Transnational Legal Theory

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Transnational law between modernity and post-

modernity

Matej Avbelj

To cite this article: Matej Avbelj (2017): Transnational law between modernity and post-
modernity, Transnational Legal Theory, DOI: 10.1080/20414005.2016.1275559

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TRANSNATIONAL LEGAL THEORY, 2017
http://dx.doi.org/10.1080/20414005.2016.1275559

Transnational law between modernity and post-

modernity
Matej Avbelj
PhD EUI, LL.M NYU, Associate Professor of European Law, School of Law, Graduate School of
Government and European Studies, Kranj, Slovenia

ABSTRACT
Law is both an agent of change, and the object of social change. This article
examines the interplay between these two positions specifically with a view
to the emergence of transnational law as an outcome of the transition from
modernity to post-modernity. The article proceeds to analyse the position of
the law as agens of the post-modern social condition in five steps. After the
introduction, the article first outlines the features of modernity and contrasts
them, secondly, with those of post-modernity. This general discussion is then,
thirdly, contextualised in the field of law, whereby the concept of modern law
is fleshed out. The terrain is then, fourthly, set for a detailed map of
transnational law, which reveals that the legal landscape has been changed
dramatically in the last few decades. The modern law has been giving way to
post-modern law. The article concludes by describing and explaining how this
process has been unfolding amidst a complex subjective-objective
relationship between modernity, post-modernity and transnational law.

KEYWORDS Modernity; post-modernity; transnational law; dual role of the law

1. The process of transition from modernity to post-modernity

We live in transitional times. This might as well be a truism, something that
every generation experiences, usually out of dissatisfaction with its contem-
porary social affairs. The world as such, and the world of law in particular,
is never at a stand-still, but is always moving from one challenge to
another. However, this time around, the transition appears to cut much
deeper and is much more fundamental. It even affects the meta-level, the
level of the overall epistemology through which we get to know and construct
the legal world around us. The world of law has been changing so much that
the old paradigm,1 understood as a comprehensive set of epistemological
tools, concepts and theories, has become inadequate even to describe this
world as it is. Newly emerging social practices have brought the old

CONTACT Matej Avbelj matej.avbelj@fds.si Graduate School of Government and European

Studies, Predoslje 39, Kranj 4000, Slovenia
1
Thomas Kuhn, The Structure of Scientific Revolutions (University of Chicago Press, 1962).
© 2017 Informa UK Limited, trading as Taylor & Francis Group
2 M. AVBELJ

epistemology to the breaking point; to the point at which the old epistemic
resources can no longer be reformed to a certain new, more suitable degree,
and at which what is needed is, at least partly, a new epistemology in kind.
The old era has been called modernity, the newly emerging one is post-
modernity.
This article analyses the relationship, rarely explored, between the
phenomenon of transnational law and the social transition from modernity
to post-modernity. It argues that law has been both an object and a subject
of the process of transition from modernity to post-modernity. As an
object of this process, law has been importantly transformed by it. The
outcome of the transformation has been transnational law, which has many
characteristics of a post-modern concept of law. However, transnational law
has also acted as a subject of the process of transition from modernity to
post-modernity. It has been its agens, which has contributed to and strength-
ened the post-modern social condition.
This argument is developed in five steps. The article first outlines the fea-
tures of modernity and contrasts them, secondly, with those of post-moder-
nity. This general discussion is then, thirdly, contextualised in the field of
law, whereby the concept of modern law is fleshed out. The terrain is then,
fourthly, set for a detailed map of transnational law, which reveals that the
legal landscape has been changed dramatically in the last few decades.
Modern law has been giving way to post-modern law. The article concludes
by describing and explaining how this process has been unfolding amidst a
complex subjective-objective relationship between modernity, post-moder-
nity and transnational law.

2. The concept of modernity

Modernity and post-modernity are antipodes.2 To comprehend the emerging
postmodern condition, it is therefore necessary to understand modernity first.
However, modernity is an elusive, multifaceted concept whose meaning is not
easy to pin down. The views on modernity, which of its particular features
ought to be emphasised, how and why, vary among authors. A selection
among different approaches is therefore inevitable. The point of departure
of this article is Edgeworth’s analytical distinction between modernisation
as a process; modernism as a mindset; and modernity as time and space in
which the aforementioned modern processes and modern mindset are situ-
ated.3 Accordingly, modernity shall be defined as a temporal and spatial cat-
egory in which the processes of modernisation—technological, economic and
2
For a recent discussion on modernity and post-modernity see, Sionaidh Douglas-Scott, Law after Mod-
ernity (Hart Publishing, 2013).
3
See Brendan Edgeworth, Law, Modernity, Postmodernity (Ashgate, 2003) 6, who borrows this approach
from Marshall Berman, All That Is Solid Melts into Air: The Experience of Modernity (Simon Schuster, 1982).
 TRANSNATIONAL LEGAL THEORY 3

social—take place following and contributing to the modernist mindset.4 In

what follows, the main characteristics of the three building blocks of moder-
nity—time and space (taken together), processes and mindset—will be sche-
matically outlined.
From the present perspective it is, of course, impossible to identify when
exactly modernity began. Whatever the choice of time, accurate or inaccurate,
it will be a reconstruction of modernity’s origin in the light of what we know at
present. With that in mind, it can be argued that what is presently understood
as modernity, that is our modernity,5 emerges in the seventeenth century. The
point of rupture between the old and the new, represented by modernity, is
conventionally located in the Peace of Westphalia.6 This has given birth to
political modernity with the sovereign nation state as its main product and
actor. The state has also determined the spatial domain of modernity. In pol-
itical terms modernity assumes, creates and takes place in the carefully deli-
neated territories of nation states on which the latter claim to exercise
ultimate and absolute legal and political authority, to the exclusion of any
other authority external to that territory.7 In spatial-temporal terms, moder-
nity is thus a closely territorially bound phenomenon, limited to the self-con-
tained nation state whose origins date back to the seventeenth century.
The process of modernisation consequently involves historically distinct
changes in the economy and society inside the state.8 In economic terms,
modernisation goes hand in hand with the rise and evolution of capitalism,
involving industrialisation and the protection of private property, with the
market at its economic heart. The market and its constitutive relationships
between the factors of production, labour and capital in particular, are
subject to regulation by the state. This regulatory control and consequent
involvement of the state in the economy is originally limited. However, it
grows continuously, though unevenly, in different countries, so that a less
intrusive model of a liberal state is gradually replaced with the welfare state,
which is considered the high point of economic and social modernisation.9
The new economic system of capitalism, which replaced feudalism, has natu-
rally also converted the character of the societies.
Traditional communities, attached to the land and bound in faith as well as
status to the owner of the land, were incrementally disintegrated. The individ-
uals, rather than collectives, emerged as subjects, endowed with a status of

