Panglossian transnationalism.

• Author: Dibadj, Reza

Abstract

Transnationalism represents a major leap forward in our understanding of events that cross national borders. At the same time, though, the transnational approach is woefully incomplete. Students looking for intellectual coherence are frequently disappointed. And even a cursory glance at news headlines makes it abundantly clear that despite this major conceptual advance, the worm has not become any happier. I worry that transnational law has become too optimistic, perhaps even naive, about what it can accomplish.

The argument is structured in three parts. Part I simply seeks to understand what "transnational law" actually means, by developing a typology that systematizes not only sources of law, but actors engaged in cross-border events. Part II attempts to draw three principal lessons from this reality: (i) transnational law, for all of its glamour, is often little more than national law applied to cross-border events; (ii) forays beyond the national have too often been either been ineffectual or perceived as disenfranchising, and (iii) the transnational approach is being hampered by its reliance on liberalism and process theory.

Part III argues for a counterintuitive and ironic proposition: Comparatists may lead a way out of transnationalism's morass. The comparative method presents precisely the tools that lead to a deeper understanding of the similarities and differences among national laws, and between national laws and other constructs such as supranational and international law. Only through understanding this reality can we begin to renew our justifications for the legitimacy of meaningful international law and institutions.

TABLE OF CONTENTS I. INTRODUCTION II. FROM BOUILLABAISSE TO TYPOLOGY A. Rationale: Limits of International Law B. Definitions and Rhizomes C. Actors, Sources, Typology II. FROM TYPOLOGY TO PESSIMISM A. The Centrality of National Law B. Forays Beyond the National C. Constraints of Liberalism and Process Theory III. DO COMPARATISTS GIVE CAUSE FOR OPTIMISM? A. Stepping Up the Project B. Anti-Democratic Bugaboo IV. CONCLUSION Pangloss admitted that he had always suffered horribly; but having once maintained that all was wonderful, he continued to maintain it and did not believe it.

--Voltaire, Candide (1)

1. INTRODUCTION

   Transnationalism represents a major leap forward in our understanding of events that cross national borders. Faced with the narrow strictures of classically-defined international law which centers on nation-states, (2) beginning in the 1950s, brilliant scholars espousing a transnational approach broadened the realm of inquiry. They emphasized not only the possible variety of actors, public and private, that engage in cross-border conduct, but also the plethora of laws that purport to regulate these activities. (3) Such a perspective is of immense pedagogical use, since it exposes students to a complex of actors and sources present when advising clients on international transactions or events. (4) And it has led to a series of new and insightful scholarly works espousing the descriptive and normative value of transnational laws and processes. (5)

   At the same time, though, the transnational approach is woefully incomplete. Students looking for intellectual coherence are frequently disappointed. And even a cursory glance at news headlines makes it abundantly clear that despite this major conceptual advance, the world has not become any happier: Armed conflict, labor and human rights abuses, divergence between north and south, and environmental disasters, to name just a few, emerge every day. How can this be? Admittedly, blame for the world's ills cannot be placed uniquely at the feet of transnationalism. Yet the analytical framework it provides is, I fear, at least part of the problem. In particular, I worry that in our zeal to embrace transnationalism with all of its rhetorical appeal, we have lost sight of the fact that the concept is incomplete, relies on troubling assumptions, and in the end represents only a very small step toward developing meaningful international laws and institutions from which real solutions might emerge.

