.21

The process through which the transnational conveyance of legal norms takes place constitutes transnational legal process. Transnational norms do not travel by themselves. They are conveyed and carried by actors, including by government officials, members of international secretariats, professionals, business representatives and civil society activists. Actors with agendas often drive these processes. At other times, the legal norms may be carried less consciously as a reflection of intensified cross-border interaction characterizing economic and cultural globalization. Pursuant to transnational processes, legal models developed in the United States and Europe can be circulated globally.22

Transnational legal processes occur differentially in particular legal areas, potentially constituting distinct transnational legal orders that are semi-autonomous.23 The term transnational legal order is defined here as a collection of more or less codified norms and associated institutions within a given functional domain. Transnational legal orders may include global, multilateral, regional and bilateral norms and institutions.24 They encompass traditional international and supranational organizations, transgovermental regulatory networks and the activities of transnational corporate and civil society actors, whether or not working through institutions. The work of transnational legal orders may give rise to treaties, non-binding standards, model codes, institutional monitoring and different forms of dispute settlement. These instruments include amalgams of hard law and soft law varying in their precision, obligatory nature, and institutionalization of dispute settlement.25 Where the resulting transnational legal norms are relatively clear, coherent and accepted, the transnational legal order is more salient and may be viewed in systematic terms. Where they are less so, the transnational legal order is more contingent and fragile and thus less likely to be effective in producing domestic legal and institutional change.

The concept of transnational legal orders used here is similar to that of global administrative orders used in the global administrative law project out of New York University School of Law, although this project is broader and more ambitious in scope. Both projects depict legal orders arising beyond the nation-state that comprise not only international organizations, but also bureaucratic networks of public officials, hybrid public-private networks, and networks of purely private parties creating hard and soft law rules and norms.26 The concept of transnational legal orders, however, comprises more than administrative law principles and procedural rules, and it includes substantive areas of law not traditionally touched by them, such as human rights trials.27 The concept of transnational legal order also does not (by its name) imply that it has a “global” reach.”28 Rather, the concept of discrete transnational legal orders facilitates the analysis of both their heterogeneous nature and their variable effects, which may sometimes be global in nature, but which are more likely to exhibit considerable variation.


B. Change and Transformation. We need to specify what we mean by change and transformation. What do they consist of? How do we recognize them? Change can affect the state generally or only discrete parts of the state (the location of change). It occurs along different dimensions, such as legal, institutional, professional and normative, which we examine in Part II. Change can occur evolutionarily or revolutionarily, episodically, incrementally or dramatically (as in Eastern Europe in the 1990s). The concept of transformation refers to significant or fundamental change, change which can vary in terms of time and space.29 The threat of transformation of the state can lead to a protracted politics both locally and transnationally to forestall change. Diachronic empirical studies are thus important since we may not know the extent of change until after some struggle, possibly a protracted one.

The extent of change is always contingent, so that at times studies will speak of transnational influence, at times of transnational failure, at times of appropriation of transnational law, and at times of significant transnationally-induced change. The resulting legal change may occur symbolically (on the books in terms of constitutional, statutory and administrative law revisions, or the creation or modification of agencies and courts) or practically (in terms of established patterns of institutional and individual behavior). While much of traditional law scholarship focuses on the symbolic, the studies in this volume address changes in not only formal law and institutional structures, but also institutional and social practice.

The effective importation of transnational legal norms and institutional forms often confronts a dilemma. While importation is facilitated if the legal norm can be translated and appropriated to fit the local context, the more that the norm is adapted, the less transformative it may be. As Sally Merry writes regarding human rights law and gender violence, legal norms “are more easily adapted if they are packaged in familiar terms and do not disturb established hierarchies, but they are more transformative if they challenge existing assumptions about power relationships.”30 Because transnational law interacts with domestic institutional, political and cultural contexts, changes are often evolutionary and incremental over time.
C. Transnational Legal Process and Non-Legal Factors in State Change. There are of course many transnational impacts besides law on nation states, reflecting processes of economic and cultural globalization and global structures of political and economic power. Many earlier studies have examined these transnational impacts, and in particular, the phenomena of economic and cultural globalization.31 Transnational law of course is affected by these larger political, economic and social forces.32 It reflects and conveys them, embodying and institutionalizing values, norms and prescriptions for social organization and behavior. It is thus difficult if not impossible to separate the impacts of law from other forces, and the accompanying studies do not attempt to do so.33

However one views the relation of transnational law to larger processes of globalization and the exercise of power, the focus on transnational law and legal process provides us with a vehicle for assessing transnational influences on state change. Transnational law embodies norms and prescriptions for the regulation of activities in particular functional domains. It can shape the perception and definition of problems and appropriate responses to them. It provides a framework for actors to weigh particular regulatory alternatives to address particular situations. It makes available models for reshaping institutional arrangements for the development, application and enforcement of law to address these situations.

To understand change in regulatory fields requires an assessment of “the various processes by which institutions are continually reproduced and modified through … actors’ practices.”34 Transnational legal processes engage relevant actors in an iterative process of interaction which can affect their practices, leading to incremental or more dramatic change. The study of transnational legal processes thus provides a window for assessing changes in legal norms, institutional organization and practices within states.
D. Recursivity. The socio-legal approach represented in this volume combines the examination of transnational and national processes by focusing inquiry on particular regulatory fields (as opposed to general global and transnational law principles). In this way, the studies can assess how the transnational and national are interpenetrated within a field. This dual focus is captured in the concept of recursivity developed by Terence Halliday and Bruce Carruthers.35 Recursivity connotes a multidirectional, diachronic process of legal change. From this perspective, transnational legal process is viewed not as unidirectional, but a process in which the transnational and local are held in tension, in which transnational legal processes seek to influence local lawmaking and practice, and in which national legal norms, adaptations and resistances provide models for and feed back into transnational law.36

The conception of transnational law as recursive does not reify transnational law as singular and absolute in content, but rather accounts for its historical specificity and provisional and changing nature. Some sort of settlement may occur which persists over time until that settlement is destabilized. The recursivity approach posits that any transformations of the state will be a function of three processes operating both simultaneously and cyclically—a politics within the international and transnational; a politics within the domestic context; and a politics between the transnational and the domestic involving intermediaries.37

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