4
See Edgeworth (n 3) 6, who speaks of ‘the cluster of visions and ideas’.
5
For the importance of ‘our’ modernity, as the notion of modern, representing a break from the old, has
been used throughout history, starting with the fifth century, see Jürgen Habermas, ‘Modernity: An
Unfinished Project’ in M.P. d’Entrèves and S. Benhabib (eds), Habermas and the Unfinished Project of
Modernity (MIT Press, 1997) 5.
6
See Douglas-Scott (n 2) 15.
7
Matej Avbelj, ‘Theorizing Sovereignty and European Integration’ (2014) 27 Ratio Juris 344.
8
See Edgeworth (n 3) 52.
9
Ibid, 53.
4 M. AVBELJ

citizens of states and therefore bearers of rights and duties. Economically they
were integrated into what later became known as the Fordist economy,
characterised by a technology of mass production reliant on a strict division
of labour in huge industrial complexes.10 This new type of economy required
a new type of economic actor. Farmers increasingly became workers, which
spurred the process of urbanisation, growth of cities and an urban style of
life. All of this eventually resulted in the demise of the social world of tra-
ditions and customs, indeed the overall forma mentis predating modernity
was subject to a dramatic change.11
What emerged were societies and individuals with a very different social
imaginary,12 with a new, modern mindset. This mindset was an upshot of
the Renaissance and Enlightenment. It is a mindset which postulates reason
(ratio) as a measure and motor of all things. It is with the power of reason,
which is universal and distinctive of individuals as human beings, that mod-
ernity harbours the conviction that individuals and humanity as such can
make the world over to their own design.13 Thanks to reason, modern indi-
viduals were to be the masters of their fate; the rulers of the world which is,
on that basis, only bound to progress. But the paramount value of modernity,
and also its measure of progress, is order.
This is understandable as modernity, especially in the political sense, was a
reaction against the disordered past, most imminently against the atrocities of
the Thirty Years’ War, and indeed against the overall instability and precar-
iousness of the pre-modern social order. The mindset of modernity is there-
fore essentially monist. It privileges uniformity and unity over diversity and
plurality for a reason: to ensure order through the reduction of conflicts
which are rooted in differences. The best means for achieving this objective
is the sovereign state with its unitary, hierarchical organisational framework,
centralised government, monopoly on violence over a delimited territory
inhabited by as culturally homogeneous people as possible.14 This modern
state should establish order which is just.15 The core values of modernity,
the normative fabric of the modern mindset are therefore: peace, justice,
equality, liberty, coherence, predictability, stability, universality, unity and,
of course, certainty.

10
Ibid, 44.
11
See also Habermas (n 5) 42–4.
12
Charles Taylor, Modern Social Imaginaries (Duke University Press, 2003).
13
Neil Walker, in Matej Avbelj and Jan Komárek (eds), ‘Four Visions of Constitutional Pluralism’ (2008) 1
European Journal of Legal Studies 325.
14
Preston King, The Ideology of Order (George Allen & Unwin Ltd, 1974) 274 who submits that yearning for
unitary order is a sentiment that can be traced back to antique, but which has reached its heyday in the
medieval times after the Thirty Years War, especially in the writings of Hobbes.
15
States are required to respect the constraints of justice and to secure justice, see Christopher W. Morris,
An Essay on the Modern State (Cambridge University Press, 1998) 164.
 TRANSNATIONAL LEGAL THEORY 5

As such modernity was indeed an ambitious and revolutionary project, but

one with an inbuilt contradiction.16 As is powerfully explained by Santos,
modernity consists of two conflicting projects: the project of emancipation
and the project of regulation. Modernity is about the desire to free humanity
from the irrational and oppressive bonds of the past by creating a new and
hopefully more just order. Order is always a form of regulation destined to
ensure the stability of a hence achieved emancipation. And yet any modern
stage of regulation is always merely temporary. The emancipatory drive for
progress, as an utopian dimension of modernity,17 will quickly require a
new emancipation to be secured in a new regulation.18 Modernity is thus at
once a project of destructive creation and creative destruction.19 It is a
process that features a constant exchange of unlocking and locking forces
in humanity. According to Santos, the unlocking or emancipatory factors
are: arts, science and law, whereas the regulatory factors are: state, market
and community.20 This tension between emancipation and regulation was
productive for a long time, resulting in concrete achievements promised by
modernity.
However, since the 1960s an increasing number of critical voices have
started raising concerns that modernity is failing to realise its values. Human-
ity continued to linger in the world characterised by disorder, incoherence,
lack of predictability, instability and fluidity, inequality, particularity, frag-
mentation and uncertainty.21 Contrary to the expectations of the moderns,
the cleavage between the aspirations of modernity and social practices dee-
pened, assisted by the horrors of the two great wars of the twentieth
century. As a result, a crisis of representation22 erupted to gradually under-
mine the aforementioned main modernist belief that we can make the
world over to our own design and that, in so doing, we are almost condemned
to progress. Hope and progress, the two constitutive normative elements of
modernity, have gradually given way to anxiety and fear of failure. Modernity
has thus witnessed a sentimental turn downward: from optimism to
pessimism.

16
Boaventura de Sousa Santos, Toward a New Legal Common Sense. Law, Globalization and Emancipation
(Butterworths, 2002) 4. For a discussion of even earlier and much more damning critiques of modernity,
especially by Nietzsche, but also by Weber. See, David Harvey, The Condition of Postmodernity (Black-
well, 1989) 15.
17
See Santos (n 16) 3.
18
Ibid. Santos is drawing on the three logics of rationality as identified by Weber: ‘the aesthetic-expressive
rationality of the arts and literature; the cognitive-instrumental rationality of science and technology:
and the moral-practical rationality of ethics and the rule of law’.
19
Malcolm Bradbury and James McFarlane, Modernism: A Guide to European Literature 1890–1930
(Penguin Books, 1991) 446.
20
See Santos (n 16) 3.
21
Ibid
22
Gary Minda, Postmodern Legal Movements, Law and Jurisprudence at Century’s End (New York University
Press, 1995) 62, describing the incapacity ‘of artistic, philosophical, literary, social and scientific
languages to control, predict, and describe the social and physical worlds’.
6 M. AVBELJ

Consequently, modernity was said to be in crisis. However, the extent and

consequences of the apparent crisis of modernity have been subject to differ-
ent interpretations. There are authors who insist that nothing has changed
and that all is still business as usual.23 Then there are those, including Haber-
mas, who believe that the practical shortcomings of modernity are not a sign
of its demise, but proof that the project of modernity is still unfinished.24
There is also a third group of authors who recognise the depth and breadth
of the crises of modernity, but insist that modernity continues to adapt to
them and has, in so doing, entered a more advanced, later stage.25 These
authors, such as Beck, thus claim that humanity is currently going through
its second modernity.26 Finally, there is a group of thinkers who have relin-
quished modernity and declared the arrival of a new era of post-modernity.

3. The post-modern condition

Apparently there is thus no consensus on the exact character of the era that we
live in. To make things worse, even among the advocates of post-modernity
there is little unanimity on what post-modernity in theoretical and practical
terms actually entails. Hebdige has thus listed over 40 different meanings of
post-modernity.27 In defining post-modernity we shall use the same compara-
tors as in our discussion of modernity: time and space, process and mindset.
Accordingly, post-modernity is a temporal and spatial category in which the
processes of post-modernisation—technological, economic and social—take
place following and contributing to the postmodernist mindset.28
Post-modernity begins in the second half of the twentieth century. As in
the case of modernity, that is a contested estimation.29 However, the fact
remains that, several years after WWII, the West experienced a profound
economic transformation which triggered a sea-change in cultural, political,
legal and indeed all social practices.30 Capitalism entered its late stage.31
The Fordist economy turned out to be too rigid and was gradually pushed
out by more flexible techniques of production.32 Massive factories were com-
plemented and replaced by smaller and geographically dispersed production
23
Alex Callinicos, Against Postmodernism: A Marxist Critique (Polity, 1989).
24
See, for example, Habermas (n 5) 38.
25
See Douglas-Scott (n 2) 14 speaks of ‘after modernity’.
26
Second modernity is defined by global ecological and economic crises, widening transnational inequal-
ities, individualisation, precarious forms of paid work and the challenges of cultural, political and military
globalisation. See Ulrich Beck, Power in the Global Age: A New Global Political Economy (Polity, 2005) 106 ff.
27
Dick Hebdige, Hiding in the Light: On Images and Things (Routledge, 1988) 181–2.
28
See Edgeworth (n 3) 6.
29
Ibid, 19, noting that for Toynbee postmodernity started already in 1875.
30
Harvey (n 16) in preface sees 1972 as a turning point.
31
Mary Klages, ‘Postmodernism’, online: <http://www.bdavetian.com/Postmodernism.html> (last visited
January 8, 2016), referring to Frederic Jameson. See, in particular his, Postmodernism or the Cultural
Logic of Late Capitalism (Duke University Press, 1991).
32
What Harvey (n 16) 124 has called flexible regime of accumulation.
 TRANSNATIONAL LEGAL THEORY 7