   Strangely enough, I am reminded of Pangloss, one of Voltaire's most colorful personages. "Monsieur Pangloss," putatively, "the most profound metaphysician of Germany," (6) "taught metaphysico-theolog-cosmo-nigology. He proved admirably that there is no effect without a cause, and that, in this best of all possible worlds, the country house of Monseigneur the Baron was the handsomest of country houses, and Madame the best of possible Baronesses." (7) I worry that transnational law has become an example of "metaphysico-theolog-cosmo-nigology," a field that has become too optimistic, perhaps even naive, about what it can accomplish in today's world. In making this argument, I will necessarily question assumptions--to look at the transnational approach from first principles rather than fancy jargon and ingrained habit, much like a child or a tourist would look at architecture for the first time. (8)

   The Article is structured in three parts. Part I simply seeks to understand what "transnational law" actually means. At one level, this appears to be a trivial exercise. But careful observation suggests that it is a deceptively difficult question, largely because other terms--"international," "supranational," and "comparative"--clutter the picture. To distinguish among these concepts, I develop a typology using a matrix that systematizes not only sources of law, but actors engaged in cross-border events.

   Part II attempts to draw some lessons from this reality, shedding light on several phenomena. First, I find that national law plays by far the most significant role in mediating cross-border events. Put simply, transnational law, for all of its glamour, is often little more than national law applied to cross-border events. In a landscape dominated by national laws, it becomes altogether unsurprising that there is so much focus on extraterritoriality, imbalances among nations, and regulatory races to the bottom. Second, forays beyond the national have too often been either ineffectual or perceived as disenfranchising, for example, in their privatization of public functions or unfriendliness to the developing world. Third, the transnational approach is being hampered by its reliance on liberalism and process theory.

   But given transnationalism's limitations, can any approach lead away from reliance on national laws toward greater internationalism? Part III argues that comparative law may lead a way out of the morass. The idea that comparative law could rescue anything from malaise is, admittedly, a counterintuitive and ironic proposition. After all, transnational law is in vogue and comparative law is not. I argue, however, that the comparative method (9) presents precisely the tools that lead to a deeper understanding of the differences among national laws, and between national laws and other constructs such as supranational and international law. Only with this knowledge can we look for similarities and common ground among legal systems. In doing so, we can begin to renew our justifications for the legitimacy of international qua international law, hopefully one day to place less emphasis on clunky workaround doctrines such as extraterritoriality. Perhaps oddly, from comparatists' insights may emerge a chance at finally developing meaningful international laws and institutions.

2. FROM BOUILLABAISSE TO TYPOLOGY

   "Transnational" is a chic term, but defining it is far from elegant. Much like the word "postmodern," the "term gets [used] everywhere, but no one can quite explain what it is." (10) By first understanding what "transnational" is--and more importantly, what it is not--we can get a sense of why it might be a Panglossian venture.

   1. Rationale: Limits of International Law

      To a great extent, transnationalism has emerged from the limits of international law. As conventionally conceptualized, international law revolves around the nation-state. It is inter-national: a product of the "Westphalian state-centered system of world law" (11) which maintains that "the states are the only subjects of international law, a theory implicit in the alternative description 'law of nations.'" (12) More specifically, there are two components: public and private international law. The former governs relations among nations, generally via treaty or custom; (13) the latter, akin to conflict of laws, determines which national law to choose. (14) In both situations, the basic conceptual framework is the nation-state. Despite some significant achievements obtained within the conventional paradigm, (15) by the middle of the twentieth century commentators began raising two major criticisms of Westphalian-inspired international law: that it is neither descriptively accurate, nor represents a normatively desirable state of affairs.

      The first critique has been partly historical and partly forward-looking. It points out that the nation-state is a relatively new phenomenon that does not encompass legal sources dating back to medieval times such as the international law merchant, or lex mercatoria. (16) Looking forward to more recent developments, commentators also emphasize the increasing prominence of non-state actors such as intergovernmental organizations (IGOs), nongovernmental organizations (NGOs), corporations, and individuals--actors whom classical international law did not effectively envisage. (17) Put simply, "[i]n the second half of the twentieth century, we witnessed the rise of numerous legal systems outside of, and above, the national ones." (18) This perspective ties in well with two phenomena that are currently in vogue: Liberalism which "focuses on individuals and other nonstate actors in seeking to explain international behavior," (19) and globalization which can to a significant extent be "understood as a process of denationalization." (20)...