Durkheim in World Society: Roger Cotterrell’s Concept of Transnational Law

• DOI: http://doi.org/10.1111/raju.12262
• Author: Julia Eckert
• Date: 01 December 2019
• Published date: 01 December 2019

© 2019 The Author. Ratio Juris © 2019 John Wiley & Sons Ltd

Ratio Juris. Vol. 32 No. 4 December 2019 (498–508)

Durkheim in World Society:

Roger Cotterrell’s Concept

of Transnational Law

JULIA ECKERT

1. Introduction

I want to take up two issues from Roger Cotterrell’s book that have been tremen-

dously inspiring to me and that have been of central concern in my own attempts to

grapple with law’s social transformations (Eckert et al. 2012). One is his discussion of

the relation between moral norms and legal norms, and more specifically his reading

of Durkheim. Cotterrell (2018, 174) takes up Durkheim in order to explore “law’s

moral meaning, not in a philosophical sense, but in terms of the empirically identifi-

able conditions of co-existence of individuals and groups in a certain time and place;

that is, in the circumstances of a particular kind of society at a particular point in its

historical development.” At a historical moment when many struggles that concern

fundamentally moral obligations are fought via the law, it is very timely to explore

law’s moral meaning anew.

The second aspect that I want to take up is Cotterrell’s concept of transnational law.

In relation to the emergence of novel legal norms in transnational contexts, he insists

in particular on the “need to think about law in radically new ways: Emphasising the

creation of norms and authorities in ‘bottom up’ processes of negotiation and con-

sensus formation” (ibid., 110) and the “revision of the whole idea of ‘legal’ expertise”

(ibid., 117). This appears superbly promising for empirical socio-legal research in our

current world, as does his approach to law’s moral meaning. I want to bring these

two aspects of Cotterrell’s thought together—because there seems to be a problem

with Durkheim in world society.

2. Law’s Moral Meaning

The connection made by countless people between morality and law—i.e., the claim

that (a) law should be moral and adhere to moral norms, and that (b) law is a means

of furthering particular moral concerns—cannot be ignored, as we do in our research

when we posit either a fundamental difference or a pragmatically and ethically nec-

essary distance between law and morality. What I have elsewhere called the juridi-

fication of protest (Eckert et al. 2012) is also a juridification of moral indignation,

of moral claims, and an attempt to realign law and morals as they are perceived