units. Full-time jobs, backed by strong industrial relations, gave way to more
flexible types of employment. Workers became contractors. The cost of labour
was reduced and the balance between labour and capital was tipped in favour
of the latter.33 In short, we witnessed a transition from the so-called organised
to disorganised capitalism, from Fordist economy to flexible accumulation,34
with major transformations in the production process, status of labour(ers)
and the conception of space.35
Under the influence of the process of globalisation, space has simul-
taneously shrunk and widened. Technological progress has brought the
most distant places closer and in so doing made the world at large a much
more accessible place. Global has become local and local has become
global. The immediate consequence of this has been a declining functional
importance of national frontiers, which have both entailed and signalled
the weakening of the role of the nation state. States were economically and
politically driven to form regional integrations. They have gradually lost the
monopoly over their territories, but at the same time the role of territory,
has changed as well as, perhaps, its importance diminished.36 A number of
non-territorial, functional entities have emerged with powers and competen-
cies matching and sometimes surpassing those of states. In spatial terms post-
modernity has thus sparked the process of, first, regionalisation, growing into
de-nationalisation and ultimately into de-territorialisation.
In socio-cultural terms, these economic changes resulted in a society
characterised by mass culture and mediatisation.37 The cultural products of
post-modernity are marked by fragmentation, diffusion and emphasis on
surface rather than substance.38 For Bauman the changes in society were so
comprehensive that one is entitled to speak of ‘the systemness of postmodern
society’.39 He emphasises not only the changes in economic production, but in
particular in consumption. The consumer has replaced the worker as a central
figure of society and the ideology of consumption, ‘seduction through signs,
images and the promise of plenty’40 becomes the ‘integrative bond of
society’41 as well as the dominant strategy of social control.42

33
See Edgeworth (n 3) 45 ff.
34
See Harvey (n 16) 177.
35
Ibid, 176–9.
36
See, for example, Saskia Sassen, ‘Neither Global nor National: Novel Assemblages of Territory, Authority
and Rights’ 2008 1(1–2) Ethics and Global Politics 61; Patrick Glenn, ‘Transnational Legal Thought: Plato,
Europe and Beyond’ in Maduro, Tuori, Sankari (eds), Transnational Law, Rethinking European Law and
Legal Thinking (Cambridge University Press, 2014), 66 refers to the debate on ‘despatialization’, ‘deter-
ritorialising’, ‘a-territoriality’.
37
Jack M. Balkin, ‘What Is a Post-modern Constitutionalism’ (1992) 90 Michigan Law Review 1968.
38
Ibid. Balkin quotes our renewed interest in natural and organic foods as an example, which, however,
‘when viewed more closely, turn out to be high-tech, mediatized or commodified’.
39
Zygmunt Bauman, Intimations of Postmodernity (Routledge, 1992) 52–3.
40
Edgeworth (n 3) 49.
41
Ibid.
42
Ibid.
8 M. AVBELJ

All of this has contributed to a specific postmodern mindset, which has

developed as a negation of the main traits of the modern mindset: reason,
progress and order. Rather than celebrating reason, post-modernity stresses
its darker side. Reason is now not only a means of liberation, but can also be
a tool of enslavement.43 The loss of faith in reason translates into decline of
scientific authority. The allegedly objective and neutral character of scientific
findings is questioned and defied. As a result, belief in progress is decried as
utopian thinking.44 The monistic mindset of modernity, which has privi-
leged order, is now replaced by a postmodern mindset. The latter discloses,
often by way of celebration, a lack of order in forms of fragmentation, plur-
ality and the like. Totalising, universalising and uniformity-driven ten-
dencies, aversion to diversity, which are typical of modernity are replaced
by a postmodern affirmation of differences and the ethical concern for
‘the other’.45
In general, the postmodern mindset is a deconstructive one. It espouses the
methodology, which rejects the modernist idea of a master narrative, of a
meta-framework which can encompass all the phenomena and explain
them in their totality, with accompanying claims to truth and objective knowl-
edge. As famously declared by Lyotard, postmodernity is about the ‘incredu-
lity toward meta-narratives’.46 This philosophical stance has since been
reinforced by the process of globalisation, which has brought about an unpre-
cedented mobility in people, factors of production and information47 that
have revealed the real scope of diversity, indeed disorder, in the world. Sim-
ultaneously power lato sensu has been dispersed, leading to the creation of
multiple centres of authority, each increasingly capable of controlling its
own sphere and countering the attempts of domination by others. Conse-
quently, it is now more difficult than ever to create a master narrative and
to sustain its domination over the whole social world across the globe. In
the twenty-first century it has become clear that no one social entity or insti-
tution is powerful enough to create an impression of controlling the society’s
imaginative framework in full.
Consequently, postmodernists argue that the world and its phenomena can
only be accessed from the particular, and therefore subjectively limited,

43
Ibid, 32.
44
Ibid, 38. According to Alexander Somek, ‘The Cosmopolitan Constitution’ in Maduro, Tuori, Sankari (eds),
Transnational Law, Rethinking European Law and Legal Thinking (Cambridge University Press, 2014) 102,
the very ascent of human rights ‘marks the advent of post-utopian vision of human well-being’,
‘marking the depletion of utopian energies and the widespread intellectual fatigue with which societies
converge on some attractive features of liberalism’, referring to Samuel Moyn, The Last Utopia: Human
Rights in History (Harvard University Press, 2010).
45
Edgeworth (n 3) 51.
46
Jean-François Lyotard, The Postmodern Condition: A Report on Knowledge (University of Minnesota Press,
1984) 2.
47
See, for example, Anthony Giddens, The Consequences of Modernity (Stanford University Press, 1990) 62
who has spoken of a unique time-space alienation as a result of globalisation.
 TRANSNATIONAL LEGAL THEORY 9

perspectives that can make no valid claims to the understanding and explain-
ing of the whole. Postmodernism, as claimed by Klages, therefore favours
mini-narratives which are always situational, provisional, contingent and
temporary, making no claim to universality, truth, reason or stability.48 Post-
modernism stresses the contingency of anything that we know. As a result, it
has been claimed that post-modernity comes with no foundations, which has
prompted many to identify it with relativism and/or even nihilism.49
This, however, is an unfairly waged charge against post-modernity. Post-
modernity does not claim that there are no foundations, rather that there
are too many. Each one is situated and premised upon its own distinctive
episteme, the world of meaning, without an arbiter with an objective and
universal access to the Archimedean point on the basis of which differences
across the plurality of social sites, indeed worlds, could be reconciled so to
form a coherent and therefore ordered not just theory, but also reality.
Post-modernity should therefore be distinguished from moral or value rela-
tivism. It is correct to say that values are relative to the social site from
which they stem, but this is neither to mean that anything goes nor that
meaningful communication, indeed dialogue, is not possible between the
different sites.
The transition described above, from modernity to post-modernity has
thus been a product of the profound changes in the world’s social circum-
stances caused by the evolution of capitalism and the process of globalisation.
It is not possible for such a transition to have left the law entirely unaffected.
To the contrary, in what follows it will be argued that the law of modernity—
the modern concept of law—has gradually been giving way to new forms of
post-modern law, epitomised by transnational law.

4. The modern concept of law

By the notion of modern law,50 I mean law as it has been practiced and theor-
etically grounded in the geographical and political space conventionally
known as the West.51 Modern law has two defining features. The first
resides in its connection to the state. The state has long been considered a
main, if not the exclusive source and operating theatre of law. Its three

48
See Klages (n 31).
49
See also, Douglas-Scott (n 2) 17 who argues that in legal theory much of postmodernity’s message ‘is
nihilistic or even negative’.
50
Of course, as Douglas-Scott (n 2) 18–21 powerfully argues there is no shared conception of the modern
concept of law. Shediscusses five modern visions of law: Conceptual postivism (Austin), Interpretative
positivism (Weber, HLA Hart), Legal Realism, Habermas’ and Marxist’s vision of law.
51
This discussion draws on Matej Avbelj, ‘The Case of Mr Kadi and the Modern Concept of Law’ in Matej
Avbelj, Fillipo Fontanelli, Giuseppe Martinico (eds), Kadi on Trial: A Multifaceted Analysis of the Kadi Judg-
ment (Routledge, 2014) 49–62.
10 M. AVBELJ

nicely delineated branches of power produce constitutional law, legislation,

administrative law and judicial decisions respectively. As the essential prop-
erty of a state is sovereignty—according to which the state has the ultimate
legal and political authority over a clearly delimited territory—modern law
has conventionally been understood as the supreme and exclusive law of
the land, of a given territorial entity.
Other non-statist sources and therefore bodies of law have always
existed, most notably international law, but the latter’s ‘real’, rather
than state-derived legal nature, has always been disputed in theory and
practice.52 The centrality of the state to the modern concept of law has
been so evident, that it has long gone not just unstated, but also fairly
uncontested.53 Conceiving of the modern concept of law thus meant,
almost unexceptionally, thinking of the law within the state: a state law.
Some theorists, in particular Kelsen, have even gone as far as equating
the state with the law.54
The second defining feature of the modern concept of law is its dual
nature: formal and substantive. The formal dimension of law stands for
the hierarchical legal frame, indispensable to any legal order, whereas
the substantive dimension has come to be identified with human rights
protection. The idea of hierarchy is both a prerequisite for the legal
order’s autonomy as well as for its ordered character, which is facilitated
through the ordering principle following which the higher norm invali-
dates the lower norm. Hierarchy is a guarantee of certainty, coherence—
of the most highly valued modernist ideals—and hence of modern law.
But the experience leading up to and during WWII shows that a pure
formal law, no matter how ordered, is not enough for the rule of law
to be properly so called. The latter requires the formal legal order also
to be just.55 This should be achieved through the establishment of
human rights protection, which is assumed in the modernist tradition to
be universal and equal.
Just as the transition from modernity to post-modernity at large has social
roots, so does emerging post-modernity in the field of law. This has been trig-
gered by the rise of new actual and putative authorities in and beyond the state
whose social practices have gradually produced a whole new body of law:
transnational law.

52
HLA Hart, The Concept of Law (Oxford University Press, 1994) 229, arguing that international law is not a
legal system, but merely a set of rules.
53
The movement of legal pluralism has been a notable exception: John Griffiths, ‘What Is Legal Pluralism’
(1986) 24 Journal of Legal Pluralism and Unofficial Law 1.
54
Hans Kelsen, Pure Theory of Law (Gloucester, 1989).
55
Gustav Radbruch, ‘Gesetzliches Unrecht und übergesetzliches Recht’ (1946) Süddeutsche Juristenzeitung
105.
 TRANSNATIONAL LEGAL THEORY 11

5. The concept of transnational law

The concept of transnational law, as a law in-between,56 is elusive.57 It was
first used as a label in the 1930s by Max Gutzwiller.58 Conceptually it was
endowed with more substance in 1956 by Philip Jessup. He has defined trans-
national law ‘to include all law which regulates actions or events that trans-
cend national frontiers. Both public and private international law are
included, as well as other rules which do not wholly fit into such standard cat-
egories’.59 This is obviously a very broad, perhaps even an over-inclusive defi-
nition. Not only is any law beyond the state considered transnational law, but
the latter also includes ‘other rules’ which apparently do not necessarily need
to be legal. This poses a problem of utility of a concept that is so broad as to
lose any distinctiveness.60 It also raises a more acute objection as to what
makes transnational law legal in the first place. The two critiques, especially
if taken together, are fatal. The first deprives us of the capacity to define trans-
national law in abstracto, which, in turn makes it impossible to map out actual
phenomena as transnational law in practice.
The legal character of transnational law depends on the concept of law one
subscribes to.61 This article joins those who agree that transnational law is its
own, autonomous and separate field of law.62 Therefore, and contrary to what
is typically attempted, transnational law cannot be subsumed under either
international law or comparative law without changing the two beyond
recognition.63 Perhaps the best way of conceptualising transnational law is
by introducing a distinction between its broader and a narrower

56
See Kaarlo Tuori, ‘Transnational Law: On Legal Hybrids and Perspectivism’ in Miguel Maduro, Kaarlo
Tuori, Suvi Sankari (eds), Transnational Law: Rethinking European Law and Legal Thinking (Cambridge
University Press, 2014) 11; Peer Zumbansen, ‘Transnational Legal Pluralism’ (2010) 1(2) Transnational
Legal Theory 141; Neil Walker, ‘Beyond Boundary Disputes and Basic Grids: Mapping the Global Disorder
of Normative Orders’ (2008) 6 International Journal of Constitutional Law 6; Harold Hongju Koh, ‘Why
Transnational Law Matters’ (2005–2006) 24(4) Penn State International Law Review 745.
57
Scott has identified three conceptions of transnational law. Craig Scott, ‘“Transnational Law” as Proto-
Concept: Three Conceptions’ (2009) 10(7) German Law Journal 859.
58
Christian Tietje, Karsten Nowrot, ‘Laying Conceptual Ghosts of the Past to Rest: The Rise of Philip
C. Jessup’s Transnational Law in the Regulatory Governance of the International Economic System, in
Tietje, Brouder, Nowrot (eds), ‘Philip C. Jessup’s Transnational Law Revisited—On the Occasion of
the 50th Anniversary of its Publication’ (2006) 50 Halle-Wittenberg: Beiträge zum Transnationalen
Wirtschaftsrecht 27.
59
Philip C. Jessup, Transnational Law (Yale University Press, 1956) 3.
60
For a critique see Reza Dibadj, ‘Panglossian Transnationalism’ (2008) 44 Stanford Journal of International
Law 253.
61
For a discussion of the concept of law in transnational environment see, Roger Cotterrell, ‘Transnational
Communities and the Concept of Law’ (2008) 21(1) Ratio Juris 1; Benedict Kingsbury, ‘The Concept of
“Law” in Global Administrative Law’ (2009) 20(1) European Journal of International Law 23; and Alexan-
der Somek, ‘The Concept of “Law” in Global Administrative Law: A Reply to Benedict Kingsbury’ (2009)
20(4) European Journal of International Law 985.
62
See Terrence C. Halliday, Gregory Shaffer, ‘Transnational Legal Orders’ in Halliday, Shaffer (eds), Trans-
national Legal Orders (Cambridge University Press, 2015) 20.
63
Lary Cata Baker, ‘Prinicples of Transnational Law: The Foundations of an Emerging Field’, online: <http://
lcbackerblog.blogspot.com/2007/03/principles-of-transnational-law.html> (last visited January 13,
2016).
12 M. AVBELJ

understanding.64 The former—the transnational law lato sensu—encom-

passes any law whose effects extend beyond the state, whereas the latter,
the transnational law stricto sensu relates only to the body of transnational
law that does not originate, directly or indirectly, from the organs of the
state. Transnational law stricto sensu is thus transnational law without a
state.65 By following this distinction, whereby the guiding criterion is the
authorship or at least influence of the state in the making of transnational
legal rules, a map of transnational law lato sensu could be drawn as follows.
Transnational law
Public Administrative Private
International law Public New lex mercatoria
Supranational law Hybrid Transnational corporate law
Private international law Private
Transnational human rights regimes

The map is composed of three parts. Transnational law lato sensu can be:
public, administrative and private. Public transnational law consists of inter-
national law, supranational law, private international law and transnational
human rights litigation regimes. International law includes legal norms that
govern the relationships between states as well as between states and inter-
national organisations. International law belongs to public transnational
law because it exists in the legal realm beyond the state and is exclusively
created by public entities: either directly or indirectly by the states in their
engagement in international law-making through international organisations.
Supranational law is an example of an autonomous legal order, separate
both from national legal orders as well as from international law. Its most
developed example is the law of the European Union (EU). Originally
created as a regional international organisation it has through the institutional
practices that have been, explicitly or tacitly, sanctioned by the Member States
evolved its own legal order, with its own constitutive rules, principles and
practices that in many ways depart significantly from general international
law. The supranational law of the EU is part of public transnational law as
it is situated in the legal space beyond the Member States. As masters of
the founding treaties they remain in control of the constitutional set-up of
the EU and continue to keep hold of its law-making powers, even though
64
For a similar distinction see Gralf-Peter Calliess, ‘Reflexive Transnational Law: The Privatisation of Civil
Law and Civilisation of the Private Law’ (2002) 23(2) Zeitschrift für Rechtssoziologie 185. He defines trans-
national law as a third level autonomous legal system beyond municipal and public international law,
created and developed by the law-making forces of a global civil society, founded on general principles
of law as well as societal usages, administered by private dispute resolution service providers, and codi-
fied (if at all) by private norm formulating agencies. See, also Gregory Shaffer, ‘Transnational Legal
Process and State Change’ (2012) 37(2) Law and Social Inquiry 229, as well as Gregory Shaffer (ed),
Transnational Legal Ordering and State Change (Cambridge University Press, 2013).
65
To paraphrase Teubner’s global law without a state, see Gunther Teubner, ‘Foreword’ as well as “Global
Bukowina”: Legal Pluralism in the World Society’ in: Teubner (ed), Global Law Without a State (Ashgate,
1997).
 TRANSNATIONAL LEGAL THEORY 13

they have long lost the monopoly over them due to the erosion of the consen-
sus requirement, the special independent role of the Commission and the
growing powers of the European Parliament.
The next example of public transnational law is private international law.
This is state-made law which regulates the choice of law and determines the
competent jurisdictions over cases involving cross-border elements. Private
international law belongs to transnational law because of the remit of its appli-
cation. It is state law, eg part of the statist legal hierarchy, which applies to
transnational situations. In that way it differs from international and suprana-
tional law which both originate from states, without being part of the national
legal hierarchy. Rather they are situated in the transnational legal space, from
where they regulate and affect transnational as well as national situations.66
Finally, public transnational law includes those national regimes which
provide for universal jurisdiction. The best example of this is the US Alien
Tort Claims Act which, following the Filartiga ruling,67 enables foreign claimants
to bring actions for torts committed in the violation of international law in a third
country in US courts.68 The Filartiga decision has opened the gates69 wide for
transnational litigation on violations of human rights committed mostly by
transnational actors in environments where the appropriate forum for seeking
judicial redress was absent either de jure or de facto. The regime for transnational
human rights litigation belongs to public transnational law because its legal basis
derives from the state and since it is effectuated in the courts of the state. They
decide on the cases of pure transnational origin, which come under their juris-
diction solely by virtue of a plaintiff’s tort action against an individual over
whom the judging state has obtained a personal jurisdiction.70
It is thus characteristic of public transnational law that states continue to
exercise a relatively direct control over the transnational law-making
process. This control is, however, incrementally weakening as we move to
the field of administrative transnational law. This corresponds to the global
administrative law as it has been defined by Kingsbury, Krisch and
Stewart.71 However, while only some rules of global administrative law
have global effects or scope of application,72 they all have transnational

66
This distinction between transnational law which ‘only’ applies to transnational situations and transna-
tional law which is a transnational construction and flow of legal norms relies on Shaffer (n 64) 233–4.
67
Filártiga v. Peña-Irala, 630 F.2d 876 (2d Cir. 1980).
68
For an early discussion of this case, see Anne-Marie Burley, ‘The Alien Tort Statute and the Judiciary Act
of 1789: A Badge of Honor’ (1989) 83 American Journal of International Law 461.
69
They have been recently basically closed by the Supreme Court ruling in Kiobel v. Royal Dutch Pet-
roleum Co., 133 S.Ct. 1659 (2013).
70
Burley (n 68) 461.
71
Benedict Kingsbury, Nico Krisch, Richard B. Stewart, ‘The Emergence of Global Administrative Law’
(2005) 68 Law and Contemporary Problems 15.
72
Ibid, 18–9; see also Shaffer (n 64) 232 ‘The concept of transnational law has been developed, in parallel,
to address legal norms that do not clearly fall within traditional conceptions of national and inter-
national law, but are not necessarily global in nature’.
14 M. AVBELJ

effects, which speak in favour of using the term transnational rather than
global administrative law. Administrative transnational law thus exists in
transnational administrative space governed by transnational administrative
bodies which might be of public, hybrid (public–private) and private charac-
ter.73 Accordingly, administrative transnational law is broken down into three
clusters: public, hybrid and private administrative transnational law.
Before looking more closely at each of the clusters, let us examine what the
adjective administrative adds to transnational law. Classifying transnational
rules as administrative designates their mezzo-level legal character and
specific, eg administrative function. Administrative transnational rules are
adopted within the permissible legal scope defined by the law of the state,
international law, supranational law or private contractual regimes for their
respective actors. Administrative transnational rules are thus always derived
from pre-existing legal bases to which they must trace their origin and val-
idity. The function of transnational administrative rules is to administer,
execute or to make possible the execution of policies contained in more
abstract and general rules through the setting of regulatory standards.74
As stated above, transnational administrative law can be public, hybrid or
private. Public administrative transnational law is created by the organs of the
state, international organisations or supranational organisations. State organs
can create transnational administrative law on two levels. First, on the dom-
estic level by adopting regulatory decisions with transboundary effects. Kings-
bury, Krisch and Stewart have dubbed this mode of transnational
administrative law-making distributed administration.75 Second, states also
create transnational administrative rules in the transnational administrative
space beyond the state by taking part in formal, semi-formal and informal
transnational regulatory networks in which they co-operate with other
states and/or international and supranational organisations. This second
mode of primarily state-driven transnational administration through transna-
tional regulatory networks76 can, depending on the actors involved, be statist,
international, supranational or combined.77
Public administrative transnational law also emanates from the
international administration78 in international organisations addressing
regulatory questions in the fields of economy,79 finance, environment,80

73
Kingsbury, Krisch, Stewart (n 71).
74
Ibid, 17. Transnational ‘administrative action is rulemaking, adjudications, and other decisions that are
neither treaty-making nor simple dispute settlements between parties’.
75
Ibid, 19.
76
Ibid, 20.
77
Ibid, 20–3.
78
Ibid, 21.
79
Ibid.
80
Ibid, 19. According to the authors the environmental regulation is partly the work of non-environmental
administrative bodies such as the World Bank, OECD, and WTO, but increasingly far-reaching regulatory
 TRANSNATIONAL LEGAL THEORY 15

and security.81 With reference to international administration Kingsbury,

Krisch and Stewart distinguish between international administration with
direct82 and indirect regulatory effects.83 It is also created by the supranational
administration which takes place in supranational organisations, such as the
EU. Within the EU, one should emphasise the system of comitology as an
example of a well-developed supranational regulatory network composed of
committees consisting of the representatives of the state, supranational and
expert interests.84 However, these last frequently come from the private
sector, which brings the system of comitology very close to that of hybrid
transnational administrative law.
Hybrid transnational administrative law is created in the transnational
administrative space beyond the state jointly by public (statist, international,
supranational) and private actors. Private actors can be representatives of
various transnational civil societies;85 they can be drafted from different
expert groups, scientific communities and associations and they can be repre-
sentatives of businesses, etc. Transnational civil society has been composed
mainly of transnational religious actors and transnational sector-based
NGOs. Historically, religious communities predate the modern Westphalian
state, the emergence of which led to an intricate relationship between the
laws of the state and of the church.86 With the progress of secularisation,
especially in the West, religious communities were in temporary retreat.
However, the late twentieth century has witnessed a revival of religious
actors and communities, which have seized the technological advancement
to enhance and strengthen their cross-border networks, mostly through appli-
cation and development of religious ‘soft power’.87 In so doing, transnational
religious actors have exerted increasing influence over sovereign states, inter-
national politics, order and disorder.
Simultaneously, we have witnessed an immense growth of transnational
sector-based NGOs, both in number and in geographic reach. Transnational
NGOs have been defined as ‘groups of persons or of societies, freely created by

structures are also being established in specialised regimes such as the prospective emissions trading
scheme and the Clean Development Mechanism in the Kyoto Protocol.
81
Ibid, 19. Administrative action is now an important component of many international security regimes,
including work of the U.N. Security Council and its committees, and in related fields such as nuclear
energy regulation (the IAEA) or the supervision mechanism of the Chemical Weapons Convention.
82
Ibid, 21.
83
Ibid.
84
Gijs Jan Brandsma, Controlling Comitology (Palgrave MacMillan, 2013).
85
Ronnie D. Lipschutz, ‘Reconstructing World Politics: The Emergence of Global Civil Society’ (1992) 21(3)
Millennium, Journal of International Studies 390 has defined a transnational civil society as ‘the self-con-
scious constructions of networks of knowledge and action, by decentred, local actors, that cross the
reified boundaries of space as though they were not there’.
86
This has been fittingly described as the ‘locus classicus of thinking about the multiplicity of normative
orders’. Marc Galanter, ‘Justice in Many Rooms: Courts, Private Ordering, and Indigenous Law’ (1981) 19
(1) Journal of Legal Pluralism 28.
87
Jeffrey Haynes, ‘Transnational Religious Actors and International Order’ (2009) 17(2) Perspectives 47.
16 M. AVBELJ

private initiative, that pursue an interest in matters that cross or transcend

national borders’.88 NGOs should be distinguished, although the line is some-
times blurred, from intergovernmental organisations, that come into being
through intergovernmental co-operation, as well as from the transnational
corporate actors, discussed below, by the fact that they are not profit
seekers.89 NGOs exercise four core functions in the transnational realm:
they contribute to the development, interpretation, judicial application and
enforcement of transnational law.90 They also work together with representa-
tives of states, international and supranational organisations in a variety of
standard-setting bodies or run certification programs.91 Depending on the
degree of involvement and influence of the public actor on the decision-
making process, these hybrid standard-setting or certifying bodies can be
more or less public.
In cases of standard-setting and certifying bodies in which states or other
public entities are absent from decision-making, we can speak about the emer-
gence of private administrative transnational law.92 Examples quoted in the
literature include: International Accounting Standards Board; Underwriting
Laboratories; Motion Picture Association of America; Financial Industry
Regulatory Authority; International Organization for Standardization; Inter-
national Electrotechnical Commission; Forestry Stewardship Council; Fair
Labor Association; Fairtrade International; International Council of Chemical
Associations; International Social and Environmental Accreditation and Lab-
elling Alliance, Internet Corporation for Assigned Names and Numbers;
Codex Alimentarius Commission; lex sportiva internationalis; lex construc-
tionis, etc. Most of the rule-makers in the field of private administrative trans-
national law are thus founded as private, non-governmental, not-for-profit
entities, which can be recognised or authorised by the legislature or executive
in the country of their incorporation. The rules produced by these private
actors are administrative because they bind or regulate, through acceptance,
the collective practices of numerous entities in designated sectors without
their prior assent to these rules. Private administrative transnational law is
thus not a contract based-law of horizontal application between consenting
parties, but instead carries with it elements of verticality and authority
which are not founded on consent.

88
Steve Charnovitz, ‘Nongovernmental Organizations and International Law’ (2006) 100(2) American
Journal of International Law 350.
89
Ibid.
90
Ibid, 352. The author, however, limits the scope of NGOs only to international law; see also Till Muller,
‘Customary Transnational Law: Attacking the Last Resort of State Sovereignty’ (2008) 15(1) Indiana
Journal of Global Legal Studies 19.
91
Larry Cata Backer, ‘Private Actors and Public Governance Beyond the State: The Multinational Corpor-
ation, the Financial Stability Board and the Global Governance Order’ (2011) 18(2) Indiana Journal of
Global Legal Studies 767.
92
Eric C. Ip, ‘Globalization and the Future of the Law of the Sovereign State’ 2010 8(3) International Journal
of Constitutional Law 644.
 TRANSNATIONAL LEGAL THEORY 17

This is also how it differs from the last group of transnational law: private
transnational law. Private transnational law is normally contract-based,93
emanates from consensual agreements and practices of participating private
parties, engaged in horizontal, non-authoritative relationships, defined by at
least formal equality of parties. One example of this type of private transna-
tional law is the so-called new lex mercatoria (merchant law).94 Stone
Sweet has fittingly defined it as ‘the totality of actors, usages, organizational
techniques, and guiding principles that animate private, transnational
trading relations’.95 The new lex mercatoria consists of two distinct, but
related bodies of norms: substantive and procedural. The first encompasses
rules, principles and standards of the nascent transnational contract law.96
The second body of law governs and institutionalises the procedural mechan-
isms, largely arbitral, for resolving disputes related to transnational trade.97
Driven by the functionalist agenda of facilitating transnational trade both
sets of rules for the new lex mercatoria were initially practice-based, and
have therefore evolved spontaneously to be incrementally taken up and codi-
fied by private transnational specialised associations and chambers of pro-
fessional interests.98 To ensure the autonomy of the new lex mercatoria this
codification has been deliberately done without involving national govern-
ments. States, however, while still the principal and ultimate enforcers of
the new lex-mercatoria,99 have for a variety of instrumental reasons,100 as
well for the simple reason of their incapacity to provide functional means
to foster transnational trade,101 recognised this autonomy and created ever
more room for it.
Another type of private transnational law derives from self-regulatory
activities of the organs of transnational corporations. This is transnational
corporate law, which consists of norms regulating internal governance of

93
Cata Backer (n 91) 769: ‘These regulatory regimes are not effectuated using the well-known tools of
state regulations—positive law and judicial and administrative decisions. Rather, contract serves as
the means by which the ‘law’ of this system is memorialized and made binding’.
94
For an overview of the development of the lex mercatoria and the new lex mercatoria as well as on
diverging theoretical opinions on it see Klaus-Peter Berger, The Creeping Codificiation of the New Lex
Mercatoria (Kluwer Law International, 2010).
95
Alec Stone Sweet, ‘The new Lex Mercatoria and Transnational Governance’ 2006 13(5) Journal of Euro-
pean Public Policy 629.
96
Ibid, 633–5. These can also form a coherent body of legal norms in a designated functional field, such as
the laws regulating the carriage of goods by sea (lex maritima), see, for example: William Tetley, ‘The
General Maritime Law—The Lex Maritima’ (1994) 20 Syracuse Journal of International Law and Com-
merce 133.
97
Stone Sweet (n 95) 635–7.
98
The most important among them is UNCITRAL, also the International Chamber of Commerce etc.
99
Which leads traditionalists to argue that even the new lex mercatoria is still state-dependent law, see
Stone Sweet (n 95) 637.
100
Ibid, 639–640. The author mentions three reasons: to attract transnational trade; to relieve the national
judiciary of overload of cases, to attract financially stimulating transnational arbitral bodies.
101
Ibid. The author believes that ‘state-supplied institutions governing trade probably reached their func-
tional limits no later than in the 1960s’.
18 M. AVBELJ

corporations and the relationships between corporations.102 Due to their

growing economic power and increased mobility of capital, multinational cor-
porations have increasingly outgrown the regulatory territorial bounds of par-
ticular states and outwitted their monopoly of power. They are nowadays
increasingly able to forum-shop for the best national regulations and can,
especially in relation to developing countries, impose their standards and
regulatory expectations over the national laws of those countries. In many
ways, transnational corporations have become their own, autonomous rule-
makers. Their rules, developed independently of national legal and political
influences, usually come into being and are enforced through contract.
They often take the form of soft-law, with effects functionally paralleling
those of hard law.103 Internally these rules, created by the governing bodies
of the corporations alone104 or in consent with stakeholders in the corporate
supply chain, tend to govern the overall corporate activity of an enterprise.105
Externally, these rules come into being and regulate on a voluntary participa-
tive basis the relationships among the community of enterprises.106 Transna-
tional corporate law thus stands for the private, autonomous, increasingly
institutionalised law-making capacities of transnational corporations, who
conduct their business across national frontiers, on transnational, even
global, planes in select, narrow or more encompassing functional economic
domains.107

6. Modernity, post-modernity and transnational law

Having drawn the map of transnational law, it becomes clear that the legal
landscape has been changed dramatically in the last few decades. With the
emergence of transnational law, we have seen the arrival of a post-modern
concept of law. In Zumbansen’s words: ‘transnational law works itself like a
drill through the few remaining blankets hastily thrown over an impoverished
and internally decaying conceptual body [of modern law]’.108 As an object of
the process of post-modernisation, the modern concept of law has thus been
profoundly affected in all of its constitutive elements, but foremost in its statist
character.
102
With regard to the distinction between internal and external transnational corporate rules I am
drawing on Cata Backer (n 91).
103
Ibid, 765.
104
The most well-known acts of this sort are the codes of corporate governance. They are normally
drafted by non-state actors, such as NGOs, private industry institutes or corporate actors. See Peer
Zumbansen, ‘Neither “Public” nor “Private”, “National” nor “International”: Transnational Corporate
Governance from a Legal Pluralist Perspective’ (2010) 22 Osgoode CLPE Research Paper 19.
105
Cata Baker (n 91) 762.
106
Ibid.
107
Ibid, 756.
108
Peer Zumbansen, ‘Transnational Law’ (2008) 9 CLPE Research Paper 739.
 TRANSNATIONAL LEGAL THEORY 19

While modern law has been almost exclusively associated with the state as
a territorial entity, transnational law is largely a product of non-statist func-
tional entities. The state has obviously lost its monopoly over law-making.
It has ceased to be an exclusive source of law. Multiple sites of law-making
on the subnational, national, international, supranational and global levels
with increasingly plausible claims to their own legal autonomy (to the
quality of its own legal order rather than just a set of legal rules) have come
into being and unsettled the modernist vision of law. Despite the fact that
we have been ‘brainwashed to see the state as an essential part of the
law’,109 our world now contains a plurality of sources of law. Ours is thus
the era of legal poly-centricity.110
Contemporary law is increasingly created by private or hybrid, rather than
by public actors alone. Indeed, with postmodern social, economic and techno-
logical processes111 the traditional public-private divide has become
blurred.112 Simultaneously the traditional understanding of sovereignty,
where sovereignty is an absolute, indivisible, unitary property of a territorially
delimited state, which ultimately autonomously and exhaustively governs its
internal affairs and enjoys equal independence externally in relation to other
states, has subsided.113 With new, non-statist, non-territorial, largely func-
tional juris-generative entities, some have called for a refined understanding
of sovereignty,114 while others have even declared it dead or at least obso-
lete.115 As sovereignty has evolved from an exclusively territorial to a func-
tional concept, the law too is increasingly becoming a functionally, rather
than just a territorially bound phenomenon.
In the law’s formal dimension, due to the demise of the monopoly over its
creation, its central tenet of hierarchy has been significantly undermined,
perhaps even abandoned. The plurality of legal sources, giving rise to a plur-
ality of legal orders and regimes, relating in a heterarchical, rather than
109
Thoma Waelde, ‘Edited version of the Lex Mercatoria Discussion on the OGEMID (Oil-Gas-Energy-
Mining-Infrastructure Dispute Management), Discussion Forum between November 5, 2003 and
November 11, 2003’, online: <www.trans-lex.org/lex-mercatoria-and-lawyers_ID15> (last visited
January 8, 2016).
110
Tuori (n 56) 24: ‘“Polycentricity” connotes a multiplication of sources of law; the fact that new partici-
pants have been granted access to legal discourse, where the ever-changing content of the legal order
is determined’.
111
The technological breakthrough in the last decades has been described as ‘the most powerful engine
of change in the relative decline of states and rise of nonstate actors’. See Jessica T. Mathews, ‘Power
Shift’ (1997) 76 Foreign Affairs 51.
112
For an analysis, see Hans-W. Micklitz, ‘Rethinking the Public/Private Divide’ in Miguel Maduro, Kaarlo
Tuori, Suvi Sankari (eds), Transnational Law (Cambridge University Press, 2014); Inger-Johanne Sand,
‘Globalization and the Transcendence of the Public/Private Divide—What is Public Law under Con-
ditions of Globalization’ in Cormac Mac Amhlaigh, Claudio Michelon, Neil Walker (eds) After Public
Law (Oxford University Press, 2013).
113
Avbelj (n 7).
114
Ibid.
115
Stephen D Krasner, ‘Think Again: Sovereignty’ (2001) 121 Foreign Policy 20; Richard Bellamy, Dario Cas-
tiglione, ‘Building the Union: The Nature of Sovereignty in the Political Architecture of Europe’ (1997)
16 Law and Philosophy 421.
20 M. AVBELJ

hierarchical way, has inevitably also affected modern law’s promise of order.
The order to be ensured by the law has been threatened by a plurality of juris-
generative sites and the fragmentation of laws in the absence of a clear-cut
hierarchy.116 Plurality and fragmentation are obstacles in the way of coher-
ence, stability and consequently to predictability and certainty. These have
all been the central values of modernity and the outcomes anticipated from
the modern concept of law. The postmodern concept of law, epitomised by
transnational law, puts all of the referred formal elements of the modern
concept of law into question.117 But it does so with its substantive side.
The aforementioned plurality and fragmentation also mean that the sub-
stantive values embodied and protected by different legal orders and
regimes differ, too. This undermines modern law’s presumption, indeed insis-
tence, on the universality of legal substantive standards, most notably human
rights. It is thus not only the formal framework of the law, which is being
strained by the emergence of transnational law, but also the substantive foun-
dations from which it draws and is there to protect. Postmodern law therefore
features formal legal plurality, rather than unity, and substantive value-diver-
sity, rather than uniformity.
However, the challenges of transnational law go even further than the reas-
sessment of the modern concept of law. They trigger the rethinking of our
legal thought—of the very way we reason in and about the law. This has tra-
ditionally been embedded in the monistic mindset, whose supreme substan-
tive value is order, relying on the procedural apparatus of binary logic.
Glenn confirms this by observing that ever since Plato, but reinforced by
the modernist legal thought since the peace of Westphalia, western lawyers
have been adhering to the pattern of ‘hierarchical dualism’, underlined by
the laws of identity, of non-contradiction and of the excluded middle.118 To
grasp the richness of postmodern transnational law it is, however, necessary
to look at the spaces in-between the existing legal dichotomies. To do so
the present binary logic has to be supplemented119 by fuzzy or multi-value
logic,120 which allows for a multivalent approach and brings back in the
long excluded middle.121
The process of transition from modernity to post-modernity has thus led to
the transformation of modern law as its object and resulted in the creation of

116
Gunther Teubner and Andreas Fischer-Lescano, ‘Regime-Collisions: The Vain Search for Legal Unity in
the Fragmentation of Global Law’ (2004) 25(4) Michigan Journal of International Law 999.
117
Peer Zumbansen, ‘Defining the Space of Transnational Law: Legal Theory, Global Governance, and
Legal Pluralism’ (2012) 21 Transnational Law & Contemporary Problems 314.
118
Glenn (n 36) 62–3.
119
Ibid, 68, Glenn makes it clear that fuzzy logic is inclusive of rather than in contradiction with the binary
logic: ‘Multivalent logic can be used where it is appropriate to do so, without entailing the abandon-
ment of historically useful binary distinctions in domestic law’.
120
JC Beal and Greg Restall, Logical Pluralism (Oxford University Press, 2006).
121
Glenn (n 36) fn 52.
 TRANSNATIONAL LEGAL THEORY 21

transnational law with several post-modern characteristics. However, once

transnational law has come into being, it has ceased to be just the product
of post-modernity. It has also become its source and generator: a subject of
post-modernity. For that it has been well suited. After all, we are speaking
about transnational law and the law as law has always had an upper hand
in the process of construction of social reality,122 be it modern or post-
modern.
This is due to the fact that law is an institutional normative order.123 Its
normative prescriptions, because they are legal, are typically awarded a high
degree of obedience.124 Furthermore, legal normative prescriptions are also
enforceable by an organised power of a softer or, if necessary, even physical
kind exercised by institutions. The law has a special capacity for institutiona-
lising normative prescriptions; turning these from the ideational world into
practice.125 This is done by institutions. It is the institutions that produce a
lasting impact in the social world by generating and enforcing new norms
and creating new institutions. This leads to the creation of further norms
and additional institutions, all in response to practical, functional demands.126
As we have seen, transnational law has established itself as an institutional
normative order. It has a plethora of institutions, which on a daily basis, inde-
pendently of the traditional monopolist juris-generative site of the state,
produce new regulations, norms and institutions, resulting in material
changes in the outside world. As a form of post-modern law, transnational
law nowadays serves as an institutional anchor of post-modernity. It has
grown to the point at which it has become a self-perpetuating force, an auton-
omous system of legal norms destined to grow both in terms of its scope and
influence. It will do so, however, at the expense of the state and its modern
concept of law.127
In the future, we will thus observe a further expansion of transnational law
and its institutions. This will accelerate the process of post-modernisation.
The latter might become irreversible. With the central role of the state declin-
ing further, we will see the proliferation of new legal authorities, a plurality of

122
On social construction of reality see Peter L. Berger and Thomas Luckmann, The Social Construction of
Reality, a Treaties in the Sociology of Knowledge (Penguin books, 1971); Alfred Schuetz, The Phenomen-
ology of the Social World (Northwestern University Press, 1967); John R Searle, The Construction of Social
Reality (Allen Lane, 1995).
123
Neil MacCormick, Institutions of Law: An Essay in Legal Theory (Oxford University Press, 2008) 1.
124
Hart (n 52) 51.
125
Institutionalisation has been classically defined as a process of reciprocal typification of habitualised
actions by types of actors, whereby institutions further imply historicity and control. See, Berger
and Luckmann (n 121) 72.
126
Jean Monnet has thus stressed in his Memoirs (Double Day Company, 1978): ‘Nothing is possible
without men; nothing is lasting without institutions’.
127
But see Poul F. Kjaer, ‘Transnational Normative Orders: The Constitutionalism of Intra- and Trans-Nor-
mative Law’ 2013 20(2) Indiana Journal of Global Legal Studies 20:2, 781, who has argued that ‘one
cannot and should not see statehood and the existence of extensive forms of transnational social
ordering as related to each other on the basis of a zero-sum game’.
22 M. AVBELJ

new juris-generative, and hence also epistemic and normative sites. They will
be backed up by power sufficient to preserve and further the institutionalisa-
tion of transnational norms.128 This power will not be of a physical kind. The
monopoly over physical means of coercion will still remain, more or less, in
the hands of the state. The power of transnational institutions will be episte-
mic and, in particular, economic.129
Due to the total mobility of capital, the institutions and actors of new lex
mercatoria and of transnational corporate law will grow stronger, further
weakening the economic foundations of states, which are the prerequisite
for the execution of all other state functions. In the absence of funds on the
national level, we will see a further push towards privatisation of state func-
tions as well as new waves of replacement of modern forms of economic pro-
duction with the post-modern ones. Further growth of a post-modern
economic model will be thus facilitated by the present institutions of
private, but also hybrid transnational law, which will, in turn, lead to the
emergence of new forms of transnational law in response to the functional
demands of the post-modern economy.
The plurality of juris-generative sites, institutional authorities and episte-
mic sites is thus expected to amplify. This will increase the complexity of
the world and add to its fragmentation. With many centres of knowledge-cre-
ation and competing scientific claims, we will see a further decline of moder-
nist ‘objective’ scientific authority, as well as trust and reliance in reason. The
experience that everything is increasingly contingent will be bound with a
mounting impression that social affairs due to a growing number of players
involved occur at an ever faster pace. At least initially, this will worsen feelings
of anxiety and distress,130 that are typical of a post-modernist mindset.
Social activities will be even less bound to specific territories and will
increasingly take place not just beyond states, but in a virtual cloud. The con-
stituencies will become narrower, more numerous, specialised and driven
towards the pursuit of their functional goods with a declining sense for the
importance of the common good of the common whole characteristic of mod-
ernity and its law.131 The degree of disorder, both actual and perceived, will
mount. Transnational law will thus create a virtuous cycle, spinning in the
direction of an ever deeper and ever wider post-modern condition.

128
Halliday and Shaffer have argued that transnational law’s institutionalisation is a function of two
factors: ‘(a) the concordant settlement of legal norms at the transnational, national, and local levels
and (b) the alignment of [transnational law] with an issue’. See Terence C. Halliday, Gregory
Shaffer, ‘Researching Transnational Legal Orders’ in Halliday, Shaffer (eds), Transnational Legal
Orders (Cambridge University Press, 2015) 492.
129
Roger Cotterrell, ‘What Is Transnational Law’ (2012) 37(2) Law and Social Inquiry 520.
130
Shaffer (n 62).
131
See also Teubner, Fischer-Lescano (n 116) 1011–2 who have argued that the new regimes are not pol-
itical, comprehensive, but self-jurdicised social fragments, specific clusters/sectors of society.
 TRANSNATIONAL LEGAL THEORY 23

As the modern concept of law, epitomised by the law of a sovereign state,

was a product of modernity, its object, but also its subject: a perpetuating
force, an instrument for institutionalising the modernist condition from the
Peace of Westphalia to the twentieth century, so is the emerging post-
modern concept of law, epitomised by transnational law, a product of the
process of post-modernisation. It is, by way of its creation, an object of
post-modernity, but as we have seen above, it has also become its influential
subject. A subject which has caused a transformation in the modern concept
of law and which is now fuelling the apparently irreversible process of ever
speedier transition from modernity to post-modernity.
This is not to argue that modernity and the modern concept of law have
faced an ultimate demise or even that this will happen in the near future. It
is only to argue that the post-modernist social and legal trends, the latter in
the form of transnational law, are on the rise, while modernity and the
modern concept of law are abating. This is a point, which is important to
note, as it is equally important to understand how and why the law has
played a double role in this process. It has been both an object and a
subject of the process of transformation from modernity to post-modernity.
This process is still unfinished and we will continue to see the mixture of mod-
ernity preserving and post-modernity enhancing trends in the future. The
simultaneous existence of two diverging trends will not only fuel the
impression of a crisis, but it will also cause crises in practice. To respond to
them successfully, it will first be necessary to understand as accurately and
comprehensively as possible their underlying causes. This article has been a
modest attempt at contributing to this objective by elucidating the shift
from modernity to post-modernity and the role of (transnational) law in it.

Acknowledgements
I would like to thank the anonymous reviewer for their useful advice in improving this
article. All errors, naturally, remain mine.

Disclosure statement
No potential conflict of interest was reported by the authors.

Funding
This work was supported by the Slovenian Research Agency [grant number Z5-5543].